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Son v. Ortiz

United States District Court, D. New Jersey

May 11, 2018

LINCOLN SON, Petitioner,
DAVID ORTIZ, Respondent.




         Petitioner, Lincoln Son, is a federal prisoner currently incarcerated at F.C.I. Fort Dix in Fort Dix, New Jersey. He is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner claims that there was no evidence to support a prison disciplinary finding against him that resulted in his losing forty-one days of good conduct time. For the following reasons, the habeas petition will be denied.


         According to a prison discipline incident report, on August 26, 2013, an officer conducting a shakedown of cell 128 in Unit A-B found a false bottom in the ladder leading to the upper bunk. (Dkt. No. 1-1 at 1.) The ladder was in a common area of the cell. (Id.) The ladder bottom contained a piece of metal approximately nine inches long and sharpened to a point. (Id.) The officer noted that Petitioner had been moved on August 23, 2013, to another cell but that Petitioner claimed that he did not know about the move and was inadvertently still occupying the living space of cell 128.

         The incident report was referred to the Discipline Hearing Officer ("DHO"). Petitioner was advised of his rights in preparation for the DHO hearing. (Dkt. No. 4-3 at 16.) Petitioner requested a staff representative and declined the right to call witnesses. (Id. at 18.) On September 3, 2013, a DHO hearing was held. In addition to the incident report, the DHO considered a photograph of the homemade weapon. (Id. at 22.)

         The DHO found that petitioner had violated Code 104, possession of a weapon. In his report, the DHO stated:

The DHO considered your statement that you have been in the cell for 6 months and you had no idea there was a weapon in the cell. You had already been approved to move but you failed to move in time. While this may be true, it was still considered that the homemade weapon was found in a common area in the cell, which was easily accessible to you or your cell partners. It was in the ladder accessible without the use of tools where you or your cell partners could get it in a moment's notice. However, your inmate handbook states on page 6 under the Searches heading; You will be held responsible for all contents of your locker, room, and area. If any unauthorized items, or "CONTRABAND", are found during any of the searches, they will be confiscated and you will be subject to disciplinary action. The DHO found there was no credible information which would make the DHO believes that the weapon belonged to someone other than you. The DHO found the greater weight of the evidence in the reporting officer's eyewitness account of the incident and supporting documents that the weapon belonged to you. Accordingly, the DHO found that you committed the prohibited act as stated above.

(Dkt. No. 4-3 at 23.) Petitioner received a sanction of the disallowance of forty-one days good conduct time among other sanctions.

         Petitioner appealed the DHO's decision to the Regional Director. In his appeal, Petitioner asserted that another inmate claimed ownership of the weapon. The Regional Director denied the appeal, addressing Petitioner's argument as follows:

You contend your cell-mate claimed the contraband. The OHO outlined in detail the evidence utilized to find you committed the prohibited act and the reasons, he did not believe your defense. Further, in accordance with Program Statement 5270.09, Inmate Discipline Program, Page 39, "It is your responsibility to keep your area free of contraband." In this case, the contraband was found in a common area of your cell and you are responsible for all items found in these areas. We concur with the DHO's interpretation of the incident,

(Dkt. No. 4-3 at 8.) The BOP's Central Office then denied petitioner's appeal from the Regional Director's decision. (See Id. at 11.)

         Petitioner subsequently filed this federal habeas petition. He argues that the DHO's conclusion that the weapon was found in his assigned cell was incorrect and that there was "absolutely no evidence" that Petitioner possessed the weapon. (Dkt. No. 1-2 at 4.) Petitioner argues that he was not assigned to cell 128 and that his cellmate claimed ownership of the weapon. He further argues that his possession of the weapon is "inconsistent with the facts surrounding the finding of the weapon and .. . also inconsistent with established case law for this type of alleged 'possession.'" (Id.)

         Respondent filed an answer in opposition to the habeas petition. Though Petitioner requested and was granted two extensions of time in which to file a reply to Respondent's ...

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