Opinion
3:20-cv-152-SLH-KAP
01-11-2022
RAFIQ SABIR, Petitioner, v. VICKY MOSER, WARDEN, F.C.I. LORETTO, Respondent
REPORT AND RECOMMENDATION
Keith A. Pesto, United States Magistrate Judge
Recommendation
Petitioner, an inmate at F.C.I. Loretto, filed a petition at ECF no. 4 for a writ of habeas corpus pursuant to 28 U.S.C.§ 2241, attacking the forfeiture of 41 days good conduct time (GCT), see 18 U.S.C.§ 3624, ordered as a result of a disciplinary proceeding at MDC Brooklyn in which petitioner was charged with possessing a cellphone on July 23, 2019 in violation of disciplinary Code 108, see 28 C.F.R.§ 541.3, table 1. I recommend that the petition be denied.
Report
A disciplinary hearing officer (DHO) held a hearing on August 7, 2019 and found the petitioner guilty of possessing a cellphone which had been found during a search of the cell petitioner shared with Mohammed Naji (according to petitioner, Naji had also been found guilty the previous week) while petitioner and Naji were out of the cell. Petitioner made attempts to use the three levels of the inmate administrative remedy system, and the respondent argues these were inadequate, but since it is easier to proceed to the merits I do not address whether petitioner failed to exhaust his administrative remedies.
After Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974), a prison disciplinary hearing that results in the loss of GCT or otherwise extends the time spent in custody must provide at least these procedural safeguards: an impartial decision-making body; at least twenty-four hours of advance written notice of the charges; an opportunity to call witnesses and present documentary evidence; assistance from an inmate representative if the charge involves complex issues or if the prisoner is illiterate; and a written decision explaining the evidence relied upon and the reasons for the disciplinary action. See Campbell v. Warden Allenwood USP, 808 Fed.Appx. 70, 72 (3d Cir. 2020).
Petitioner's exhibits are at ECF no. 2; the respondent's are attached to the response at ECF no. 10. Petitioner makes several claims about the procedures used to find him guilty. To start with, petitioner claims that there was a first DHO hearing on July 31, 2019 (petitioner clearly does not mean the Unit Disciplinary Team hearing on July 28, 2019) before the same DHO that found him guilty in August, and at this first hearing the DHO told him the report was delivered late and would need to be suspended or expunged. However, this was not done, and petitioner alleges he was summoned to a second DHO hearing before the same DHO without warning on August 7, 2019. Petitioner says if he had had notice of this hearing he would have called Naji as a defense witness; the respondent notes that the DHO report states that petitioner did not request any witnesses. At this hearing, petitioner claims, the DHO said he already found petitioner guilty.
Petitioner further alleges that the DHO said he found it incredible that petitioner had put his own name on a post-it note attached to the seized cellphone. Petitioner does not clarify whether this alleged statement was made ironically or not by the DHO. The same words “I can't believe you put your name on this” can mean two diametrically opposed things. The respondent in the Response makes a statement that could be interpreted as the respondent suggesting that the DHO found that the post-it note was actually written by petitioner and therefore direct evidence of possession. See ECF no. 10 at 2-3: “As demonstrated by photographs taken... .” The DHO report does not support a claim that the DHO made such a finding. It appears that in reality the post-it note was an informal evidence tag or inventory control label used by the prison staff to identify the seized item. In any case the DHO report does not rely on it as evidence.
Petitioner also claims that the DHO found him guilty based on undisclosed “secret evidence.” In reality, Section III.E of the form used for DHO reports contains a space for recording whether confidential information was used by the DHO, and that box is filled out “N/A,” that is, not applicable to petitioner's case.
The one serious procedural argument petitioner makes is that the Double Jeopardy Clause was violated by the alleged second hearing. I do not have to find whether there were two hearings or only one because the Double Jeopardy Clause does not apply to a prison disciplinary hearing. Petitioner's other due process claims are meritless or frivolous.
The meaningful substantive objection that petitioner makes is that insufficient evidence was presented at the DHO hearing. Disciplinary proceedings that result in loss of GCT or otherwise will affect the length of a sentence will be upheld if there is “some evidence” to support them. Superintendent v. Hill, 472 U.S. 445, 455, (1985); Young v. Kann, 926 F.2d 1396, 1402-03 (3d Cir.1991). Habeas review “does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.” Superintendent v. Hill, 472 U.S. at 455. This is codified in the Bureau of Prisons' regulations at 28 C.F.R.§ 541.8(f)(2017), requiring that “[t]he DHO's decision will be based on at least some facts and, if there is conflicting evidence, on the greater weight of the evidence.” See Bureau of Prisons Program Statement 5270.09, Inmate Discipline Program (available at https://www.bop.gov/policy/progstat/527o 009.pdf, substantially setting out 28 C.F.R.§ 541.1-8).
