United States District Court, D. New Jersey
September 13, 2005.
YOUANNY HERNANDEZ-SEVERIO, Petitioner,
C.J. DeROSA, Respondent.
The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge
Petitioner Youanny Hernandez-Severio, a prisoner confined at
the Federal Correctional Institution at Fort Dix, New Jersey, has
submitted a petition for writ of habeas corpus, pursuant to
28 U.S.C. § 2241,*fn1 challenging the results of a prison
disciplinary proceeding. The sole respondent is Warden C.J. DeRosa.
For the reasons set forth below, the Petition will be denied.
On March 16, 2002, while Petitioner was incarcerated pursuant
to a criminal conviction and sentence imposed in the U.S.
District Court for the District of Puerto Rico, a correctional
officer conducted a routine search of Petitioner's locker and
found seven capsules printed with the word "Hydroxycut" in a jar
labeled for Vitamin C. An incident report was issued charging
Petitioner with a violation of Offense Code 113, Possession of
any Narcotic, Marijuana, Drugs, or Related Paraphernalia Not
Prescribed for the Individual by the Medical Staff. The incident
report was delivered to Petitioner on March 17, 2002.
The Unit Discipline Committee ("UDC") conducted a hearing on
March 21, 2002. The UDC referred the matter to the Discipline
Hearing Officer ("DHO"), with a recommendation for all sanctions
applicable for commission of Offense Code 113, if Petitioner were
found to have committed the prohibited act. (Answer, Ex. 1c,
Incident Report No. 974181.)
The DHO hearing took place on March 28, 2002. Petitioner
admitted that the pills were his. He stated that they were not
narcotics, but were for weight reduction. Petitioner's medical file confirmed that the pills had not been prescribed to
Petitioner. On April 22, 2002, the DHO issued his report finding
that Petitioner had committed Offense Code 113. The DHO imposed
sanctions including loss of 94 days good conduct time and loss of
Petitioner pursued the Bureau of Prisons' Administrative Remedy
Program, 28 C.F.R. § 542.10 et seq., by filing an appeal with
the Regional Director. Petitioner contended that:
The Code 113 should be a code 305 or 302 and not the
113. The medication wasn't narcotic and no where in
the record was medical staff contacted to verify what
grade of medication the alleged narcotics was.
(Petitioner's Ex. 4.) In denying Petitioner's appeal, the
Regional Director stated:
You contend the medication was not proven to be a
narcotic. You admitted to the DHO that the pills
belonged to you. You stated they were not narcotics,
but were for weight reduction. The prohibited act is
committed when an inmate possesses any narcotic,
marijuana or drug not prescribed by medical staff for
his individual use. The pills are considered a drug
and do not have to be a narcotic drug. Even if, as
you claim, another inmate did give you the pills, you
were not authorized to possess them as they were not
prescribed for you. Based on the evidence presented,
the DHO reasonably determined you committed the
prohibited act of possession of any drug not
prescribed by medical staff.
(Petitioner's Ex. 5.)
Petitioner then appealed to the BOP's Central Office,
"Staff incorrectly wrote the wrong code for the
Prohibited Act Code 113. . . . HYDROXYCUT is a supplement. . . . The Incident Report should have
been 302 Misuse of unauthorized medication, or 305
Possession of anything not authorized for retention
or receipt by the inmate, and not issued to him
through the regular channels.
(Petitioner's Ex. 6.) The Administrator, National Inmate Appeals,
denied the appeal, stating, "As to the substance confiscated, the
substance is considered a drug, contrary to your assertion."
(Petitioner's Ex. 7.)
On May 21, 2003, this Court received this Petition, in which
Petitioner admits possession of the seven Hydroxycut capsules.
Petitioner asserts, however, that he should have been charged
with an Offense Code 305, which carries lesser sanctions than the
Offense Code 113, because Hydroxycut is a supplement rather than
a drug. He asserts that laboratory testing should have been
performed to determine the specific nature of the substance
On August 20, 2003, while the Petition was pending in this
Court, the BOP's National Inmate Discipline Administrator
forwarded an electronic mail message to the DHOs:
The purpose of this e-mail is to reiterate a decision
regarding inmate's possession of substances such as
Creatine, Nortesten, and Hydroxycut.
In the past, inmates were written incident reports
for Possession of Narcotics or Drugs when these or
similar substances were found in their possession.
