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Pedro Nieves Rivera v. Warden

December 5, 2011

PEDRO NIEVES RIVERA, PETITIONER,
v.
WARDEN, FCC COLEMAN -MEDIUM, RESPONDENT.



ORDER

THIS CAUSE comes before the Court upon the Petition for Writ of Habeas Corpus of Pedro Nieves Rivera in regards to a disciplinary hearing held on November 23, 2009. He claims:

(1) the evidence was insufficient to support a finding of guilt on his part; and

(2) his right of due process was violated because the Bureau of Prisons regulations do not give "the person of ordinary intelligence a reasonable opportunity to know what 'areas' are considered to be under or within their control."

Petitioner's Memorandum of Law, Dkt. #2, p. 8.

The Warden has filed a Response (Dkt. #11) and Petitioner has filed a Reply (Dkt. #12).

During a search of Petitioner's cell, which he shared with others, prison staff discovered a homemade plastic ice pick weapon underneath the top wall locker. Staff wrote an incident report charging Petitioner with a violation of Bureau of Prisons' disciplinary code 104 for possession of a weapon. BOP regulations provide that inmates are responsible for keeping areas within their control free of contraband. BOP Program Statement 5270.07.

A Bureau of Prisons ("BOP") lieutenant investigated the charge including interviewing Petitioner. Petitioner was given a copy of the written charge and Petitioner denied any knowledge of the weapon. The matter was referred to the Unit Discipline Committee ("UDC") for further action. The UDC referred the matter to the Discipline Hearings Officer ("DHO") due to the seriousness of the charge. Petitioner was notified that there would be a disciplinary hearing and was advised of his rights concerning the disciplinary process. Petitioner requested a staff representative be assigned to assist him in his defense and that a witness be allowed to testify on his behalf. Those requests were allowed.

The DHO held the hearing on November 23, 2009. Petitioner testified that he had moved into the cell only a short time before, on October 7, 2009. He denied knowing anything about the weapon. Petitioner's witness, one of his cell mates, testified that the weapon did not belong to either the Petitioner or the witness. The DHO also received testimony from the staff member who had found the weapon and written the charge. The DHO found Petitioner's witness to be less than credible and, after considering the testimony of the BOP staff member that found the weapon, and the statement of the staff representative who represented Petitioner, found that Petitioner had committed the prohibited act of possession of contraband.

The DHO sanctioned Petitioner with the disallowance of forty (40) days of good conduct time. The DHO report was completed on November 24, 2009, and a copy was delivered to Petitioner on November 25, 2009.

Petitioner appealed the decision and supported his appeal with a claim of "newly discovered evidence." The "new evidence" was an affidavit signed by his cell mate, the same person who testified at the hearing, claiming for the first time that the weapon belonged to him and not Petitioner.

In rejecting the appeal, the appeals administrator noted:

You contend you have discovered "new evidence" in the form of an affidavit from your cell mate at the time who indicates the weapon was his and accepts full responsibility for the weapon. Review of the record reveals this person appeared as your witness at the DHO hearing and stated the weapon did not belong to either him or you. The time for this person to acknowledge the weapon was his was during the DHO hearing. The DHO appropriately considered all evidence available at the time of the hearing and provided, in section V of the DHO report, a comprehensive description of the specific evidence relied upon to support the determination that you committed the prohibited act. We find the DHO rationally concluded the evidence supports this determination.

Administrative appeal response, Petitioner's reply ...


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