ARREOLA-ALBARRAN v. ORTIZ

Filing 9

OPINION. Signed by Judge Robert B. Kugler on 8/13/2019. (rss, n.m.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

CANDIDO ARREOLA-ALBARRAN,
Civil Action
No. 17-4500 (RBK)

Petitioner,
v.

OPINION
DAVID ORTIZ,
Respondent.
ROBERT B. KUGLER, U.S.D.J.
Petitioner, Candido Arreola-Albarran, 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. 8),
and Petitioner did not file a reply. For the reasons set forth below, the Court will deny the Petition.
I.

BACKGROUND

This case arises from a disciplinary hearing during Petitioner’s incarceration at FCI Fort
Dix. At 1:00 p.m., on August 20, 2016, prison officials found a cell phone in the possession of a
Fredy Arbito, another prisoner at the facility. Officials analyzed the phone on August 22, 2016
and found that someone had used the phone to call a person at 11:01 a.m. and another person at
11:56 a.m., on August 20, 2016. A system report revealed that those numbers were on Petitioner’s
approved list and belonged to Petitioner’s parent and children. As a result, later that same day,
officials 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.
On that same day, the investigating official referred the incident report to the Unit
Discipline Committee (“UDC”). On August 23, 2016, Petitioner received a notice of disciplinary
hearing, and officials advised him of his rights. Petitioner signed an acknowledgement of those
rights and indicated that he did not want to have a staff representative or call any witnesses.
On August 24, 2016, the UDC held an initial hearing, where Petitioner admitted that the
numbers belonged to his family members but stated that he did not know how the numbers
appeared in the phone. He also denied ever using the phone. After the hearing, the UDC referred
the incident report to a Discipline Hearing Officer (“DHO”).
Several months later, on December 16, 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. Petitioner stated that “he did not know how the phone number showed
up on the cell phone” and that “his family had made calls but no one said anything to him about
anybody else contacting them.” (ECF No. 8-3, at 20).
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 the staff member who
recovered the cell phone; photos of the cellphone, including recently dialed numbers; and a system
report for the two phone numbers in the phone’s recent call log.

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,
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).
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In particular, the DHO found that the system report showed that the two phone numbers at
issue were only on Petitioner’s approved phone list, rather than on any other inmates’ approved
list. After considering all of the evidence, the DHO concluded that Petitioner committed the act of
aiding in the possession of 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) loss of email privileges
for ninety days; and (3) loss of phone privileges for ninety days.
Petitioner appealed the DHO’s decision, arguing that the weight of the evidence did not
support the DHO’s findings. More specifically, Petitioner argued that he was at work during the
calls to his family and that the DHO failed to explain “how” Petitioner aided another inmate in
possessing a cellphone. At each level of appeal, Petitioner received a denial. The parties dispute
whether Petitioner raised these allegations at any of his hearings.
Petitioner then filed the instant Petition, again arguing that the DHO’s decision was against
the greater weight of the evidence. Respondent filed an Answer (ECF No. 8), and Petitioner did
not file a reply.
II.

STANDARD OF REVIEW & JURISDICTION

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
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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
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).
Under 28 U.S.C. § 2241(c), habeas jurisdiction “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.” 28 U.S.C.
§ 2241(c)(3). The federal habeas statute requires that the petitioner be in custody “under the
conviction or sentence under attack at the time his petition is filed.” Lee v. Stickman, 357 F.3d 338,
342 (3d Cir. 2004) (quoting Maleng v. Cook, 490 U.S. 488, 490–91 (1989)).
This Court has subject matter jurisdiction under § 2241 to consider the instant Petition
because Petitioner challenges the loss of good conduct time on constitutional grounds and he was
incarcerated in New Jersey at the time he filed the Petition. See Woodall v. Fed. Bureau of Prisons,
432 F.3d 235, 242–44 (3d Cir. 2005).
III.

