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Berroa v. Hollingsworth

United States District Court, D. New Jersey

April 2, 2019

HARRY BERROA, Petitioner,
v.
JORDAN HOLLINGSWORTH, Respondent.

          Harry Berroa, Petitioner Pro se.

          Elizabeth Ann Pascal, Esq. John Andrew Ruymann, Esq. Office of the U.S. Attorney District Of New Jersey Counsel for Respondent.

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         Petitioner 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.

         I. BACKGROUND

         On 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.

         On May 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 follows:

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 the smartphone.

Id. at 13.

         On May 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.

         On June 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. at 18.

         An 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.

         A 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.

         A 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 that ...


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