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Pennsylvania Prisoner Allowed Untimely Appeal Of Disciplinary Decision
The Commonwealth Court of Pennsylvania held that a state prisoner should be
allowed to file an out of time appeal because he had received no answer
regarding the administrative disposition of his appeal of a disciplinary
decision.
Eric Tulio, a prisoner in the Pennsylvania Department of Corrections (DOC),
was issued a disciplinary citation for overdosing on a controlled
substance. Tulio was ultimately found guilty, sentenced to 30 days in the
restrictive housing unit, and ordered to reimburse the DOC $4,101.60 in
medical expenses through his prisoner account.
In January 1997, Tulio filed a grievance relating to the monetary
assessment. A hearing was ordered and the deductions were postponed pending
the outcome. On June 8, 1999, the assessment was upheld by the Secretary of
the DOC and the deductions resumed. On February 6, 2002, Tulio filed a
second grievance concerning the assessment, which was also denied. That
denial was affirmed on April 15, 2002.
On May 1, 2002, Tulio filed a pro se petiton for review of the April 15,
2002, decision seeking "cessation of deductions from his account and
reimbursement of money already paid." The DOC moved for judgment on the
pleadings arguing that Tulio's appeal was untimely because he did not file
an appeal within 30 days of the June 8, 1999 decision. Tulio maintained
that he was unable to timely appeal because he never received a copy of the
June 8, 1999, decision. A copy of the decision provided by the DOC revealed
that it had been sent to SCI-Huntingdon, even though Tulio had been moved
to another prison. The DOC further argued that Tulio had constructive
notice of the June 8, 1999 decision when the deductions resumed.
In ruling on Tulio's petition, the Commonwealth Court of Pennsylvania held
that Tulio did not have actual or constructive notice, as evidenced by his
actions. When the deductions resumed after the June 8, 1999, decision,
Tulio complained to an account representative and subsequently filed his
second grievance. Moreover, on February 6, 2000, and again on March 14,
2001, Tulio sent letters to the DOC's deputy chief counsel complaining that
he was still awaiting a decision on the June 8, 1999, hearing.
Accordingly, the Court denied the DOC's motion and ordered it to serve
Tulio with a copy of the June 8, 1999, decision within 20 days and granted
Tulio 30 days in which to file a petition for review nunc pro tune. See:
Tulio v. Beard, 858 A.2d 156 (Pa. 2004).
allowed to file an out of time appeal because he had received no answer
regarding the administrative disposition of his appeal of a disciplinary
decision.
Eric Tulio, a prisoner in the Pennsylvania Department of Corrections (DOC),
was issued a disciplinary citation for overdosing on a controlled
substance. Tulio was ultimately found guilty, sentenced to 30 days in the
restrictive housing unit, and ordered to reimburse the DOC $4,101.60 in
medical expenses through his prisoner account.
In January 1997, Tulio filed a grievance relating to the monetary
assessment. A hearing was ordered and the deductions were postponed pending
the outcome. On June 8, 1999, the assessment was upheld by the Secretary of
the DOC and the deductions resumed. On February 6, 2002, Tulio filed a
second grievance concerning the assessment, which was also denied. That
denial was affirmed on April 15, 2002.
On May 1, 2002, Tulio filed a pro se petiton for review of the April 15,
2002, decision seeking "cessation of deductions from his account and
reimbursement of money already paid." The DOC moved for judgment on the
pleadings arguing that Tulio's appeal was untimely because he did not file
an appeal within 30 days of the June 8, 1999 decision. Tulio maintained
that he was unable to timely appeal because he never received a copy of the
June 8, 1999, decision. A copy of the decision provided by the DOC revealed
that it had been sent to SCI-Huntingdon, even though Tulio had been moved
to another prison. The DOC further argued that Tulio had constructive
notice of the June 8, 1999 decision when the deductions resumed.
In ruling on Tulio's petition, the Commonwealth Court of Pennsylvania held
that Tulio did not have actual or constructive notice, as evidenced by his
actions. When the deductions resumed after the June 8, 1999, decision,
Tulio complained to an account representative and subsequently filed his
second grievance. Moreover, on February 6, 2000, and again on March 14,
2001, Tulio sent letters to the DOC's deputy chief counsel complaining that
he was still awaiting a decision on the June 8, 1999, hearing.
