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RINI v. NASH

August 22, 2005.

JOSEPH RINI, Petitioner,
v.
JOHN NASH, Warden, Respondent.



The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge

OPINION

On April 26, 2005, Petitioner, confined at the Federal Correctional Institution, Fort Dix, New Jersey, submitted for filing to the Clerk of this Court a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. On July 11, 2005, Respondent filed an Answer to the Petition. The Court has reviewed all documents submitted and for the following reasons will deny the instant Petition.

  BACKGROUND

  On May 10, 2002, Petitioner was convicted in the United States District Court, Southern District of New York, of using a telephone in connection with a drug felony, in violation of 21 U.S.C. § 843(b). He was sentenced to 48 months imprisonment with one year of supervised release. On January 5, 2004, Petitioner began participation in the Bureau of Prisons' ("BOP") Residential Drug Abuse Program ("RDAP"). The RDAP was instituted in response to 18 U.S.C. § 3621, which required the BOP to provide inmates with treatment for substance abuse. As an incentive to participate in the RDAP, the period of custody for a prisoner convicted of a nonviolent offense could be reduced for successful completion of the program. See 18 U.S.C. § 3621(e)(2)(B).

  On October 13, 2004, Petitioner was transferred to a Community Corrections Center ("CCC") to complete the program's requirements. One condition of continuing in the program was that the participants not use drugs or alcohol. Participants could be expelled from the program upon a finding by a Disciplinary Hearing Officer ("DHO") that they have used or possessed alcohol or drugs.

  On November 9, 2004, Petitioner was given a random drug test. On November 17, 2004, Petitioner's drug test came back positive for Butalbital. CCC staff issued an incident report charging Petitioner with a violation for use of drugs. However, because CCC staff assessed Petitioner as a flight risk, he was not served with the incident report until November 19, 2004, two days later, when United States Marshals were available. That same day, an investigation into the matter was conducted. Petitioner stated that he "took advil for his headache," and that he had not written it down on his "urine sheet." The investigator determined that the prohibited act had been committed, and referred the matter to the Center Discipline Committee ("CDC") for a hearing.

  Petitioner was served with a copy of the incident report, and was advised of his rights. Petitioner waived his right to have a written copy of the charges for 24 hours prior to appearing before the CDC. He also waived his right to staff representation and to call witnesses at the CDC hearing. This is evidenced by the record provided by Respondent.

  The CDC hearing was conducted that day, merely 20 minutes after Petitioner was served with the incident report. Petitioner made a statement that he took medication from his girlfriend's mother for headaches. Based on Petitioner's statements and the urinalysis printout and chain of custody, the CDC found Petitioner guilty of the prohibited act. The CDC recommended loss of good conduct time and transfer to a secure facility. Petitioner was advised of these findings and his right to appeal.

  On November 29, 2004, Petitioner was informed by letter that he had been removed from the RDAP, and would not receive the reduction in his period of custody, as he did not successfully complete all components of the program. On December 17, 2004, the DHO certified that the CDC properly conducted the hearing and satisfied the requirements of due process. The DHO sanctioned Petitioner with disallowance of 40 days good conduct time, and 40 days non-vested good conduct time, as well as transfer to a secure facility. Petitioner appealed the findings and sanction to the Regional Director of the BOP, who affirmed the DHO.

  Petitioner filed the instant Petition for a Writ of Habeas Corpus. He argues that he was denied due process because he was not present for the DHO hearing, could not present evidence on his own behalf, and could not seek the aid of an inmate or staff member before the DHO. He also argues that Respondent granted him 11 months off of his incarceration time due to participation in RDAP, and that to now deny him the 11 months is a violation of a protected liberty interest.

  Respondent argues that Petitioner has not exhausted his administrative remedies, and that all procedural safeguards were complied with in accordance with due process.

  DISCUSSION

  A. Standard of Review

  The petitioner seeks a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241(c)(3). That section states that the writ will not be extended to a prisoner unless "he is in custody in violation of the Constitution or laws ...


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