The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
THOMAS HANCOCK, : CIVIL NO. 1:18-CV-687
:
Petitioner : (Chief Judge Conner)
:
v. :
:
WARDEN WHITE, :
:
Respondent :
MEMORANDUM
Presently pending before the court is a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241 (Doc. 1), filed by petitioner Thomas Hancock
(“Hancock”), an inmate confined at the United States Penitentiary, Allenwood,
Pennsylvania. Hancock contends that his due process rights were violated in the
context of a disciplinary hearing held at the at the Federal Correctional Institution
in Morgantown, West Virginia (“FCI-Morgantown”). For the reasons set forth
below, the court will deny the habeas petition.
I. Background
Hancock is serving a 100-month sentence for conspiracy to distribute, and
possession with intent to distribute, 100 grams or more of a mixture and substance
containing a detectable amount of heroin. (Doc. 1, at 5-7, Public Information
Inmate Data). His projected release date is January 1, 2023, via good conduct
release time. (Id.)
In the instant petition, Hancock challenges disciplinary proceedings that
were held at FCI-Morgantown in which he was found guilty of violating code 108,
possession of a hazardous tool – cell phone. (Doc. 1). Hancock contends that he did
not receive proper notice of the offense, and he challenges the sufficiency of
evidence. Hancock claims that constructive possession cannot apply to this charge
because there is no evidence that physically connects him to the smuggled cell
phone. (Id. at 2-3). For relief, Hancock seeks expungement of the incident report,
and restoration of forty-one (41) days good conduct time. (Id. at 4).
II. Discussion
On July 28, 2017, a staff member at FCI-Morgantown issued incident report
3015333 charging Hancock with possession of a hazardous tool – cell phone. (Doc.
7-1, at 13, Incident Report, §§ 1-16). The incident is described as follows:
On July 24, 2017, at approximately 10:45 p.m., staff discovered a ZTE
cell phone in the possession of [another inmate]. While the
Operation’s Lieutenant was taking a photograph of the cell phone, at
10:56 p.m., an incoming “Whatsapp video call” from phone number
[ending in] 0665 appeared on the screen. On July 25, 2017, at
approximately 8:06 a.m., I reviewed TRUVIEW, revealing the phone
number [ending in] 0665 only appears on the inmate list of Thomas
Hancock, Register Number 60821-007. This cell phone was issued
Evidence Control Number (ECN) MRG-17-0080. This phone number is
not associated with any other inmate in the Bureau of Prisons in any
way. Hancock has been at FCI Morgantown since June 02, 2016. This
is a re-write.
(Doc. 7-1, at 13, § 11). On July 28, 2017, the investigating lieutenant delivered a copy
of the incident report to Hancock. (Id. at 13-14, §§ 14-16, 22-24). After receiving the
incident report, Hancock responded, “I have no statement.” (Id. at 14, § 24).
On July 31, 2017, Hancock appeared before the Unit Discipline Committee
(“UDC”), and again made no statement. (Doc. 7-1, at 13, §§ 17-21). Due to the
severity of the charge, the UDC referred the incident report for a hearing before a
Discipline Hearing Officer (“DHO”), with a recommendation that sanctions be
imposed. (Id. at 13, §§ 19-20).
On July 31, 2017, a staff member informed Hancock of his rights at the DHO
hearing and provided him with a copy of the “Inmate Rights at Discipline Hearing”
form. (Doc. 7-1, at 16, Inmate Rights at Discipline Hearing). Hancock was also
provided with a “Notice of Discipline Hearing before the Discipline Hearing Officer
(DHO)” form. (Doc. 7-1, at 17, Notice of Discipline Hearing before the Discipline
Hearing Officer (DHO)). Hancock signed both forms, did not request
representation by a staff member, but elected to call a witness on his behalf. (Doc.
7-1, at 16-17).
On August 17, 2017, a DHO hearing was conducted. (Doc. 7-1, at 9-12).
During the August 17, 2017 hearing, the DHO confirmed that Hancock received
advanced written notice of the charge, that he had been advised of his rights before
the DHO, he did not request representation by a staff member, and waived the right
to call the previously requested witness. (Id. at 9). The DHO again advised
Hancock of his rights, Hancock indicated that he understood them, and that he was
ready to proceed with the hearing. (Id. at 10). During the DHO hearing, Hancock
denied the charge and stated, “No I didn’t use that phone.” (Id. at 9, 11).
