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Lopez-Negron v. Ortiz

United States District Court, D. New Jersey

September 27, 2019

FRANCISCO E. LOPEZ-NEGRON, Petitioner,
v.
DAVID ORTIZ, Respondent.

          OPINION

          ROBERT B. KUGLER, UNITED STATES DISTRICT JUDGE.

         Petitioner, Francisco E. Lopez-Negron, is a federal prisoner currently incarcerated at FCI 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. Respondent filed an Answer opposing relief (ECF No. 6), and Petitioner did not file a reply. For the reasons set forth below, the Court will dismiss the Petition.

         I. BACKGROUND

         This case arises from a disciplinary hearing during Petitioner's incarceration at FCI Fort Dix. On February 6, 2016, officials observed Petitioner place what appeared to be a cellphone in a jacket hanging on Petitioner's bunk. After conducting a search of the jacket, officials recovered a cell phone and issued an incident report charging Petitioner with possession of a hazardous tool, in violation of Bureau of Prisons Code 108, [1] delivered the report to Petitioner, and advised him of his rights.

         On that same day, the investigating official referred the incident report to the Unit Discipline Committee (“UDC”). On February 11, 2016, after an initial hearing before the UDC, the UDC referred the incident report to a Discipline Hearing Officer (“DHO”), and again advised Petitioner of his rights.

         On February 26, 2016, the DHO held a hearing and again advised Petitioner of his rights. Petitioner confirmed that he did not want a staff representative and did not wish to call any witnesses. At the hearing, Petitioner stated that the jacket and cell phone did not belong to him.

         The DHO considered Petitioner's statements in reaching a decision, as well as: the incident report; the chain of custody log for the cell phone; a memorandum from a second officer who observed Petitioner place the phone in the jacket; and a photo of the cellphone.

         After considering all of the evidence, the DHO concluded that Petitioner committed the act of possessing a dangerous tool, in violation of Code 108. The DHO then issued the following sanctions: (1) revocation of forty days of good conduct time; (2) fifteen days of disciplinary segregation; (3) loss of email privileges for twelve months; and (4) loss of phone privileges for twelve months.

         The parties dispute what transpired next. According to Petitioner, he mailed his appeal to the regional director[2] of the Bureau of Prisons (“BOP”), on May 13, 2016, within the twenty-day time limit to appeal. Petitioner did not receive a response and assumed that the regional director denied his appeal. Thereafter, Petitioner filed an appeal of that assumed denial, to the BOP central office, who rejected his appeal for, among other things, failing to first appeal to the regional director. Petitioner appears to have filed a second appeal at the central office level and received a similar denial.

         On November 7, 2016, Petitioner filed another appeal to the regional director, who denied the filing as untimely. Petitioner contends that the post office or the regional director's office itself, must have lost his original and timely May 13, 2016, appeal.

         Petitioner then filed the instant Petition, requesting that the Court issue an order directing the regional director to decide Petitioner's administrative appeal on the merits. Respondent filed an Answer (ECF No. 6), and Petitioner did not file a reply.

         II. STANDARD OF REVIEW

         Courts hold pro se pleadings to less stringent standards than more formal pleadings drafted by lawyers. See Estelle v. Gamble, 429 U.S. 97, 106 (1976). Courts must construe pro se habeas petitions and any supporting submissions liberally and with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998).

         If the Court does not dismiss the petition at the screening stage, the Court “must review the answer, any transcripts and records . . . to determine whether” the matter warrants an evidentiary hearing. Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District Courts (made applicable to proceedings under § 2241 by Rule 1(b)). “Whether to order a hearing is within the sound discretion of the trial court, ” and depends on whether the hearing “would have the potential to advance the petitioner's claim.” Campbell v. Vaughn,209 F.3d 280, 287 (3d Cir. 2000); States ...


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