Accordingly, the Court denied the DOC's motion and ordered it to serve
Tulio with a copy of the June 8, 1999, decision within 20 days and granted
Tulio 30 days in which to file a petition for review nunc pro tune. See:
Tulio v. Beard, 858 A.2d 156 (Pa. 2004).
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Related legal case
Tulio v. Beard
| Year | 2004 |
|---|---|
| Cite | 858 A.2d 156 (Pa. 2004) |
| Level | State Court of Appeals |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | N/A |
[U] Tulio v. Dep't of Corrections, No. 2667 C.D. 2004 (Pa.Commw. 05/04/2005)
[1] IN THE COMMONWEALTH COURT OF PENNSYLVANIA
[2] No. 2667 C.D. 2004
[3] 2005.PA
[4] May 4, 2005
[5] ERIC TULIO, PETITIONER
v.
DEPARTMENT OF CORRECTIONS, RESPONDENT
[6] Before: Honorable James Gardner Colins, President Judge, Honorable Rochelle S. Friedman, Judge, Honorable Joseph F. McCLOSKEY, Senior Judge.
[7] The opinion of the court was delivered by: Senior Judge McCLOSKEY
[8] Submitted: April 1, 2005
[9] OPINION NOT REPORTED
[10] MEMORANDUM OPINION
[11] Eric Tulio (Petitioner) petitions for review of an order of Department of Corrections (DOC), dated June 8, 1999, directing Petitioner to reimburse DOC the sum of four thousand one hundred and one dollars and sixty cents ($4,101.60), such reimbursement to be made through an assessment to his inmate account, in connection with a misconduct committed by Petitioner.
[12] On November 22, 1994, Petitioner, an inmate in the custody of DOC, suffered a heroin overdose. As a result, he was transported by ambulance to a hospital where he received medical treatment. On November 28, 1994, Petitioner pleaded guilty to a misconduct relating to the unauthorized use of a controlled substance.
[13] A Holloway hearing was conducted on August 14, 1997, to determine the amount of costs incurred by DOC as a result of Petitioner's misconduct.*fn1 As a result of the hearing, the hearing examiner issued proposed findings of fact and conclusions of law, thereby assessing Petitioner four thousand one hundred and one dollars and sixty cents ($4,101.60), which represented the full cost of the medical treatment paid by DOC in connection with his misconduct. By order dated June 8, 1999, upon consideration of exceptions filed, DOC adopted the proposed report of the hearing examiner and further explained that "an inmate found guilty of misconduct may be required to pay 'for expenses incurred as a result of the misconduct.'" (DOC's Order at p. 1). Petitioner filed a petition for review with this Court.*fn2
[14] On appeal, Petitioner argues that 37 Pa. Code §93.10 does not authorize DOC to sanction an inmate with medical costs that result from an institutional misconduct, nor does it give DOC any authorization to actually make medical deductions from an inmate's account. Petitioner also argues that DOC has violated his Constitutional rights to equal protection and due process. Finally, he argues that DOC acted improperly when it assessed him the full cost of his medical care, as compared to two-thirds of the cost of medical care as required by 37 Pa. Code §93.12(e).
[15] First, we will address Petitioner's argument that 37 Pa. Code §93.10 does not authorize DOC to sanction an inmate with medical costs that result from an institutional misconduct, nor does it give DOC any authorization to actually make medical deductions from an inmate's account. In support of that argument, Petitioner argues that because he was charged with a Class I misconduct, which was not reduced to a Class II misconduct, 37 Pa. Code §93.10 is inapplicable.
[16] The relevant section of the Pennsylvania Code provides, as follows:
[17] (1) Inmates found guilty of Class I misconduct charges may be subjected to one (1) or more of the following sanctions:
[18] (i) Reduction of the classification of the misconduct to a Class II misconduct and any sanction permitted for Class II misconducts.
[19] (ii) A sanction permitted for Class II misconducts, without change in class of misconduct.
[20] (2) Inmates found guilty of Class II misconduct may be subjected to one (1) or more of the following sanctions:
[21] (iii) Payment of the fair value of property lost or destroyed or for expenses incurred as a result of the misconduct.
[22] 37 Pa. Code §93.10.
