Cardena v. USA et al

Filing 5

ORDER DISMISSING CASE with prejudice. Signed by Chief Judge David R. Herndon on 8/8/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROBERT CARDENA,
42920-424,
Petitioner,
vs.
U.S.A. and WARDEN WALTON,
Respondents.

Case No. 14-cv-00801-DRH
MEMORANDUM AND ORDER

HERNDON, Chief Judge:
Petitioner Robert Cardena, an inmate in the United States Penitentiary in
Marion, Illinois (“Marion”), brings this habeas corpus action pursuant to 28
U.S.C. § 2241.

On September 4, 2013, prison authorities, acting on a tip,

searched Cardena’s cell and discovered two weapons hidden inside a modified
pocket of a pair of his pants. Cardena was charged and convicted of possession
of a sharpened instrument. As a result, Cardena lost 41 days of good conduct
time credit. In the petition now before this Court, Cardena seeks restoration of
the 41 days of lost good conduct time credit.
Rule 4 of the Rules Governing Section 2254 Cases in United States District
Courts provides that upon preliminary consideration by the district court judge,
“[i]f it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the petitioner.” Rule 1(b) of those Rules

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gives this Court the authority to apply the rules to other habeas corpus cases.
After carefully reviewing the petition in the present case, the Court concludes that
this petition does not survive review under Rule 4, and must be dismissed.
Background
The facts pertinent to the Court’s review of Cardena’s petition are as
follows: On September 4, 2013, prison authorities were notified of the possible
presence of weapons in a cell shared by Cardena and his cellmate, Adam Alicea.
(Doc. 1, p. 6). Authorities conducted a search and discovered two homemade
weapons inside a modified pocket of a pair of pants bearing an iron-on sticker
with Cardena’s name and inmate number. Id.

The pants were found hanging

from the corner of a double bunk, considered a common area, in the cell. Id.
Cardena immediately denied ownership, as well as any knowledge of the
weapons. Id. He insisted that he never wore the pants and knew nothing about
the weapons hidden inside. Id. Instead, during the investigation and subsequent
hearing, Cardena’s cellmate, Alicea, claimed ownership of the knives. Id. at 11. In
an affidavit filed with this petition, Alicea states, “these ‘knives’ were mine and my
cell mate, Robert Cardena, had no knowledge of them at all.” Id. at 14-15. Alicea
further asserts, “I hid these weapons in an unused extra pair of pants that
belonged to my cell mate, Robert Cardena.

He never used these pants, and I

never told him that I hid the knives inside of them.” Id. at 15.
Despite Alicea’s acceptance of full responsibility for the weapons, Alicea
and Cardena were charged with possession of a sharpened instrument. Id. at 5-6.

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Due to the seriousness of the charge and the potential loss of good conduct time,
the incident was referred to a Disciplinary Hearing Officer (“DHO”) for final
disposition.
Following a hearing, the DHO found that Cardena had committed the
prohibited act as charged based on “the greater weight of the evidence.” Id. at 8.
The DHO Report provided a thorough recitation of the events and the evidence
relied upon. Id. at 7-9. Specifically, the DHO noted that the weapons were found
in a common area of the cell inside pants marked with Cardena’s name.
According to institutional policy, inmates are responsible for any contraband
found in their assigned areas, including common areas. This policy is outlined in
a handbook on Inmate Rights and Responsibilities, which Cardena admitted
receiving. Id. at 8.
On appeal to the regional administrative level, Cardena challenged the
DHO’s determination that Cardena had committed the prohibited act on the basis
that Alicea had accepted full responsibility for the weapons.

Id. at 16.

response denying Cardena’s appeal, the regional director noted,
Statements from other inmates claiming sole possession may not be
found credible because they are often coerced into taking
responsibility. In order for the statement of another inmate to be
credible, there must be corroborating evidence in conjunction with
the admission. Although your cellmate testified that the weapons
belonged to him, the weapons were found in your pants. In this case,
there was no corroborating evidence to support the admission of
your cellmate.

