Wallace Mitchell v. Donald Romine

Mitchell is serving thirty-five years to life imprisonment for murder.1
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-4224
________________
WALLACE MITCHELL,
Appellant
v.
DONALD ROMINE
_______________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 01-cv-01788)
District Judge: Honorable Christopher C. Conner
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
October 14, 2005
Before: SLOVITER, BARRY AND FISHER, Circuit Judges.
(Filed: October 17, 2005)
_______________________
OPINION
_______________________
PER CURIAM
Wallace Mitchell, a District of Columbia offender in federal custody, appeals the1
denial of his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Finding no
error, we will affirm.

-- 1 of 5 --

2
I.
Mitchell filed a pro se amended § 2241 petition challenging approximately twenty-
two disciplinary reports issued against him while he was incarcerated at USP-Lewisburg
in Pennsylvania as well as the accuracy of the information about his disciplinary history
contained in his “Security/Designation Sheet.” Mitchell sought to have the reports
expunged from his record, and to have his good-time credits restored.
The Magistrate Judge found that Mitchell did not exhaust administrative remedies
as to sixteen of the disciplinary reports. Concerning the six claims Mitchell properly
exhausted, the Magistrate Judge found that the disciplinary hearings comported with the
due process standard set forth in Wolff v. McDonnell, 418 U.S. 539 (1974). Accordingly,
the Magistrate Judge recommended dismissing the unexhausted claims, and denying on
the merits the exhausted claims. The District Court adopted the Report and
Recommendation, finding claims one, two, five, six, seven, eight, nine, ten, twelve,
fifteen, seventeen, eighteen, nineteen, twenty, twenty-one, and twenty-two were
unexhausted and also inexcusably defaulted. The court rejected on the merits the
remaining exhausted claims. This appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the
District Court’s denial of habeas corpus relief and its interpretation of the applicable
statutes. Gerbier v. Holmes, 280 F.3d 297, 302 (3d Cir. 2002).
As to claims five through ten and twelve, Mitchell contends that the District Court
erred in finding that he did not properly exhaust administrative remedies by filing his

-- 2 of 5 --

Inasmuch as the District Court properly concluded that Mitchell’s unexhausted2
claims are also procedurally defaulted, the proper course was a dismissal of the claims on
the merits rather than dismissal without prejudice. See Moscato, 98 F.3d at 762.
3
appeal directly with the Regional Director. See Br. at 8, 18. Mitchell fails to recognize,
however, that these disciplinary decisions were issued by the Unit Disciplinary
Committee (“UDC”), not the Disciplinary Hearing Officer (“DHO”), and thus he was not
permitted to appeal directly to the Regional Director. See 28 C.F.R. §§ 541.15, 541.19,
542.14(d)(2). Therefore, the District Court properly held that Mitchell failed to meet the
exhaustion requirements as to these claims. See Moscato v. Fed. Bureau of Prisons, 98
F.3d 757, 760-62 (3d Cir. 1996).
Mitchell next contends that the District Court erred in finding that the
administrative appeal for claim fifteen was untimely filed. See Br. at 28. An inmate may
appeal a Warden’s response to the Regional Director “within 20 calendar days of the date
the Warden signed the response.” 28 C.F.R. § 542.15(a) (emphasis added). The record
reflects that Mitchell filed his appeal more than thirty days after the date of the response.
Furthermore, Mitchell has not demonstrated a valid reason or “cause” to excuse the
untimely filing. See id. Therefore, we agree with the District Court that the
administrative appeals were untimely, and thus correctly dismissed. See Moscato, 98
F.3d at 760-62.2
Mitchell also contends that as to the six exhausted claims, he was denied
procedural due process because: (1) he was not given an adequate opportunity to present
witnesses at his disciplinary hearings; (2) the DHO was not impartial; (3) the DHO’s

-- 3 of 5 --

4
decision did not meet the criteria for presentation of “some” evidence; and (4) the staff
member assigned to assist Mitchell in preparing for the disciplinary hearings was not
Mitchell’s choice and did not adequately represent Mitchell. See Br. at 21-28, 29. We
reject these contentions. The record reflects that Mitchell received: (1) written notice
well in advance of the hearings; (2) a full and fair opportunity to present witnesses and
documentary evidence; (3) assistance from a staff member in presenting his defense,
preparing a statement, and appearing on Mitchell’s behalf; (4) a sufficiently impartial
tribunal; and (5) a written statement by the DHO or UDC as to the evidence relied on and
the reasons for the decisions. See Wolff, 418 U.S. at 563-572. Moreover, Mitchell’s
argument that he is entitled to select the staff member to represent him in a disciplinary
hearing lacks merit. See 28 C.F.R. § 541.17(b); Wolff, 418 U.S. at 570. Finally, for each
incident, there was sufficient evidence presented to support the UDC or the DHO’s
conclusions, including, inter alia, Mitchell’s admissions, eyewitness accounts, and
documentary evidence. See Wolff, 418 U.S. at 564-65; Superintendent v. Hill, 472 U.S.
445, 455-56 (1985). Therefore, the District Court properly rejected these due process
claims on the merits.
Finally, we reject Mitchell’s contention that as an inmate convicted in the District
of Columbia, the Bureau of Prisons had no authority to take away his good-time credits.
See Field v. Keohane, 954 F.2d 945, 949-51 (3d Cir. 1992).

-- 4 of 5 --

5
III.
We have fully considered the remaining arguments raised by Mitchell on appeal,
and find that these arguments lack merit and warrant no further discussion. For the
foregoing reasons, we will affirm the District Court’s judgment.

-- 5 of 5 --