[23] The plain language of 37 Pa. Code §93.10 allows DOC to assess an inmate for "expenses incurred as a result of the misconduct."*fn3 This Court has consistently upheld DOC's authority to make financial assessments against an inmate's account pursuant to 37 Pa. Code §93.10.*fn4 Therefore, we must reject Petitioner's argument to the contrary.
[24] Next, we will address Petitioner's argument that DOC has violated his Constitutional right to equal protection and due process. Petitioner appears to argue that he has been denied equal protection and due process because DOC made the assessment against him pursuant to 37 Pa. Code §93.10, when it could have made the assessment against him pursuant to 37 Pa. Code §93.12(e), as it did against the prisoner in Byrd. Petitioner's argument lacks merit. In Byrd, this Court concluded that 37 Pa. Code §93.12(e) could not be applied retroactively to misconduct and resulting medical costs that occurred prior to the effective date of 37 Pa. Code §93.12(e). The misconduct and medical costs that were assessed in this case occurred prior to the effective date of 37 Pa. Code §93.12(e). See footnote 3, above. Hence, any argument by Petitioner based upon the proposition that DOC acted improperly by not applying 37 Pa. Code §93.12(e) must fail.
[25] Additionally, in Correll v. Department of Transportation, 726 A.2d 427 (Pa. Cmwlth. 1999), we discussed equal protection violations as follows:
[26] The equal protection clause protects an individual from state action that selects him out for discriminatory treatment by subjecting him to a provision in the law not imposed on others of the same class. In Curtis v. Kline 542 Pa. 249, 666 A.2d 265 (1995), our Supreme Court discussed the principle of equal protection as follows:
[27] The essence of the constitutional principle of equal protection under the law is that like persons in like circumstances will be treated similarly. However, it does not require that all persons under all circumstances enjoy identical protection under the law. The right to equal protection under the law does not absolutely prohibit the Commonwealth from classifying individuals for the purpose of receiving different treatment, and does not require equal treatment of people having different needs.
[28] Id at 255, 666 A.2d at 267-68. (citations omitted).
[29] Correll, 726 A.2d at 430 (citations omitted).
[30] In the case at hand, we cannot say that Petitioner was similarly situated with the prisoner in Byrd. In Byrd, the prisoner was assessed medical costs in connection with an assault on another prisoner. In the case at hand, Petitioner was assessed costs in connection with misconduct relating to a self-inflicted drug overdose.
[31] Finally, we must address Petitioner's argument that DOC acted improperly when it assessed him the full cost of his medical care, as compared to two-thirds of the cost of medical care as required by 37 Pa. Code §93.12(e). First, we must again note that 37 Pa. Code §93.12(e) was not in effect at the time that Petitioner engaged in the misconduct and received medical care. Additionally, 37 Pa. Code §93.12(e) provides that "an inmate is required to pay a fee equivalent to two-thirds of the total cost of medical services provided to another inmate as a result of the inmate's assaultive behavior." (Emphasis added). The case at hand does not involve payment of medical expenses as a result of an assault on another inmate. This case involves a self-inflicted drug overdose. Therefore, we again cannot say that DOC erred when it failed to apply 37 Pa. Code §93.12(e) in the instant matter.*fn5
[32] Accordingly, the order of DOC is affirmed.
[33] AND NOW, this 4th day of May, 2005, the order of Department of Corrections, dated June 8, 1999, is hereby affirmed.
[34] JOSEPH F. McCLOSKEY, Senior Judge
--------------------------------------------------------------------------------
Opinion Footnotes
--------------------------------------------------------------------------------
[35] *fn1 In Holloway v. Lehman, 671 A.2d 1179 (Pa. Cmwlth. 1996), prisoners who were found guilty of destroying property complained that subsequent administrative assessment of damages against them and the deduction of money from their accounts constituted a deprivation of property without due process of law because they were not first afforded an opportunity to challenge the assessment of damages. This Court agreed and stated that before an assessment of damages could occur, an inmate must be provided with a hearing that comports with administrative agency law.