DISCUSSION

Petitioner appears to only argue that the DHO’s findings were against the greater weight
of the evidence. In response, Respondent contends that Petitioner received all the required due
process protections, and that in any event, there is “some evidence” to support the DHO’s findings
and decision.

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Under our jurisprudence, 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 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 v. McDonnell, 418 U.S. 539, 563–71 (1974)). Petitioner does not appear
to contest that he received these due process protections.
Additionally, in order to comport with due process, there must be “some evidence in the
record” to support a disciplinary officer’s findings and decision to revoke good time credits.
Gonzalez v. Hollingsworth, No. 15-2993, 2016 WL 1732376, at *2 (D.N.J. May 2, 2016) (quoting
Denny v. Schultz, 708 F.3d 140, 144 (3d Cir. 2013)). The “some evidence” standard is one of
appellate review and is not the same as the “burden of proof in a prison disciplinary proceeding.”
Id.
Indeed, the “some evidence” standard is “minimal and does not require examination of the
entire record, an independent assessment of the credibility of the witnesses, or a weighing of the
evidence.” Lang v. Sauers, 529 F. App’x 121, 123 (3d Cir. 2013) (citing Thompson v. Owens, 889
F.2d 500, 502 (3d Cir. 1989)). Instead, “the relevant inquiry asks whether ‘there is any evidence
in the record that could support’” the disciplinary official’s conclusion. Id. (quoting Superintendent
v. Hill, 472 U.S. 445, 455–56 (1985).
In the present case, apart from the other evidence discussed above, the DHO found that
two of the numbers on the phone’s recent call log matched numbers on Petitioner’s approved

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contact list. Petitioner conceded that these numbers belonged to his family members. The DHO
further noted that these phone numbers did not appear on any other inmates’ approved contact list.
While officials did not find the cell phone in question within Petitioner’s possession,
“courts have found that the presence . . . of a number which only appears on a particular inmate’s
approved phone list constitutes ‘some evidence’ that such inmate possessed the cell phone in
question.” See, e.g., Gonzalez, 2016 WL 1732376, at *2 (citing Burns v. Hollingsworth, No. 135485, 2014 WL 1117932, at *2 (D.N.J. Mar. 20, 2014) (collecting cases)).
Petitioner does not contest this particular evidence, and thus, has “failed to show that the
DHO’s decision lacked ‘some evidence’” to support his findings. Burns, 2014 WL 1117932, at *2.
Indeed, evidence that officials found numbers on the cell phone that only matched contacts on
Petitioner’s approved list, coupled with Petitioner’s statement that he recognized the numbers, are
enough to meet the minimally stringent “some evidence” standard that Petitioner aided2 the
possession of a hazardous tool. Cf. id.
Consequently, whether Petitioner personally made the two calls, whether he was working
at the time3 of those calls, and whether he raised this argument at the hearing itself, do not change
the conclusion that the DHO had “some evidence” to arrive at his decision. Ultimately, Petitioner
asks the Court to reweigh the evidence, but that is not the duty of this Court when reviewing a

Petitioner appears confused as to how this evidence could logically amount to “aiding” the
possession of a cell phone. The Court finds that the evidence led the DHO to the natural
conclusion, that Petitioner must have used the phone in some way or directed another to use the
phone, and then allowed another inmate to receive the phone. Petitioner simply offers no other
explanation as to why the phone’s recent call log would show that someone made calls to his
family members.
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Assuming Petitioner raised this argument at the hearing, Respondent submits evidence that
August 20, 2016, was a Saturday and that Petitioner would typically not have worked that day, and
in any event, the calls occurred during lunch time. (ECF No. 8, at 18). Petitioner does not contest
these allegations.
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DHO’s decision to revoke good time credits. See Lang, 529 F. App’x at 123. Accordingly, the
Court will deny the Petition.
IV.

CONCLUSION

For the foregoing reasons, Court will deny the Petition. An appropriate Order follows.

DATED: August 13, 2019

s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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