LOPEZ-NEGRON v. ORTIZ
Filing
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OPINION. Signed by Judge Robert B. Kugler on 9/27/2019. (dmr)(n.m.)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
FRANCISCO E. LOPEZ-NEGRON,
Civil Action
No. 16-9075 (RBK)
Petitioner,
v.
OPINION
DAVID ORTIZ,
Respondent.
ROBERT B. KUGLER, U.S.D.J.
Petitioner, Francisco E. Lopez-Negron, is a federal prisoner currently incarcerated at FCI
Fort Dix, in Fort Dix, New Jersey. He is proceeding pro se with a Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2241. Respondent filed an Answer opposing relief (ECF No. 6),
and Petitioner did not file a reply. For the reasons set forth below, the Court will dismiss the
Petition.
I.
BACKGROUND
This case arises from a disciplinary hearing during Petitioner’s incarceration at FCI Fort
Dix. On February 6, 2016, officials observed Petitioner place what appeared to be a cellphone in
a jacket hanging on Petitioner’s bunk. After conducting a search of the jacket, officials recovered
a cell phone and issued an incident report charging Petitioner with possession of a hazardous tool,
in violation of Bureau of Prisons Code 108,1 delivered the report to Petitioner, and advised him of
his rights.
Code 108 prohibits the “[p]ossession, manufacture, introduction, or loss of a hazardous tool (tools
most likely to be used in an escape or escape attempt or to serve as weapons capable of doing
serious bodily harm to others; or those hazardous to institutional security or personal safety; e.g.,
hack-saw blade, body armor, maps, handmade rope, or other escape paraphernalia, portable
telephone, pager, or other electronic device).” 28 C.F.R. § 541.3 (Table 1). “Aiding, attempting,
1
On that same day, the investigating official referred the incident report to the Unit
Discipline Committee (“UDC”). On February 11, 2016, after an initial hearing before the UDC,
the UDC referred the incident report to a Discipline Hearing Officer (“DHO”), and again advised
Petitioner of his rights.
On February 26, 2016, the DHO held a hearing and again advised Petitioner of his rights.
Petitioner confirmed that he did not want a staff representative and did not wish to call any
witnesses. At the hearing, Petitioner stated that the jacket and cell phone did not belong to him.
The DHO considered Petitioner’s statements in reaching a decision, as well as: the incident
report; the chain of custody log for the cell phone; a memorandum from a second officer who
observed Petitioner place the phone in the jacket; and a photo of the cellphone.
After considering all of the evidence, the DHO concluded that Petitioner committed the act
of possessing a dangerous tool, in violation of Code 108. The DHO then issued the following
sanctions: (1) revocation of forty days of good conduct time; (2) fifteen days of disciplinary
segregation; (3) loss of email privileges for twelve months; and (4) loss of phone privileges for
twelve months.
The parties dispute what transpired next. According to Petitioner, he mailed his appeal to
the regional director2 of the Bureau of Prisons (“BOP”), on May 13, 2016, within the twenty-day
time limit to appeal. Petitioner did not receive a response and assumed that the regional director
denied his appeal. Thereafter, Petitioner filed an appeal of that assumed denial, to the BOP central
abetting, or making plans to commit any of the prohibited acts is treated the same as committing
the act itself.” Id. at § 541.3(a).
2
A prisoner may challenge the outcome of a disciplinary hearing directly to the regional director
level, rather than filing an initial appeal with the warden of the institution. See 28 C.F.R. §
542.14(d)(2).
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office, who rejected his appeal for, among other things, failing to first appeal to the regional
director. Petitioner appears to have filed a second appeal at the central office level and received a
similar denial.
On November 7, 2016, Petitioner filed another appeal to the regional director, who denied
the filing as untimely. Petitioner contends that the post office or the regional director’s office
itself, must have lost his original and timely May 13, 2016, appeal.
Petitioner then filed the instant Petition, requesting that the Court issue an order directing
the regional director to decide Petitioner’s administrative appeal on the merits. Respondent filed
an Answer (ECF No. 6), and Petitioner did not file a reply.
II.
STANDARD OF REVIEW
Courts hold pro se pleadings to less stringent standards than more formal pleadings drafted
by lawyers. See Estelle v. Gamble, 429 U.S. 97, 106 (1976). Courts must construe pro se habeas
petitions and any supporting submissions liberally and with a measure of tolerance. See Royce v.
Hahn, 151 F.3d 116, 118 (3d Cir. 1998).
If the Court does not dismiss the petition at the screening stage, the Court “must review the
answer, any transcripts and records . . . to determine whether” the matter warrants an evidentiary
hearing. Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District Courts
(made applicable to proceedings under § 2241 by Rule 1(b)). “Whether to order a hearing is within
the sound discretion of the trial court,” and depends on whether the hearing “would have the
potential to advance the petitioner’s claim.” Campbell v. Vaughn, 209 F.3d 280, 287 (3d Cir.
2000); States v. Friedland, 879 F. Supp. 420, 434 (D.N.J. 1995) (applying the § 2255 hearing
standard to a § 2241 petition), aff’d, 83 F.3d 1531 (3d Cir. 1996).