[36] *fn2 We note that Petitioner first filed a petition for review in this Court's original jurisdiction, docketed as 278 M.D. 2002, relating to the misconduct and assessment that are the subject of this appeal. In that case, Petitioner maintained that DOC did not issue a decision after Petitioner filed exceptions to the proposed report of the hearing examiner and/or that the decision was not sent to him. DOC filed preliminary objections, which were overruled by this Court. DOC then filed an answer with new matter, to which Petitioner responded. Thereafter, DOC filed a motion for judgment on the pleadings, arguing that Petitioner had received sufficient due process and that his action was untimely. By opinion and order dated September 9, 2004, which was reported as Tulio v. Department of Corrections, 858 A.2d 156 (Pa. Cmwlth. 2004), this Court denied DOC's motion for judgment on the pleadings and ordered that Petitioner be allowed to file a petition for review nunc pro tunc to address the merits of the case. It is that petition that is now before us.
[37] *fn3 Petitioner cites Byrd v. Department of Corrections, 743 A.2d 532 (Pa. Cmwlth. 1999), in his brief in support of his argument. However, in Byrd, the inmate was assessed pursuant to 37 Pa. Code §93.12(e), for injuries he caused to another inmate. This Court in Byrd found that the inmate could not be assessed pursuant to 37 Pa. Code §93.12(e) for injuries that he caused another inmate in 1993. The Court reasoned that the medical services at issue were rendered five (5) years before the effective date of the pertinent regulation, 37 Pa. Code §93.12(e), and three (3) years before the effective date of the Prison Medical Services Act (Act), Act of May 16, 1996, P.L. 220, 61 P.S. §§1011-1017. By way of explanation, the Act permitted DOC to collect fees for medical services provided to an inmate after the effective date of the program regulations. See Section 7 of the Act, 61 P.S. §1017. Regulations relating to fees under the Act were published at 37 Pa. Code §93.12.
In the case at hand, Petitioner was assessed pursuant to 37 Pa. Code §93.10, which was adopted February 17, 1984, effective February 18, 1984. In this case, the actions that formed the basis for the misconduct occurred and the medical treatment was received in 1994. Hence, it was appropriate for DOC to assess Petitioner the costs pursuant to 37 Pa. Code §93.10.
[38] *fn4 See Moss v. Department of Corrections, 838 A.2d 32 (Pa. Cmwlth. 2003); Brome v. Department of Corrections, 756 A.2d 87 (Pa. Cmwlth. 2000); Greene v. Department of Corrections, 729 A.2d 652 (Pa. Cmwlth. 1999); Anderson v. Horn, 723 A.2d 254 (Pa. Cmwlth. 1998), petition for allowance of appeal denied, 559 Pa. 669, 739 A.2d 167 (1999).
[39] *fn5 Petitioner fails to set forth a due process argument, and we note that Petitioner received a Holloway hearing, as discussed above.
[1] IN THE COMMONWEALTH COURT OF PENNSYLVANIA
[2] No. 2667 C.D. 2004
[3] 2005.PA
[4] May 4, 2005
[5] ERIC TULIO, PETITIONER
v.
DEPARTMENT OF CORRECTIONS, RESPONDENT
[6] Before: Honorable James Gardner Colins, President Judge, Honorable Rochelle S. Friedman, Judge, Honorable Joseph F. McCLOSKEY, Senior Judge.
[7] The opinion of the court was delivered by: Senior Judge McCLOSKEY
[8] Submitted: April 1, 2005
[9] OPINION NOT REPORTED
[10] MEMORANDUM OPINION
[11] Eric Tulio (Petitioner) petitions for review of an order of Department of Corrections (DOC), dated June 8, 1999, directing Petitioner to reimburse DOC the sum of four thousand one hundred and one dollars and sixty cents ($4,101.60), such reimbursement to be made through an assessment to his inmate account, in connection with a misconduct committed by Petitioner.
[12] On November 22, 1994, Petitioner, an inmate in the custody of DOC, suffered a heroin overdose. As a result, he was transported by ambulance to a hospital where he received medical treatment. On November 28, 1994, Petitioner pleaded guilty to a misconduct relating to the unauthorized use of a controlled substance.
