United States District Court, D. New Jersey
JOSE ALMANZAR, Petitioner pro se
CAROLINE A. SADLOWSKI, AUSA, IRENE E. DOWDY, AUSA, Attorneys
for Respondent J. Hollingsworth
CHRISTINA SAETTA CLARK Senior Attorney Advisor Federal Bureau
of Prisons Of Counsel
B. SIMANDLE U.S. District Judge.
matter comes before the Court on Roger Jose Almanzar's
petition for writ of habeas corpus challenging a disciplinary
proceeding conducted by the Bureau of Prisons
("BOP"). Petition, Docket Entry 3. Respondent J.
Hollingsworth opposes the petition. Answer, Docket Entry 5.
The petition is being decided on the papers pursuant to Fed.
R. Civ. Pro. 78(b). For the reasons set forth below, the
petition is denied.
a convicted and sentenced federal prisoner, was incarcerated
at USP Canaan, Pennsylvania on January 6, 2015. Petition at
2. According to Incident Report 2668415, a staff member
searched Petitioner's assigned locker, 003 Upper, around
8:05 a.m. Incident Report, Declaration of Tara Moran
("Moran Dec") Exhibit 4 § 11. During the
search, the staff member discovered "a plastic bottle
containing an unknown substance." Id. He tested
the substance using Alco-Sensor III device number
1213955.The device "produced a reading of .061
indicating the presence of alcohol." Id. The
bottle was secured. Petitioner was charged with a violation
of Code 113, possession of intoxicants.Id.
§§ 9-10. Lieutenant Hagemeyer delivered a copy of
the incident report to Petitioner at 9:00 a.m. and read
Petitioner his legal rights. Id. §§ 14,
23. Petitioner stated: "It's not mine."
Id. § 17. The report was ultimately referred to
Discipline Hearing Officer ("DHO") Marc Renda for a
hearing. Id. § 20. Petitioner did not request
that any witnesses or evidence be presented. Id.
§ 25. He refused to sign the Inmate Rights Form. Moran
Dec. Exhibit 5.
hearing was originally scheduled for January 16, 2015 but was
postponed when Petitioner asked for a staff representative.
A. Rivera, Cook Supervisor, agreed to serve as
Petitioner's representative and acknowledged his
obligations. The hearing was rescheduled for January 21,
2015. DHO Report, Moran Dec. Exhibit 8 § I.A. Petitioner
appeared at the hearing with Mr. Rivera and denied possessing
alcohol. Petitioner testified "that his fingerprints
would not be present on the plastic bottle which contained
tomato sauce, which he was going to cook with. He further
admitted that he had obtained the tomato sauce from the
'warehouse.' He stated that he planned to cook with
said tomato sauce." Brief in Support at 3. He also
stated "If you get finger prints mine won't be on
it. You can breathalyze me. If you check the cameras maybe
you can see who put it there. I had one bottle outside my
locker which had tomato sauce in it." DHO Report §
III.B. Petitioner indicated he did not know how the bottle
got in his locker, who would have put it there, or why
someone would have done so. Id.
considered Petitioner's testimony, the Incident Report,
and the photograph of the bottle and Alco-Sensor reading and
found that the greater weight of the evidence indicated
Petitioner had committed the offense of possessing an
intoxicant. Id. §§ III.D, IV. The DHO
determined Petitioner's testimony "fail[ed] to
exculpate him of the charge." Id. § V.
Although Petitioner did not ask prison officials to test the
bottle for fingerprints prior to the hearing, the DHO found
that fingerprinting the bottle was neither required nor
necessary because Petitioner was responsible for the contents
of his assigned area even if his fingerprints were not on the
bottle. Id. The DHO further concluded a breathalyzer
test "would be equally nugatory and unavailing"
because the charge did not depend on Petitioner imbibing the
alcohol but "whether a substance testing positive for
intoxicants was [discovered] in [Petitioner's] assigned
living area." Id. The DHO noted that
Petitioner's admission that he took a bottle of tomato
sauce from the warehouse to cook with was an admission of
stealing and/or possession of stolen property. Id.
The DHO also rejected Petitioner's request to review the
cameras in the living area because under the doctrine of
constructive possession, "even if it was demonstrated
another inmate placed the bottle in [Petitioner's] locker
it would be immaterial. [Petitioner] also has a
responsibility to keep his living area free of
sustained the charges against Petitioner and sanctioned him
by disallowing 40 days of good credit time in order to
"demonstrate the seriousness of [Petitioner's]
actions" and to deter Petitioner and other inmates in
the future. Id. § VII. Petitioner purportedly
received a copy of the DHO Report on January 22, 2015.
argues he was denied due process of law in the course of his
disciplinary hearing because the evidence was insufficient to
support the charges.
Exhaustion of ...