Armijo v. Cozzi-Rhodes

Filing 19

ORDER DENYING 1 APPLICATION FOR A WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241. This case is dismissed with prejudice. All pending motions are denied as moot. By Judge Philip A. Brimmer on 11/20/12.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 12-cv-00244-PAB
ARTURO D. ARMIJO,
Applicant,
v.
T.K. COZZI-RHODES, Warden,
Respondent.

ORDER DENYING APPLICATION FOR A WRIT OF HABEAS CORPUS
PURSUANT TO 28 U.S.C. § 2241

This matter comes before the Court on the Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 [Docket No. 1] filed by applicant Arturo D. Armijo.
The Court will construe the application liberally because Mr. Armijo is not represented
by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir.1991).
I. BACKGROUND
Mr. Armijo is a prisoner in the Federal Correctional Institute (FCI) at Florence,
Colorado. On June 27, 2011, a correctional officer at FCI-Florence completed an
incident report regarding intoxicants in Mr. Armijo’s cell. The incident report provided in
pertinent part as follows:
On June 21, 2011 while conducting the Official 12:00 am count in Mesa
Bravo, I came to cell 111, I smelled what seemed to be homemade
intoxicants. The cell is occupied by inmates Moreno register number
32585-044 and Armijo register number 31309-051. Upon the completion
of the 5:00 am count Officer Brewton, Lt. Shatto and myself conducted a

cell search and found approximately 2 gallons of homemade intoxicants
tied to the back of an inmate chair covered with a blanket in the common
area. The intoxicants w[ere] tested at 6:20 am with a reading of .357 and
tested again at 6:35 a.m. with a reading of .357.
(Docket No. 1, at 11). Mr. Armijo was provided a copy of the incident report on June
27, 2011. A disciplinary hearing officer (“DHO”) held a hearing on July 19, 2011 on the
charge of possession of intoxicants. Mr. Armijo declined to have a staff representative
at the hearing. (Docket No. 1, at 13). Before the hearing, applicant requested one
witness – his cell mate, Rodrigo Moreno. Id. At the hearing, the DHO read a statement
by Mr. Moreno. Id. at 19, § III.2. Applicant accepted the written statement from Mr.
Moreno in lieu of the inmate being called as a witness at the hearing. On July 25, 2011,
the DHO issued a written report finding that Mr. Armijo had violated the prison code
prohibiting the possession of intoxicants. Id. at 19-21, at § IV and V. The DHO
imposed punishment consisting of, inter alia, the loss of 14 days of good time. Id. at
21, § VI. In his application, Mr. Armijo seeks to have the good time credit restored
because he contends that his due process rights and equal protection rights were
violated. Id. at 5, 9.
II. LEGAL STANDARD
A § 2241 habeas proceeding is “an attack by a person in custody upon the
legality of that custody, and . . . the traditional function of the writ is to secure release
from illegal custody.” McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811 (10th Cir.
1997) (quoting Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)). A § 2241 petition
may challenge the deprivation of good-time credits and other prison disciplinary matters
where the challenged action affects duration of the inmate’s sentence. Id. at 811-12.
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“It is well settled ‘that an inmate’s liberty interest in his earned good time credits
cannot be denied without the minimal safeguards afforded by the Due Process Clause
of the Fourteenth Amendment.’” Howard v. U.S. Bureau of Prisons, 487 F.3d 808, 811
(10th Cir. 2007) (applying law to federal prisoner) (quoting Mitchell v. Maynard, 80 F.3d
1433, 1444 (10th Cir.1996) (internal quotation marks and citation omitted)). However,
“[p]rison 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).
Where a prison disciplinary hearing may result in the loss of good time
credits, . . . the inmate must receive: (1) advance written notice of the
disciplinary charges; (2) an opportunity, when consistent with institutional
safety and correctional goals, to call witnesses and present documentary
evidence in his defense; and (3) a written statement by the factfinder of
the evidence relied on and the reasons for the disciplinary action.
Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985) (citing Wolff, 418
U.S. at 563-67). There is no dispute in this case that these requirements were met.
Mr. Armijo, however, challenges the sufficiency of the evidence against him.
To comport with due process, there must be some evidence to support a disciplinary
conviction. Hill, 472 U.S. at 454. “Ascertaining whether this standard is satisfied does
not require examination of the credibility of witnesses, or weighing of the evidence.
Instead, the relevant question is whether there is any evidence in the record that could
support the conclusion reached by the disciplinary board.” Id. at 455-56. A disciplinary
board’s decision can be upheld by a reviewing court “even if the evidence supporting
the decision is ‘meager.’” Mitchell, 80 F.3d at 1445 (10th Cir. 1996) (quoting Hill, 472
U.S. at 457).
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III. ANALYSIS
A. Due Process Claim
The DHO considered the correctional officer’s incident report which stated that a
large container was discovered in Mr. Armijo’s cell from which emanated a strong odor
of intoxicants. The report further states that the contents of the container were tested
and contained alcohol. The Court finds that the correctional officer’s incident report,
together with the doctrine of “constructive possession” constituted “some evidence”
supporting the discipline in this case.
“In general, a person has constructive possession if he knowingly has
ownership, dominion, or control over the contraband itself or over the premises in which
the contraband is located.” See United States v. McKnight, 953 F.2d 898, 901 (5th
Cir.1992). “The proposition that constructive possession provides ‘some evidence’ of
guilt when contraband is found where only a few inmates have access is
unproblematical.” Hamilton v. O’Leary, 976 F.2d 341, 345 (7th Cir. 1992), citing Hill,
472 U.S. at 456-57 (three inmates seen fleeing from the scene of an assault), and
Mason v. Sargent, 898 F.2d 679, 680 (8th Cir. 1990) (contraband found in locker
shared by two inmates). The Tenth Circuit has expressly condoned the constructive
possession doctrine to support a prison disciplinary conviction. See Howard, 487 F.3d
at 812 (concluding that where incident report indicated that contraband was found
among the petitioner’s legal papers confiscated during the time of his detention, there
was “some evidence” to support the disciplinary sentence on a theory of constructive
possession) (citing Hamilton). “Constructive possession principles” apply unless there

