United States District Court, M.D. Florida, Ocala Division
ORDER DENYING WRIT
WILLIAM F. JUNG UNITED STATES DISTRICT JUDGE
proceeding pro se, initiated this action by filing a
Petition for Writ of Habeas Corpus under 28 U.S.C. §
2241. (Doc. 1). Petitioner claims the Bureau of Prisons
(“BOP”) violated his due process rights when it
imposed disciplinary sanctions upon him. Id. The
Respondent filed a Response to the Petition, arguing that
Petitioner was provided with all required due process
throughout his disciplinary proceedings. (Doc. 11).
Petitioner filed a Reply. (Doc. 12). The Petition is ripe for
and Procedural History
is a federal inmate and is currently confined at the Federal
Correctional Complex Coleman USP II. Petitioner is serving an
aggregated 150-month term imposed by the United States
District Court for the Eastern District of New York.
See Case No. 1:10-cr-820-NGG-3 (E.D.N.Y.).
Petitioner is challenging a disciplinary action taken against
him at FCC Coleman USP-II, which resulted in the loss of good
conduct time (“GCT”) toward his sentence. He
raises due process claims, alleges his hearing was late and
he was framed in retaliation. (Doc. 1). Respondent requests
the dismissal of the Petition because Petitioner was afforded
all requisite due process throughout the disciplinary action
against him and the evidence against him was sufficient to
support the sanctions imposed. (Doc. 11).
a cell search of Petitioner's cell on April 4, 2018,
staff discovered a homemade smoking pipe inside
Petitioner's secured locker. (Doc. 11-1 at 8). The pipe
was made from a playing card rolled tight and a metal eraser
end cut into one end. Id. Petitioner approached the
staff member after the search and made the comment,
“you can't write me up for that k2 pipe.”
Id. The staff member then asked Petitioner,
“so that's what you smoke with this (k2)” and
he replied, “yes I do.” Id. The Incident
Report was written for a violation of BOP Disciplinary Code
113, Drug Paraphernalia. The incident report noted that it
was a rewrite. Id.
was provided with a copy of the incident report on April 19,
2018 by Lt. C. Aviles. Id. Lt. Aviles was assigned
to investigate the charge and interview Petitioner during the
investigation. Id. at 9. Lt. Aviles advised
Petitioner of his rights and Petitioner was given the
opportunity to make a statement. Petitioner indicated that he
understood his rights, understood the charges, and made the
following statement: “No comment.” Id.
Lt. Aviles concluded that Petitioner was “appropriately
charged based on the facts contained within section 11 of
this incident report…” and noted that the
incident report was served late due to a rewrite.
matter was forwarded to the Unit Discipline Committee
(“UDC”) and was heard by the UDC on May 3, 2018.
Id. at 8-9. At the UDC hearing, Petitioner stated he
was never given a copy of the original incident report just
the rewritten one. Id. at 8. Petitioner also denied
giving “that statement toward [sic] officer
Speerly” and denied having a lock for his locker.
Id. The UDC determined the matter needed to be
referred to the Discipline Hearing Officer
(“DHO”) for proper sanctions. Id.
Following the UDC hearing, Petitioner was given notice of the
hearing before the DHO. Id. at 12. He was advised of
his rights during the disciplinary process, requested Lt.
Mendez as a staff representative, and listed one witness.
Id. at 12, 14.
hearing was held on May 17, 2018. Id. at 16. At the
hearing, Petitioner stated that he understood his rights and
was ready to proceed. Id. at 18. Petitioner's
staff representative and witness appeared at the hearing.
Id. at 16-18. Petitioner initially requested
Lieutenant J. Mendez as a staff representative; however, he
was determined to be a witness to the discipline process;
therefore, he could not serve as Petitioner's staff
representative. Id. at 16. As a result, Petitioner
selected counselor R. Rodriguez, who was present the hearing
and stated, “I advised inmate Ildefonso that his
concerns need to be addressed during the appeals process, as
his counselor I never had problems or issues with inmate
denied the charge before the DHO and provided a written
statement. Id. at 16-17. In his statement Petitioner
took issue with the rewrite of the incident report and timing
of delivery. Id. at 17. Petitioner also denied
possession of the drug paraphernalia pipe and denied that his
locker was secure. Petitioner stated that it is impossible
for his locker to be secure because he doesn't own a
lock. He also raises an issue with the delay of the UDC
hearing. Id. Petitioner's witness appeared
during the hearing and stated “Speerly likes to bother
people. He likes to push people's buttons. This man
doesn't own a lock. He's in the drug program trying
to better himself. He never said those statements to
Speerly.” Id. at 18.
noted the original incident report was written on April 4,
2018; however, a rewrite of the incident report was requested
due to the incident being reported on an outdated incident
report form. Id. The second rewrite was because the
officer forgot to change the date and time in section 13.
Id. The report was finalized on April 18, 2018, and
Petitioner was given his copy the next day. Id. The
DHO noted this was explained to Petitioner during the hearing
and did not affect his ability to present a defense.
Id. The DHO stated the UDC was conducted late due to
the report being referred back to the lieutenant's office
for more information. Id. Once the report was
returned back to the UDC it was past five working days.
Id. The DHO noted this was explained at the DHO
hearing and also at the UDC hearing. Id. The DHO
explained the Warden's memo approving the delay is
included with the DHO packet and did not affect his ability
to present a defense. Id.
considered Petitioner's written statement and denial;
however, gave greater weight to the staff member's
account of the incident, investigation and the supporting
photographic evidence. Id. at 17-20 The DHO found
the reporting officer was clear in his report that he
discovered a homemade pipe inside a secured locker that was
identified as belonging to Petitioner. Id. at 19.
The photograph of the pipe supports the officer's written
statement and depicts a homemade smoking device constructed
out of a playing card rolled tight and a piece of metal from
a pencil eraser cut into one end. Id. at 20. The DHO
noted Petitioner denied the charge and stated he never had a
homemade pipe and never owed a lock. Id. Petitioner
stated he had commissary receipts that would prove he never
owned a lock. However, the DHO reasoned that commissary
receipts would only prove he didn't buy a lock from
commissary; it wouldn't prove he didn't buy a lock
from another inmate. Id.
reviewed Petitioner's witness statement and noted that
although he reinforced Petitioner's story, the DHO did
not find his statement credible “as inmates in the past
have gotten together to assist each other in in providing
deliberate falsehoods to the DHO in hopes to dispute the
written report.” Id. Additionally, although
Petitioner made an allegation the staff member planted the
pipe in his locker, he failed to provide any evidence to
support his theory. Id. The DHO considered the staff
member's eyewitness account of the incident, photograph
and written report, and found that Petitioner committed the
prohibited act of Possession of drug paraphernalia, Code 113.
Id. The DHO sanctioned Petitioner with, inter
alia, disallowance of 41 days of good conduct time.
Id. The DHO noted the sanctions were appropriate as
possession of drug paraphernalia in a correctional setting is
a very serious violation in that these acts ...