In addition to the incident report and investigation, the DHO considered
documentary evidence including the chain of custody log, two digital photo
spreadsheets, a memorandum dated July 24, 2017 from Lieutenant Montgomery, a
four-page TRUVIEW report, and seven emails between Hancock and other
individuals. (Doc. 7-1, at 10, § III(D)). The DHO noted that Lieutenant
Montgomery’s memorandum stated that while taking a photograph of the cell
phone, “an incoming ‘Whatsapp video call’ from phone number [ending in] 0665
appeared on the screen.” (Id. at p. 13, § V). The DHO noted that photographic
evidence of the cellular phone which displays the incoming video call and the phone
number in which the call originates supports his decision. (Id. at pp. 12, 14, § V).
The DHO also noted that, in accordance with his rights, Hancock chose to make no
statements during the disciplinary process. (Id. at § V). The DHO found that if
Hancock was innocent of the charge, he would have provided a statement to refute
the charge. (Id. at p. 11, § V). Ultimately, the DHO determined that Hancock’s
defense, denial of the charge and that the cell phone was found on another inmate,
did not outweigh the evidence presented by the reporting officer. (Id.) The DHO
stated, “[t]he DHO does not believe that it is mere coincidence that a phone number
associated only with [Hancock], was observed to be calling this cellular phone and
this information confirms that you in fact did possess this cellular phone at some
point during your incarceration at FCI Morgantown and used it to communicate
with this phone number.” (Id.)
After consideration of the evidence, the DHO found that Hancock committed
the code 108 offense of possession of a hazardous tool or other electronic device
(cellular phone). (Doc. 7-1, at 10-11, § V). The DHO sanctioned Hancock with forty-
one (41) days loss of good conduct time, thirty (30) days disciplinary segregation,
and loss of commissary and phone privileges for one (1) year. (Id. at 11, § VI). At
the conclusion of the hearing, the DHO advised Hancock of his appeal rights. (Id. at
12, § VIII).
Hancock’s sanctions included the loss of good conduct time, therefore he has
identified a liberty interest in this matter. Liberty interests protected by the Fifth
Amendment may arise either from the Due Process Clause itself or from statutory
law. Torres v. Fauver, 292 F.3d 141 (3d Cir. 2002). It is well-settled that “prison
disciplinary proceedings are not part of a criminal prosecution and the full panoply
of rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell,
418 U.S. 539, 556 (1974). Nevertheless, the Supreme Court found that there can be a
liberty interest at stake in disciplinary proceedings in which an inmate loses good
conduct time. Id.
In Wolff, the Supreme Court set forth the following minimum procedural due
process rights to be afforded to a prisoner accused of misconduct in prison which
may result in the loss of good time credit: (1) the right to appear before an impartial
decision-making body; (2) twenty-four hour advance written notice of the
disciplinary charges; (3) an opportunity to call witnesses and present documentary
evidence in his defense when it is consistent with institutional safety and
correctional goals; (4) assistance from an inmate representative if the charged
inmate is illiterate or complex issues are involved; and, (5) a written decision by the
fact finder of the evidence relied upon and the rationale behind the disciplinary
action. Wolff, 418 U.S. at 563-67. The Supreme Court has held that the standard of
review with regard to the sufficiency of the evidence is whether there is “any
evidence in the record that could support the conclusion reached by the
disciplinary board.” Superintendent v. Hill, 472 U.S. 445, 455-56 (1985); see also
Griffin v. Spratt, 969 F.2d 16, 19 (3d Cir. 1992). If there is “some evidence” to
support the decision of the hearing examiner, the court must reject any evidentiary
challenges by the plaintiff. Hill, 472 U.S. at 457.
The Bureau of Prisons’ inmate disciplinary procedures are codified at 28
C.F.R. § 541, et seq., and entitled: Inmate Discipline and Special Housing Units.
