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