[13] A Holloway hearing was conducted on August 14, 1997, to determine the amount of costs incurred by DOC as a result of Petitioner's misconduct.*fn1 As a result of the hearing, the hearing examiner issued proposed findings of fact and conclusions of law, thereby assessing Petitioner four thousand one hundred and one dollars and sixty cents ($4,101.60), which represented the full cost of the medical treatment paid by DOC in connection with his misconduct. By order dated June 8, 1999, upon consideration of exceptions filed, DOC adopted the proposed report of the hearing examiner and further explained that "an inmate found guilty of misconduct may be required to pay 'for expenses incurred as a result of the misconduct.'" (DOC's Order at p. 1). Petitioner filed a petition for review with this Court.*fn2
[14] On appeal, Petitioner argues that 37 Pa. Code §93.10 does not authorize DOC to sanction an inmate with medical costs that result from an institutional misconduct, nor does it give DOC any authorization to actually make medical deductions from an inmate's account. Petitioner also argues that DOC has violated his Constitutional rights to equal protection and due process. Finally, he argues that DOC acted improperly when it assessed him the full cost of his medical care, as compared to two-thirds of the cost of medical care as required by 37 Pa. Code §93.12(e).
[15] First, we will address Petitioner's argument that 37 Pa. Code §93.10 does not authorize DOC to sanction an inmate with medical costs that result from an institutional misconduct, nor does it give DOC any authorization to actually make medical deductions from an inmate's account. In support of that argument, Petitioner argues that because he was charged with a Class I misconduct, which was not reduced to a Class II misconduct, 37 Pa. Code §93.10 is inapplicable.
[16] The relevant section of the Pennsylvania Code provides, as follows:
[17] (1) Inmates found guilty of Class I misconduct charges may be subjected to one (1) or more of the following sanctions:
[18] (i) Reduction of the classification of the misconduct to a Class II misconduct and any sanction permitted for Class II misconducts.
[19] (ii) A sanction permitted for Class II misconducts, without change in class of misconduct.
[20] (2) Inmates found guilty of Class II misconduct may be subjected to one (1) or more of the following sanctions:
[21] (iii) Payment of the fair value of property lost or destroyed or for expenses incurred as a result of the misconduct.
[22] 37 Pa. Code §93.10.
[23] The plain language of 37 Pa. Code §93.10 allows DOC to assess an inmate for "expenses incurred as a result of the misconduct."*fn3 This Court has consistently upheld DOC's authority to make financial assessments against an inmate's account pursuant to 37 Pa. Code §93.10.*fn4 Therefore, we must reject Petitioner's argument to the contrary.
[24] Next, we will address Petitioner's argument that DOC has violated his Constitutional right to equal protection and due process. Petitioner appears to argue that he has been denied equal protection and due process because DOC made the assessment against him pursuant to 37 Pa. Code §93.10, when it could have made the assessment against him pursuant to 37 Pa. Code §93.12(e), as it did against the prisoner in Byrd. Petitioner's argument lacks merit. In Byrd, this Court concluded that 37 Pa. Code §93.12(e) could not be applied retroactively to misconduct and resulting medical costs that occurred prior to the effective date of 37 Pa. Code §93.12(e). The misconduct and medical costs that were assessed in this case occurred prior to the effective date of 37 Pa. Code §93.12(e). See footnote 3, above. Hence, any argument by Petitioner based upon the proposition that DOC acted improperly by not applying 37 Pa. Code §93.12(e) must fail.
[25] Additionally, in Correll v. Department of Transportation, 726 A.2d 427 (Pa. Cmwlth. 1999), we discussed equal protection violations as follows:
[26] The equal protection clause protects an individual from state action that selects him out for discriminatory treatment by subjecting him to a provision in the law not imposed on others of the same class. In Curtis v. Kline 542 Pa. 249, 666 A.2d 265 (1995), our Supreme Court discussed the principle of equal protection as follows:
[27] The essence of the constitutional principle of equal protection under the law is that like persons in like circumstances will be treated similarly. However, it does not require that all persons under all circumstances enjoy identical protection under the law. The right to equal protection under the law does not absolutely prohibit the Commonwealth from classifying individuals for the purpose of receiving different treatment, and does not require equal treatment of people having different needs.
[28] Id at 255, 666 A.2d at 267-68. (citations omitted).
[29] Correll, 726 A.2d at 430 (citations omitted).
[30] In the case at hand, we cannot say that Petitioner was similarly situated with the prisoner in Byrd. In Byrd, the prisoner was assessed medical costs in connection with an assault on another prisoner. In the case at hand, Petitioner was assessed costs in connection with misconduct relating to a self-inflicted drug overdose.