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In a

Id. On February 19, 2014, Cardena filed a subsequent appeal with the central
office, but had not received a “satisfactory” 1 response prior to filing the present
petition.
Analysis
In the present petition, Cardena maintains his “actual innocence” and
challenges the sufficiency of the evidence in support of the DHO’s determination
that Cardena had committed the prohibited act as charged. Cardena insists that
since his punishment includes the loss of good conduct credits that “some
evidence” should not be the applicable standard. However, the Supreme Court
and the Seventh Circuit have made it quite clear that this is, in fact, the legal
standard to be applied in cases such as this.
With regards to the sufficiency of evidence, the Supreme Court has held
that due process requires that the findings of the disciplinary tribunal be
supported only by some evidence in the record. Superintendent v. Hill, 472 U.S.
445, 455 (1985); McPherson v. McBride, 188 F.3d 784, 786 (7th Cir. 1999). In
reviewing the sufficiency of the evidence, the Seventh Circuit has instructed that
lower courts are to apply a lenient standard when determining “whether there is
any evidence in the record that could support the conclusion reached by the
disciplinary board.” See Webb v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000)
(emphasis in original). “Even ‘meager’ proof will suffice as long as ‘the record is
not so devoid of evidence that the findings of the disciplinary board were without
support or otherwise arbitrary.’” See id. (quoting Hill, 472 U.S. at 457).
1

It is unclear whether the central office has yet to provide any response to Cardena’s appeal.
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The Court, therefore, must determine whether there is any evidence that
could support the DHO’s finding that Cardena violated Code 104, “possession of a
sharpened instrument.” 28 C.F.R. § 541.3, Table 1 (2011). The DHO’s findings
note that the weapons were found in a pair of pants bearing Cardena’s name.
Cardena does not dispute this fact.

Even though Cardena’s cellmate claimed

ownership of the weapons, the DHO determined that Cardena was still
responsible for the weapons based on Bureau of Prison (“BOP”) policy, which
provides that inmates are responsible for any contraband found in their personal
belongings or within the common space of their cell.

Based on the lenient

standard set out by the Seventh Circuit, the location of the weapons – an
undisputed fact – supports the conclusion of guilt reached by the DHO. See Giles
v. Hanks, 72 F. App'x 432, 434 (7th Cir.2003) (Even where one inmate claims
ownership of contraband, “two individuals may exercise joint possession.”)
Because Cardena was found guilty of the offense by “some evidence,” he has failed
to show that the process he received before losing good time credit was
constitutionally inadequate.

For this reason, this petition is dismissed with

prejudice.
Disposition
In summary, this habeas action does not survive review under Rule 4.
Accordingly, this action is DISMISSED with prejudice.
If petitioner wishes to appeal this dismissal, he may file a notice of appeal with
this court within thirty days of the entry of judgment. FED. R. APP. P. 4(a)(4). A motion
for leave to appeal in forma pauperis should set forth the issues petitioner plans to
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present on appeal. See FED. R. APP. P. 24(a)(1)(C). If petitioner does choose to appeal
and is allowed to proceed IFP, he will be required to pay a portion of the $505.00
appellate filing fee in order to pursue his appeal (the amount to be determined based on
his prison trust fund account records for the past six months) irrespective of the outcome
of the appeal. See FED. R. APP. P. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547
F.3d 724, 725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999);
Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). A timely motion filed pursuant to
Federal Rule of Civil Procedure 59(e) may toll the 30-day appeal deadline.

It is not

necessary for petitioner to obtain a certificate of appealability. Walker v. O’Brien, 216
F.3d 626, 638 (7th Cir. 2000).
The Clerk is DIRECTED to close this case and enter judgment accordingly.
IT IS SO ORDERED.

Digitally signed by
David R. Herndon
Date: 2014.08.08
13:15:10 -05'00'

DATED: August 8, 2014

Chief Judge
United States District Court

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