United States District Court, D. New Jersey
B. KUGLER, UNITED STATES DISTRICT JUDGE
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.
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
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.)
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.)
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.
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.
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.
filed an answer in opposition to the petition. Petitioner
then filed a reply in support of his petition for habeas