[31] Finally, we must address Petitioner's argument that DOC acted improperly when it assessed him the full cost of his medical care, as compared to two-thirds of the cost of medical care as required by 37 Pa. Code §93.12(e). First, we must again note that 37 Pa. Code §93.12(e) was not in effect at the time that Petitioner engaged in the misconduct and received medical care. Additionally, 37 Pa. Code §93.12(e) provides that "an inmate is required to pay a fee equivalent to two-thirds of the total cost of medical services provided to another inmate as a result of the inmate's assaultive behavior." (Emphasis added). The case at hand does not involve payment of medical expenses as a result of an assault on another inmate. This case involves a self-inflicted drug overdose. Therefore, we again cannot say that DOC erred when it failed to apply 37 Pa. Code §93.12(e) in the instant matter.*fn5
[32] Accordingly, the order of DOC is affirmed.
[33] AND NOW, this 4th day of May, 2005, the order of Department of Corrections, dated June 8, 1999, is hereby affirmed.
[34] JOSEPH F. McCLOSKEY, Senior Judge
--------------------------------------------------------------------------------
Opinion Footnotes
--------------------------------------------------------------------------------
[35] *fn1 In Holloway v. Lehman, 671 A.2d 1179 (Pa. Cmwlth. 1996), prisoners who were found guilty of destroying property complained that subsequent administrative assessment of damages against them and the deduction of money from their accounts constituted a deprivation of property without due process of law because they were not first afforded an opportunity to challenge the assessment of damages. This Court agreed and stated that before an assessment of damages could occur, an inmate must be provided with a hearing that comports with administrative agency law.
[36] *fn2 We note that Petitioner first filed a petition for review in this Court's original jurisdiction, docketed as 278 M.D. 2002, relating to the misconduct and assessment that are the subject of this appeal. In that case, Petitioner maintained that DOC did not issue a decision after Petitioner filed exceptions to the proposed report of the hearing examiner and/or that the decision was not sent to him. DOC filed preliminary objections, which were overruled by this Court. DOC then filed an answer with new matter, to which Petitioner responded. Thereafter, DOC filed a motion for judgment on the pleadings, arguing that Petitioner had received sufficient due process and that his action was untimely. By opinion and order dated September 9, 2004, which was reported as Tulio v. Department of Corrections, 858 A.2d 156 (Pa. Cmwlth. 2004), this Court denied DOC's motion for judgment on the pleadings and ordered that Petitioner be allowed to file a petition for review nunc pro tunc to address the merits of the case. It is that petition that is now before us.
[37] *fn3 Petitioner cites Byrd v. Department of Corrections, 743 A.2d 532 (Pa. Cmwlth. 1999), in his brief in support of his argument. However, in Byrd, the inmate was assessed pursuant to 37 Pa. Code §93.12(e), for injuries he caused to another inmate. This Court in Byrd found that the inmate could not be assessed pursuant to 37 Pa. Code §93.12(e) for injuries that he caused another inmate in 1993. The Court reasoned that the medical services at issue were rendered five (5) years before the effective date of the pertinent regulation, 37 Pa. Code §93.12(e), and three (3) years before the effective date of the Prison Medical Services Act (Act), Act of May 16, 1996, P.L. 220, 61 P.S. §§1011-1017. By way of explanation, the Act permitted DOC to collect fees for medical services provided to an inmate after the effective date of the program regulations. See Section 7 of the Act, 61 P.S. §1017. Regulations relating to fees under the Act were published at 37 Pa. Code §93.12.
In the case at hand, Petitioner was assessed pursuant to 37 Pa. Code §93.10, which was adopted February 17, 1984, effective February 18, 1984. In this case, the actions that formed the basis for the misconduct occurred and the medical treatment was received in 1994. Hence, it was appropriate for DOC to assess Petitioner the costs pursuant to 37 Pa. Code §93.10.
[38] *fn4 See Moss v. Department of Corrections, 838 A.2d 32 (Pa. Cmwlth. 2003); Brome v. Department of Corrections, 756 A.2d 87 (Pa. Cmwlth. 2000); Greene v. Department of Corrections, 729 A.2d 652 (Pa. Cmwlth. 1999); Anderson v. Horn, 723 A.2d 254 (Pa. Cmwlth. 1998), petition for allowance of appeal denied, 559 Pa. 669, 739 A.2d 167 (1999).
[39] *fn5 Petitioner fails to set forth a due process argument, and we note that Petitioner received a Holloway hearing, as discussed above.