Where a petitioner fails to identify evidence outside the record that would support or
“otherwise . . . explain how . . . an evidentiary hearing” would advance his claim, a court is within
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its discretion to deny an evidentiary hearing. Campbell, 209 F.3d at 287. In exercising that
discretion, a court must accept the truth of a petitioner’s factual allegations unless the record shows
that they are clearly frivolous. Friedland, 879 F. Supp. at 434; c.f. United States v. Tolliver, 800
F.3d 138, 141 (3d Cir. 2015).
III.
DISCUSSION
Under 28 U.S.C. § 2241, the “writ of habeas corpus shall not extend to a prisoner unless .
. . [h]e is in custody in violation of the Constitution or laws or treaties of the United States.”
“Challenges to the validity of any confinement or to particulars affecting its duration are the
province of habeas corpus” but prisoners may only present “requests for relief turning on
circumstances of confinement . . . in a § 1983 [or Bivens] action.” Muhammad v. Close, 540 U.S.
749, 750 (2004) (citation omitted). Stated differently, a petitioner may only bring a claim in a §
2241 petition if it “would fall within the ‘core of habeas’ and require sooner release” if a court
decided the claim in petitioner’s favor. Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002)
(emphasis added).
With those principles in mind, the Court finds that Petitioner’s claim does not sound in
habeas. A petition for writ of habeas corpus seeks to challenge the fact or length of confinement.
Preiser v. Rodriguez, 411 U.S. 475, 491 (1973). Petitioner’s claim, however, does not directly
attack the duration of his incarceration nor does it seek release from prison.
Instead, Petitioner challenges the decision to deny his administrative appeals as untimely
and requests an opportunity to have the regional director decide his appeal on the merits. Stated
differently, Petitioner does not directly challenge the DHO’s decision to revoke his good time
credits. Indeed, Petitioner, to his credit, acknowledges that he would likely lose such a challenge.3
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Petitioner effectively concedes that the DHO relied on sufficient evidence to meet this Court’s
“some evidence” standard of appellate review when reviewing such DHO decisions. (ECF No. 1,
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Nevertheless, because a finding in Petitioner’s favor, such as declaring his initial
administrative appeal timely, or ordering Respondent to decide that appeal on the merits, “would
not [directly] alter his sentence or undo his conviction,” he cannot proceed by habeas petition. See
Leamer, 288 F.3d at 542. Effectively, the opportunity to file a timely administrative appeal
“carries with it only the potential for a . . . sentence reduction . . . [only] a ticket to get in the door.”
Cf. id.
Broadly speaking, whether an inmate has access to any administrative appeal process is a
circumstance of his confinement. See Manuel v. Stewart, No. 13-2043, 2014 WL 4094788, at *1
(D. Md. Aug. 18, 2014) (holding that the failure to process or provide administrative appeal forms
constitutes a circumstance of confinement claim).
Consequently, because Petitioner only challenges a circumstance of his confinement, this
Court “lack[s] jurisdiction under the habeas corpus statute to hear Petitioner’s” claim. Cf. Beckley
v. Miner, 125 F. App’x 385, 388 (3d Cir. 2005) (citing Leamer, 288 F.3d at 543) (concluding in a
different context that an opportunity for a sentence reduction does not directly challenge the fact
or duration of one’s confinement, but only a circumstance of their confinement). Accordingly, the
Court will dismiss the Petition.
Although not necessary to the Court’s disposition, assuming the Court had jurisdiction, the
Petition would still fail to state a claim. In Wolff v. McDonnell, 418 U.S. 539, 563–71 (1974), the
Supreme Court held that before a prisoner may lose good time credits, officials must afford him
the following due process protections: (1) a written notice of the charges at least twenty-four hours
prior to a hearing; (2) an opportunity to call witnesses and present evidence in his defense; (3) an
at 11–12). More specifically, Petitioner refers to the reports of two officers who allege that they
saw Petitioner place the cell phone into the jacket.
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opportunity to receive assistance from an inmate representative; (4) a written statement of the
evidence relied on and the reasons for the disciplinary action; and (5) an appearance before an
impartial decision making body. See Crosby v. Piazza, 465 F. App’x 168, 171–72 (3d Cir. 2012)
(per curiam) (citing Wolff, 418 U.S. at 563–71).
As this Court has held, however, “the right to appeal disciplinary convictions is not within
[Wolff’s] narrow set of due process rights.” Fernandez v. Hollingsworth, No. 15-3492, 2015 WL
4578433, at *2 (D.N.J. July 29, 2015) (collecting cases). Nor is there a constitutional right to an
administrative appeal process or any particular relief through such process. See, e.g., Horsh v.
Clark, No. 17-316, 2019 WL 1243009, at *5 (W.D. Pa. Mar. 18, 2019) (citing Jones v. N. C.
Prisoners’ Labor Union, Inc., 433 U.S. 119, 137–38 (1977)); Peterson v. Holmes, No. 12-865,
2012 WL 5451435, at *7 (D.N.J. Nov. 7, 2012). Accordingly, as Petitioner has no due process
right to appeal his disciplinary conviction, the Court would summarily dismiss the Petition on this
ground as well. Fernandez, 2015 WL 4578433, at *2.
IV.
CONCLUSION
For the foregoing reasons, Court will dismiss the Petition. An appropriate Order follows.
DATED: September 27, 2019
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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