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Fernandez v. Hollingsworth

United States District Court, D. New Jersey

May 14, 2018





         Petitioner 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 insufficient evidence to support a disciplinary finding against him that resulted in the removal of a portion of his good conduct time credits. For the following reasons, the habeas petition will be denied.


         According to the incident report, on July 8, 2014, a cell phone was found in unit 5802 in room 215. An SIS investigation discovered a certain phone number on the cell phone. The number was registered to an individual who was listed as the mother of Petitioner's children. The incident report charged Petitioner with possession, manufacture, or introduction of a hazardous tool (aiding) (Code 108A) and use of a telephone for abuses other than illegal activity (Code 397).

         On July 15, 2014, the Disciplinary Committee referred the charges against Petitioner to a Disciplinary Hearing Officer (“DHO”). Petitioner was advised of his rights in preparation for the DHO hearing and declined to have a staff representative or to call witnesses. Petitioner stated that he “gave his phone number to another inmate but did not expect the inmate to call his number until they were released.” (Dkt. No. 7-1 at p. 19.)

         On August 1, 2014, a DHO hearing was held. Petitioner did not request a staff representative and did not request witnesses. At the hearing, Petitioner stated, “my girlfriend has her number on a flyer and a business card that she gives out. She is a banker and we were trying to help out inmates when they get released. I did not make any calls though.” (Dkt. No. 7-1 at p. 26.)

         The DHO considered Petitioner's statement, as well as the incident report, photos of the cell phone, including one showing the phone number in question, and a TRUVIEW Inmate Detail Report for Petitioner. Ultimately, the DHO found that Petitioner committed the prohibited act of Code 108A by aiding in the possession of a hazardous tool. The DHO stated:

The institution submitted into evidence that a cell phone was found in the housing unit where you have resided since 2013. The cell phone number found in the memory of the cell phone is tied only to you through the TRUVIEW system in Fort Dix. In the recent past inmates with contraband cell phones have placed and received calls for other inmate's in return for favors, commissary, and monetary gain. By having calls made or received for you show that you have received a benefit from the contraband cell phone, thus aiding in the use of the cell phone.

(Dkt. No. 7-1 at p. 27.) Petitioner received a sanction of the disallowance of forty days of good conduct time as well as additional restrictions and sanctions.

         Petitioner appealed to the Regional Office but his appeal was rejected because he did not sign the form. (Dkt. No. 1 at 4.) Petitioner was granted ten days to resubmit the appeal, including mailing time. (Dkt. No. 1 at 4; Dkt. No. 1-1 at p. 7.) Petitioner attempted to resubmit his appeal, but was unable to do so within the ten-day time limit. The appeal therefore was rejected as untimely. (Dkt. No. 1-1 at p. 12.) Petitioner made further attempts to resubmit his appeal, which were also rejected. Petitioner then appealed to the Central Office, which concurred with the Regional Office and rejected the appeal. (Id. at 22.) The Central Office advised Petitioner to submit a staff memo on Bureau of Prisons letterhead stating the reason that Petitioner's untimely filing was not his fault. (Id.) Petitioner did not submit such a memo. Petitioner subsequently made additional attempts to appeal the DHO's decision, including submitting an affidavit from another inmate who stated that he made the call to the number found on the cell phone rather than Petitioner. (See Dkt. No. 1-1 at pp. 25-33.) These attempts were rejected as untimely.

         Petitioner then filed a petition for a writ of habeas corpus pursuant to § 2241 in this Court challenging the administrative appeal procedure employed in his disciplinary proceeding. This Court summarily dismissed the petition for failing to state claim that would entitle Petitioner to habeas relief. See Fernandez v. Hollingsworth, Civ. No. 15-3492, 2015 WL 4578433 (D.N.J. Jul. 29, 2015). Petitioner filed the present petition on September 25, 2015, challenging the findings of the DHO. He claims that the evidence was insufficient to support the DHO's decision because, contrary to the DHO's finding, he did not live on the unit in which the phone was found and another inmate later admitted under penalty of perjury that he had made the call in question. Petitioner further argues that the DHO's statement that Petitioner had calls made or received by others for his own benefit is not supported by evidence and is purely speculation.

         Respondent filed an answer in opposition to the petition. Petitioner then filed a reply in support of his petition for habeas relief.

         III. ...

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