Petitioner here makes two substantive points: (1) he alleges that Naji was found guilty of possessing the same cell phone at a hearing on July 31, 2019, and points to an affidavit Naji wrote in support of petitioner dated August 21, 2019; (2) petitioner submits the affidavit of fellow inmate Micheal Tyler dated September 13, 2019, in which Tyler avers that Tyler saw that on the afternoon in question someone known by him to be a member “of the blood gang” slide the cellphone under the door to petitioner's cell. Tyler had been at MDC Brooklyn and gave petitioner the affidavit when the two met again at Loretto. Petitioner asserts that he had no chance to obtain Tyler's affidavit earlier.
The DHO made no finding that petitioner possessed the cellphone. According to the DHO report, the DHO found that petitioner committed the violation because and only because the cellphone was found in the common area of the cell shared by petitioner and Naji, in other words because petitioner constructively possessed the cellphone. See United States v. Garth, 188 F.3d 99, 112 (3d Cir.1999)(explaining the concept). Evidence of constructive possession satisfies the “some evidence” standard and is commonly used in prison disciplinary proceedings when contraband is found in a common area. See Cardenas v. Wigen, 921 F.Supp. 286, 289, n.4 (E.D. Pa. 1996). As Judge Robreno observed in Cardenas v. Wigen:
Although there was no direct evidence that any individual inmate was responsible for the forbidden materials, Petitioners and their cellmates were adjudged guilty of the charged offenses based upon Program Statement 5270.7 (“Inmate Discipline and Special Housing Units”), which provides that when contraband is discovered, all inmates residing in the room are mutually responsible if the contraband cannot be identified as belonging to a specific individual. The principle embodied by Program Statement 5270.7, known as “constructive possession,” see White v. Kane 860 F.Supp. 1075 (E.D. Pa. 1994), aff'd, 52 F.3d 319 (3d Cir. 1995), is grounded in notions of collective guilt, i.e., all members of a group are responsible for an offense when the specific offender cannot be identified. See Hamilton v. O'Leary, 976 F.2d 341, 347 (7th Cir. 1992) (Posner, J., dissenting); Ustrak v. Fairman, 781 F.2d 573, 575 (7th Cir.), cert. denied, 479 U.S. 824, 93 L, Ed. 2d 47, 107 S.Ct. 95 (1986).921 F.Supp. at 288-89. I cannot find Program Statement 5270.7 any longer, but the principle appears to have been carried through successive editions of the Inmate Discipline Program at Program Statement 5270.8 to the current Program Statement 5270.9, see id. at 39, Appendix C, Inmate Rights and Responsibilities, Number 4: “It is your responsibility not to waste food,... to keep your area free of contraband, ... .”
In a constructive possession case in a common area the relevant question is how diluted the evidence of common control can be and still meet the Superintendent v. Hill standard. In Cardenas v. Wigen the evidence was insufficient when twelve inmates equally had access to an item of contraband. On the other hand, this Court has found the evidence sufficient where six other inmates could have possessed an item found in a common area, Gordon v. Yost, Case No. 3:04-cv-316-KRG-KAP (W.D. Pa. August 10, 2006), appeal dismissed No. 06-3828 (3d Cir. September 20, 2006), or where an undetermined larger number of inmates had access to a dormitory, but the contraband was found under the cited inmate's bunk. Williams v. Werlinger, 2011 WL 13196476, at *3 (W.D.Pa. May 12, 2011), report and recommendation adopted, 2011 WL 13196477 (W.D. Pa. May 26, 2011), aff'd, 451 Fed.Appx. 127 (3d Cir. 2011). In the instant case the cellphone was found in a two-man cell in an area accessible to petitioner and Naji. As in Williams v Werlinger, that is sufficient to support a finding of constructive possession. The possibility that the contraband was planted by an unknown third party does not keep the evidence from meeting the “some evidence” standard. Forensic examination of the cellphone itself would certainly be required in a criminal or civil trial, but that is not a requirement of a prison disciplinary proceeding. The lack of additional evidence in a prison disciplinary proceeding is not exculpatory evidence.
On that last point, it must be admitted that if Tyler's affidavit had been available at the DHO hearing it might have changed the outcome of the hearing, but Superintendent v. Hill does not contemplate that a habeas court can reweigh the finding by a DHO based on after-discovered evidence, and there is no claim that Bureau of Prisons personnel transferred Tyler to keep his testimony from either the DHO or the petitioner. The petition for a writ of habeas corpus should be denied.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties can within fourteen days file written objections to this Report and Recommendation. In the absence of timely and specific objections, any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir.2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).