Perotti v. Holt
Opinion of the Court
ORDER
John Perotti appeals from the denial of his petition under 28 U.S.C. § 2241 for a writ of habeas corpus. The district court denied Perotti’s petition on the ground that he had filed it without first exhausting his administrative remedies. On appeal Perotti argues that he tried to exhaust those remedies and that any further effort would have been futile. We affirm the judgment, but our reasoning differs from that of the district judge.
Perotti is serving a 210-month sentence as an Armed Career Criminal for possession of a firearm by a felon. See 18 U.S.C. §§ 922(g), 924(e)(i). In October 2009, while he was housed at the United States Penitentiary in Terre Haute, Indiana, a guard lodged an incident report accusing Perotti of threatening another person with bodily harm and displaying insolence toward a staff member in violation of Codes 203 and 312 of the Bureau of Prisons’ Inmate Discipline Program. According to the incident report, Correctional Officer Vair had been escorting Perotti through the prison when Perotti called him a “piece of shit” and said that if he “was fifteen years younger I would stick some steel in you for doing this to me.” Perotti was given a copy of the incident report.
Perotti appeared before a Discipline Hearing Officer on November 13, 2009. He requested that his newly appointed staff representative, Nicole Slaughter, view a security camera video of the incident before the hearing, but by then the tape already had been recorded over. (At Perotti’s request, Slaughter had replaced his previous staff representative, Leanna Payton. Payton had reviewed the tape before it was recycled.) At the hearing Perotti argued that his words should not be labeled a threat because he simply had been speculating about what might have happened if he was younger rather than threatening immediate or future harm. In fact, Perotti insisted, Vair himself had said that the “piece of shit” remark would have gotten Perotti “jumped” if not for his age. Vair denied saying anything threatening to Perotti, and no other witness had overheard the encounter.
The DHO reasoned that Vair had no reason to lie and thus credited his version of the verbal exchange. The DHO also found that Perotti’s words were threatening and that he was trying to intimidate the officer. The DHO concluded at the hearing that Perotti had violated Code 299, rather than Codes 203 and 312, by engaging in conduct that disrupted the orderly running of the institution. Perotti was placed in disciplinary segregation for 30 days and lost 27 days of good-time credit plus 60 days of visiting and telephone privileges.
Perotti then petitioned for habeas-cor-pus relief.
On appeal Perotti disputes the conclusion that he failed to exhaust his administrative remedies. He maintains that the regional office should have accepted and addressed his first two attempted appeals because he still did not have the DHO report and regulations allowed an appeal to proceed as long as he included information about the charges and the hearing he was challenging. He argues that further attempts to exhaust administrative remedies would have been futile. The BOP ignores Perotti’s contention that providing the regional office a copy of the DHO’s written decision was not essential. The BOP also remains silent about the merits decision Perotti received on his third appeal to the regional office.
We cannot say that the record in this case establishes a lack of exhaustion, which is not jurisdictional. See Schiselman v. United States Parole Comm’n, 858 F.2d 1232, 1234 n. 1 (7th Cir. 1988); Raine v. Carlson, 826 F.2d 698, 703 (7th Cir. 1987); Garza v. Davis, 596 F.3d 1198, 1205 (10th Cir. 2010); Elwood v. Jeter, 386 F.3d 842, 844 n. 1 (8th Cir. 2004). The BOP rests its nonexhaustion defense entirely on the premise that Perotti was not permitted to appeal the DHO’s decision until it was
Still, we may affirm the judgment on any ground raised in the district court, Barton v. Zimmer, Inc., 662 F.3d 448, 454 (7th Cir. 2011), and here the BOP persists with its contention that Perotti’s disciplinary proceedings met the requirements of due process. Perotti has waived any argument on the merits of his § 2241 petition by not filing a reply brief disputing the BOP’s merits analysis. See Doe v. United States, 51 F.3d 693, 699 (7th Cir. 1995). Even if he had not waived it, his claim that he was denied due process at the DHO hearing nonetheless would fail because Perotti received advance notice of the charges, an opportunity to call witnesses and present evidence, and a written decision from the DHO detailing the evidence relied on and the reasons for the disciplinary action. These protections satisfy the requirements of due process. See Jones v. Cross, 637 F.3d 841, 845 (7th Cir. 2011); Scruggs v. Jordan, 485 F.3d 934, 939 (7th Cir. 2007). And the evidence against Perotti — an incident report and a statement from Correctional Officer Vair — was sufficient to support the DHO’s determination. See United States v. Kizeart, 505 F.3d 672, 675 (7th Cir. 2007); Webb v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000); McPherson v. McBride, 188 F.3d 784, 786 (7th Cir. 1999).
Accordingly, we AFFIRM the judgment of the district court.
. After he filed his petition, Perotti was transferred to the United States Penitentiary Canaan in Pennsylvania. We have substituted as the respondent the warden at USP Canaan. See Bridges v. Chambers, 425 F.3d 1048, 1050 (7th Cir. 2005).
Reference
- Full Case Name
- John W. PEROTTI v. Ronnie R. HOLT
- Status
- Published