United States District Court, D. New Jersey
Berroa, Petitioner Pro se.
Elizabeth Ann Pascal, Esq. John Andrew Ruymann, Esq. Office
of the U.S. Attorney District Of New Jersey Counsel for
L. HILLMAN, U.S.D.J.
Harry Berroa (“Petitioner”), a prisoner presently
incarcerated at the Federal Correctional Institution
(“FCI”) at Fort Dix in Fort Dix, New Jersey,
filed this Petition for Writ of Habeas Corpus Under 28 U.S.C.
§ 2241, challenging an institutional disciplinary
decision that resulted in, inter alia, a loss of good time
credits. ECF Nos. 1 (petition), 5 (amended petition).
Respondent submitted an Answer, ECF No. 9, and Petitioner
submitted his Reply thereafter, ECF No. 10. The Petition is
now ripe for disposition. For the reasons that follow, the
Petition will be denied.
December 18, 2008, Petitioner was sentenced in the U.S.
District Court for the Eastern District of Pennsylvania to
sixty months' imprisonment with a three-year term of
supervised release for interference with interstate commerce
by robbery in violation of 18 U.S.C. § 1951, and a
consecutive 120 months' imprisonment with a five-year
term of supervised release for using and carrying a firearm,
in violation of 18 U.S.C. § 924(c). ECF No. 9 at 4-5.
28, 2015, while Petitioner was incarcerated at the Federal
Correctional Institution at Fort Dix in Fort Dix, New Jersey,
Incident Report No. 2720398 was issued charging him with
Possession of a Hazardous Tool, a violation of Code 108. See
ECF No. 9-2 at 13-14. The incident report provides as
While conducting routine rounds with Lieutenant Lewars in
Unit 5711, we entered bathroom 346 to conduct a shakedown.
All visible inmates exited. Lieutenant Lewars demanded any
inmate still present to make himself know [sic] with no
response. Upon further inspection we discovered an inmate in
the last stall facing the window. The inmate exited the stall
and submitted to a pat search. I entered the stall and
discovered (1) White Nokia Smartphone with a battery pack
behind the toilet. Inmate Berroa was the only inmate in the
stall at the time, leaving him in constructive possession of
Id. at 13.
28, 2015, at approximately 8:41 p.m., the incident report was
delivered to Petitioner. Id. Petitioner was advised
of his right to remain silent during the disciplinary process
but stated to the investigating staff member that, “No
one was in the bathroom when I came out, I was not in the
last stall, and the phone is not mine.” Id. at
13-14. Per the incident report, the investigating staff
member referred the incident report to the Unit Discipline
Committee (“UDC”) for a hearing due to the
seriousness of the infraction. Id. at 13.
1, 2015, the initial hearing was held before the UDC.
Id. at 13. At the hearing, Petitioner gave the
following statement, “No one was in the bathroom when I
came out. I was not in the last stall. The phone is not
mine.” Id. at 14. The initial hearing notes
provide that “Inmate was afforded the opportunity to
call witnesses on his behalf and refused.” Id.
The UDC concluded that Petitioner had been appropriately
charged with a violation of Code 108 and referred the case to
the Discipline Hearing Officer (“DHO”).
Id. If Petitioner were found guilty, the UDC
recommended a loss of good conduct time and a loss of all
privileges. Id. at 13. Petitioner was advised that
day of his rights before the DHO. See ECF No. 9-2 at
16. Petitioner did not request a staff representative or
witnesses in the proceedings before the DHO. See id.
initial DHO hearing was held on July 9, 2015. The DHO
remanded the incident report for correction of spelling and
date errors. ECF No. 9-2 at 20.
revised incident report was written on July 11, 2015 and
issued to Petitioner on July 12, 2015. ECF No. 9-2 at 22. A
comparison of the original and revised incident reports
demonstrates that Section 11 of the incident report, the
description of incident, was not revised to include
additional facts. Id. The only edits made were to
fix typographical errors. Id.
second UDC hearing was conducted on July 17, 2015 based on
the revised incident report. Id. at 22. At that
hearing, Petitioner stated, “None of that happened. The
DHO told me he expunged this shot at the last hearing. None
of that happened.” Id. Due to the severity of
the incident report, the UDC referred the case to the DHO.
Id. If Petitioner were found guilty, the UDC again
recommended a loss of good conduct time credits and a loss of
all privileges. Id. Petitioner was again advised