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is “exculpatory evidence that makes the finding of petitioner’s ‘possession’ so unreliable
as to not satisfy the minimum constitutional standard that some reliable evidence
supports the disciplinary decision.” Thompson v. Hawk, 978 F. Supp. 1421, 1423 (D.
Kan. 1997).
Mr. Armijo denies knowledge of the intoxicants and believes that his oral
statement to the DHO and his cell mate’s written statement provided at the hearing
were not properly credited by the DHO.1 However, the fact that a cell mate accepts full
responsibility for contraband discovered in a shared cell does not necessarily preclude
a determination of constructive possession. See Mason, 898 F.2d at 679 (upholding
disciplinary decision based on constructive possession rule where petitioner’s cell mate
claimed sole responsibility for possession of contraband pajamas in their shared
locker); Miskovsky v. Franklin, No. 08-6005, 285 F. App’x 570, 571 (10th Cir. Aug. 4,
2008) (unpublished) (upholding prison disciplinary conviction based on constructive
possession, despite evidence that the petitioner’s cell mate allegedly confessed to
possession of the contraband items found in the light fixture of a cell that the petitioner
shared with another inmate); Flannagan v. Tamaz, 368 F. App’x 586, 588 (5th Cir.
2010) (unpublished) (noting that cell mate’s confession to placing contraband in the cell
common area “would not preclude the DHO’s finding of constructive possession.”);
Giles v. Hanks, 72 F. App’x 432, 433-34 (7th Cir. 2003) (unpublished) (upholding

1

Mr. Armijo also submits a statement from his cell mate dated after the
disciplinary hearing. See Docket No. 1, at 35. The Court does not consider this
statement because it was not presented to the DHO. The Court notes, however, that
the information in the statement is essentially the same as that provided to the DHO at
the time of the hearing.
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disciplinary decision based on constructive possession rule where inmate claimed sole
responsibility for contraband items).
The DHO specifically found that the statements made by Mr. Armijo and his cell
mate were not credible, given the large size of the container that was tied to a chair and
the strong odor emanating therefrom. The federal habeas court does not review the
DHO’s credibility determinations. See Hill, 472 U.S. at 455-56. It was reasonable for
the DHO to conclude that Mr. Armijo must have known about the intoxicants, but did not
report the intoxicants to correctional officials, and, therefore, that he was equally
responsible for the contraband’s presence in the common area of the cell.
Accordingly, the Court finds that Mr. Armijo’s due process rights were not
violated in the prison disciplinary hearing because there was some evidence to support
the DHO’s decision that resulted in the forfeiture of good time credits.2
B. Equal Protection Claim
Mr. Armijo also claims that the disciplinary conviction violated his equal
protection rights. (Docket No. 1, at 5). Although he does not elaborate on this claim in
his Application, he asserts in his Reply that “in other instances at this facility, before and
after this incident, DHO has accepted the Responsibility of the incident by one (1)
inmate and dismissed for the other.” (Docket No. 18, at 4).

2

Mr. Armijo also contends that the DHO relied on the statement of a confidential
informant to find him guilty of the disciplinary code violation without informing applicant
about the contents of the alleged statement. (Docket No. 1, at 3-4, 7). This assertion is
without merit as the DHO Report states specifically that the DHO did not consider a
statement from a confidential informant. See Docket No. 1 at 19, § III.E. Mr. Armijo
does not offer any facts to demonstrate otherwise.
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The Fourteenth Amendment's equal-protection guarantee applies to the federal
government through the Fifth Amendment's Due Process Clause. See
Jurado–Gutierrez v. Greene, 190 F.3d 1135, 1152 (10th Cir. 1999) (citing Schweiker v.
Wilson, 450 U.S. 221, 226 & n. 6 (1981)). The Equal Protection Clause requires that
the government treat all similarly situated persons alike. City of Cleburne v. Cleburne
Living Center, 473 U.S. 432, 439 (1985).
Mr. Armijo does not allege any specific facts to show that he was treated
differently than other similarly-situated inmates. Further, even if Mr. Armijo had
demonstrated some similarities between him and other inmates, he cannot show that
the other inmates are similar in every relevant respect. See Templeman v. Gunter, 16
F.3d 367, 371 (10th Cir. 1994) (observing that the prisoner’s claim “that there are no
relevant differences between [him] and other inmates that reasonably might account for
their different treatment is not plausible or arguable”); see also Fogle v. Pierson, 435
F.3d 1252, 1261 (10th Cir. 2006) (citing Templeman). As such, Mr. Armijo fails to
assert a threshold equal protection violation.
IV. CONCLUSION
Accordingly, it is ORDERED that the Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 [Docket No. 1] is DENIED and this case is DISMISSED
with prejudice. It is further
ORDERED that all pending motions are denied as moot.

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DATED November 20, 2012.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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