However, the most appropriate prohibited act code
would be Possession of Anything Not Authorized as
these substances are considered as dietary
supplements by the Food and Drug Administration and
are not regulated as a drug. (Answer, Hebbon Declaration ¶ 5 and Ex. 1e.)
On August 26, 2003, the DHO issued an amended DHO Report
respecting Petitioner's Incident Report, amending the Findings
and Sanctions portions of the Report to find that Petitioner had
committed the prohibited acts for Offense Code 305, Possession of
Anything Unauthorized. He imposed sanctions including
disallowance of 13 days good conduct time and forfeiture of 13
days non-vested good conduct time, for a total loss of 26 days
good conduct time. Petitioner was advised of the amended DHO
Report and of his right to appeal from that amended DHO Report
under the Administrative Remedy procedure.
As a result of these intervening events, Respondents suggest
that this Petition is moot and that this Court should reject any
attempt to challenge the amended sanctions.
Petitioner replies that the Petition is not moot, that he
should not be required to start anew appealing the DHO Report
that was amended as a result of the administrative appeals, and
that the charges should have been dismissed, rather than amended,
as a result of the change in policy reflected in the e-mail from
the BOP's National Inmate Discipline Administrator. (Traverse.)
Because Petitioner is not entitled to relief under his revised
theory of due process deprivation, this Court need not determine
whether the case is moot or whether Petitioner should be required
to pursue another round of administrative appeals. II. LEGAL STANDARD
"Habeas corpus petitions must meet heightened pleading
requirements." McFarland v. Scott, 512 U.S. 849, 856 (1994). A
petition must "specify all the grounds for relief" and must set
forth "facts supporting each of the grounds thus specified."
See Rule 2(c) of the Rules Governing § 2254 Cases in the U.S.
District Courts (amended Dec. 1, 2004) ("Habeas Rules"), made
applicable to § 2241 petitions through Rule 1(b) of the Habeas
Nevertheless, a pro se pleading is held to less stringent
standards than more formal pleadings drafted by lawyers. Estelle
v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner,
404 U.S. 519, 520 (1972). A pro se habeas petition and any supporting
submissions must be construed liberally and with a measure of
tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir.
1998); Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d Cir.
1989); United States v. Brierley, 414 F.2d 552, 555 (3d Cir.
1969), cert. denied, 399 U.S. 912 (1970).
A habeas corpus petition is the proper mechanism for a prisoner
to challenge the "fact or duration" of his confinement, Preiser
v. Rodriguez, 411 U.S. 475, 498-99 (1973), including challenges
to prison disciplinary proceedings that affect the length of confinement, such as deprivation of good time credits,
Muhammad v. Close, 540 U.S. 749 (2004) and Edwards v.
Balisok, 520 U.S. 641 (1997). See also Wilkinson v. Dotson,
125 S.Ct. 1242 (2005). Habeas corpus is an appropriate mechanism,
also, for a federal prisoner to challenge the execution of his
sentence. See Coady v. Vaughn, 251 F.3d 480, 485-86 (3d Cir.
2001); Barden v. Keohane, 921 F.2d 476, 478-79 (3d Cir. 1990).
In addition, where a prisoner seeks a "quantum change" in the
level of custody, for example, where a prisoner claims to be
entitled to probation or bond or parole, habeas is the
appropriate form of action. See, e.g., Graham v. Broglin,
922 F.2d 379 (7th Cir. 1991) and cases cited therein.
To the extent a prisoner challenges sanctions affecting his
conditions of confinement, however, such claims must be raised by
way of a civil rights action. See Leamer v. Fauver,
288 F.3d 532 (3d Cir. 2002). Where a favorable outcome necessarily would
imply the invalidity of the length of a prisoner's sentence, such
claims do not accrue until the sanction has been invalidated
through reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court's
issuance of a writ of habeas corpus. See Heck v. Humphrey,
512 U.S. 477 (1994). Thus, this Court can award no relief related
to those sanctions that do not affect the length of Petitioner's sentence.
B. Petitioner's Claims
Convicted and sentenced prisoners retain the protections of the
Due Process Clause of the Fifth and Fourteenth Amendments that
the government may not deprive them of life, liberty, or property
without due process of law. See Wolff v. McDonnell,
418 U.S. 539, 556 (1974); Haines v. Kerner, 404 U.S. 519 (1972);
Wilwording v. Swenson, 404 U.S. 249 (1971). Such protections
are, however, "subject to restrictions imposed by the nature of
the regime to which [prisoners] have been lawfully committed. . . .