These procedures are intended to meet or exceed the due process requirements
prescribed by the Supreme Court. See Von Kahl v. Brennan, 855 F. Supp. 1413,
1418 (M.D. Pa. 1994). Pursuant to these regulations, staff shall prepare an incident
report when there is reasonable belief that a violation of BOP regulations has been
committed by an inmate and the staff considers informal resolution of the incident
inappropriate or unsuccessful. 28 C.F.R. § 541.5. The incident is then referred to
the UDC for an initial hearing pursuant to § 541.7. The UDC “will ordinarily review
the incident report within five work days after it is issued, not counting the day it
was issued, weekends, and holidays.” 28 C.F.R. § 541.7(c). This period may be
extended if the incident is being investigated for possible criminal prosecution. 28
C.F.R. § 541.4(c). If the UDC finds that a prisoner has committed a prohibited act, it
may impose minor sanctions. 28 C.F.R. § 541.7(f). If the alleged violation is serious
and warrants consideration for more than minor sanctions, or involves a prohibited
act listed in the greatest severity category, the UDC must refer the matter to a
disciplinary hearing officer for a hearing. 28 C.F.R. § 541.7(a), (g). The inmate will
receive written notice of the charge(s) against him at least twenty-four hours before
the DHO’s hearing, however the inmate may waive this requirement. 28 C.F.R. §
541.8(c). The inmate is entitled to have a staff representative, appear at the hearing,
make a statement, present documentary evidence, and present witnesses. 28 C.F.R.
§§ 541.8(d), (e), (f). Following the hearing, the inmate will receive a written copy of
the DHO’s decision. 28 C.F.R. § 541.8(h).
In the case at bar, it is clear that Hancock was afforded all of the required
procedural rights set forth in Wolff. He received the incident report on July 28, 2017
and appeared before the UDC. Hancock was properly informed of his rights before
the DHO hearing, as well as given the opportunity to make his own statement,
present documentary evidence, have a staff representative, and to present
witnesses on his behalf. Hancock declined a staff representative, declined to call
any witnesses, and presented no evidence in support of his position. At the
conclusion of the hearing, Hancock received a written decision setting forth the
evidence relied upon by the DHO and the rationale behind the decision. Hancock
was also notified of his right to appeal.
Since Hancock was afforded all of his procedural rights, the only remaining
issue is whether there was “some evidence” to support the decision by the DHO.
The record clearly reveals the existence of evidence to allow the DHO to conclude
that Hancock was guilty of the charge. The DHO determined that the greater
weight of the evidence supported the finding that Hancock violated code 108. In
reaching the decision, the DHO considered the reporting officer’s written statement
in the incident report, the July 24, 2017 memorandum from Lieutenant
Montgomery, the photograph of the cellphone depicting the incoming video call and
the phone number in which the call originated, and Hancock’s failure to adduce any
evidence in his defense. (Doc. 7-1, at 10-11, § V). Based upon the record as relied
upon by the DHO, and without any contradictory evidence submitted by Hancock,
except a self-serving statement that “No I didn’t use that phone”, the court finds
that Hancock’s due process rights were not violated by the determination of the
DHO. (Doc. 7-1 at 9, 11).
Finally, the court finds that all sanctions imposed by the DHO were within
the limits of 28 C.F.R. § 541, et seq. Hancock was found guilty of a 100-level, greatest
severity prohibited act. Pursuant to 28 C.F.R. § 541.3, the following are the
sanctions available for 100-level prohibited acts:
A. Recommend parole date rescission or retardation.
B. Forfeit and/or withhold earned statutory good time or non-
vested good conduct time (up to 100%) and/or terminate or
disallow extra good time (an extra good time or good conduct
time sanction may not be suspended).
B.1. Disallow ordinarily between 50% and 75% (27-41 days) of good
conduct time credit available for year (a good conduct time
sanction may not be suspended).
C. Disciplinary segregation (up to 12 months).
D. Make monetary restitution.
E. Monetary fine.
F. Loss of privileges (e.g., visiting, telephone, commissary, movies,
recreation).
G. Change housing (quarters).
H. Remove from program and/or group activity.
I. Loss of job.
J. Impound inmate’s personal property.
K. Confiscate contraband.
L. Restrict to quarters.
M. Extra duty.
28 C.F.R. § 541.3 (Table 1).
Thus, the sanctions imposed by the DHO in this instance were consistent
with the severity level of the prohibited acts and within the maximum available to
the DHO. Accordingly, the petition will be denied as to incident report number
3015333.
III. Conclusion
Based on the foregoing, the court will deny the petition for writ of habeas
corpus. An appropriate order shall issue.
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania
Dated: November 4, 2019