In sum, there must be mutual accommodation between
institutional needs and objectives and the provisions of the
Constitution that are of general application." Wolff,
418 U.S. at 556.
A liberty interest protected by the Due Process Clause may
arise from either of two sources: the Due Process Clause itself
or from state or federal law. See Hewitt v. Helms,
459 U.S. 460, 466 (1983); Asquith v. Department of Corrections,
186 F.3d 407, 409 (3d Cir. 1999).
Where the government has created a right to good time credits,
and has recognized that a prisoner's misconduct authorizes
deprivation of the right to good time credits as a sanction,*fn2 "the prisoner's interest has real substance
and is sufficiently embraced within Fourteenth Amendment
`liberty' to entitle him to those minimum procedures appropriate
under the circumstances and required by the Due Process Clause to
insure that the state-created right is not arbitrarily
abrogated." Wolff, 418 U.S. at 557.
Thus, a prisoner is entitled to an impartial disciplinary
tribunal, Wolff, 418 U.S. at 570-71, excluding "only those
[prison] officials who have a direct personal or otherwise
substantial involvement . . . in the circumstances underlying the
charge from sitting on the disciplinary body," Meyers v.
Alldredge, 492 F.2d 296, 306 (3d Cir. 1974).
To comply with the requirements of the Due Process Clause,
prison officials also must provide a prisoner facing loss of good
time credits with: (1) a written notice of the charges at least
24 hours prior to any hearing, (2) an opportunity to call
witnesses and presented documentary evidence in his defense when
permitting him to do so will not be unduly hazardous to institutional safety or correctional goals,*fn3 and (3) a
written statement by the factfinders as to the evidence relied on
and the reasons for the disciplinary action. Wolff,
418 U.S. at 564-66. Prisoners do not have a due process right of
confrontation and cross-examination, or a right to counsel, in
prison disciplinary proceedings. Id. at 569-70. Where an
illiterate inmate is involved, or the complexity of the issue
makes it unlikely that the inmate involved will be able to
collect and present the evidence necessary for an adequate
comprehension of the case, the prisoner should be permitted to
seek the aid of a fellow inmate or appropriate staff member.
Id. at 570.
Finally, due process requires that findings of a prison
disciplinary official, that result in the loss of good time
credits, must be supported by "some evidence" in the record.
Superintendent, Massachusetts Correctional Institution at
Wolpole v. Hill, 472 U.S. 445, 454-56 (1985).*fn4
Here, following a change in circumstances during the pendency
of this action, Petitioner argues that he was deprived of due
process as a result of the amended DHO Report, contending that
the charges should have been dismissed rather than amended. The
Court construes Petitioner's challenge to the amendment of the
DHO Report during the administrative appeal process as a claim
that he did not receive the required advance notice of the
charges against him.
Petitioner does not dispute any of the operative facts
regarding his possession of the Hydroxycut capsules and he does
not explain how a more precise charge of Offense Code 305 in the
initial Incident Report would have affected his defense against
the amended charge. To the contrary, at the DHO hearing and in
the administrative appeals, Petitioner insisted that Offense Code
305 should have been charged and admitted that he had committed a
violation of Offense Code 305. Thus, it does not appear that
Petitioner suffered any actual lack of notice.
Moreover, procedural errors in the prison discipline process
are subject to "harmless error" analysis. See Elkins v.
Fauver, 969 F.2d 48, 53 (3d Cir.), cert. denied, 506 U.S. 977 (1992);
Hollawell v. Lehman, 1995 WL 447470 (E.D. Pa. July 27, 1995),
aff'd, 96 F.3d 1433 (3d Cir. 1996). See also Powell v.
Coughlin, 953 F.2d 744 (2d Cir. 1991) (quoted with approval in
Elkins). To the extent Petitioner did not receive actual notice
that the charge against him was Offense Code 305, the error was
harmless. Petitioner does not dispute the operative facts.
Indeed, he never disputed that those facts constituted a
prohibited act. Nor does Petitioner dispute that the amended
sanctions fall within the permissible range. Petitioner is not
entitled to relief on this due process claim.
For the reasons set forth above, the Petition will be denied.
An appropriate order follows.
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