Mazzini v. Breckon

Filing 7

MEMORANDUM DECISION: ORDERED THAT the Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus is DENIED. IT IS FURTHER ORDERED THAT the Court grants a Certificate of Appealability solely with respect to whether there was some evidence th at Mazzini was knowingly involved in the shipment of contraband material (Ground 2). 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (To obtain a certificate of appealability, a prisoner must demonstrat[e] that jurists of reason could disagree with the district courts resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further. (quoting Miller-El, 537 U.S. at 327)). Any further request f or a Certificate of Appealability must be addressed to the Court of Appeals. See FED. R. APP. P. 22(b); 2D CIR. R. 22.1. The Clerk of the Court is to enter judgment accordingly. Signed by Senior Judge James K. Singleton on 10/31/17. (served on petitioner by regular mail)(alh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
MARCOS MAZZINI,
No. 9:16-cv-00359-JKS
Petitioner,
MEMORANDUM DECISION
vs.
M. BRECKON,
Respondent.

Marcos Mazzini, a federal prisoner proceeding pro se, filed a Petition for a Writ of
Habeas Corpus with this Court pursuant to 28 U.S.C. § 2241. Mazzini is in the custody of the
Federal Bureau of Prisons (“BOP”) and incarcerated at the Federal Correctional Institution
(“FCI”) Ray Brook. In his Petition before this Court, Mazzini does not contest his judgment of
conviction but rather challenges the constitutionality of a prison disciplinary hearing arising out
of his receipt by mail of pornographic material. Respondent has answered, and Mazzini has not
replied.
I. BACKGROUND/PRIOR PROCEEDINGS
On July 7, 2015, Mazzini was charged with a Code 296 violation for receiving mail through
unauthorized means, in accordance with 28 C.F.R. § 541.5. The Incident Report stated:
On 07-07-2015 at approximately 6:30 am, I was processing incoming mail, as I was
inspecting a book addressed to Inmate Mazzini #11476-051, I found two pornographic dvd’s
hidden in the back cover of the book. The 2 dvd’s [were] wrapped in carbon paper and were
secreted in the back by separating the binding of the book and gluing it back together.
The Incident Report was issued to Mazzini by Lieutenant S. Gianelli that morning at 11:30
a.m. In accordance with 28 C.F.R. § 541.5(b), Lt. Gianelli read the officer’s written statement of
the Incident Report, reviewed photos of the contraband, and interviewed Mazzini. In the section

of the Incident Report labeled “Part III–Investigation,” Lt. Gianelli noted that Mazzini stated,
“Someone used my name to get this mail into the institution.” According to Lt. Gianelli’s
investigation, Mazzini displayed a poor attitude during the investigation. Lt. Gianelli concluded that
the charge was warranted, based upon the report as written and the supporting documentation, and
referred the Incident Report to the Unit Discipline Committee (“UDC”) for review.
The UDC then conducted its review in accordance with 28 U.S.C. § 541.7. The UDC
dismissed Mazzini’s denial of responsibility, noting that an individual sending concealed contraband
would expect that the receiver would know where to look for it. In accordance with 28 C.F.R.
§ 541.7(a)(3), the committee forwarded the incident report to the Discipline Hearing Officer
(“DHO”) for further action on the charge.
Unit Manager M. Rivera provided Mazzini notice of his hearing before the DHO. He also
advised Mazzini of his right to have a full-time staff member represent him at the DHO hearing, and
Mazzini chose a teacher at FCI Ray Brook to be his staff representative. Unit Manager Rivera also
informed Mazzini of his conditional right to call witnesses for his DHO hearing. Mazzini declined
to identify any witnesses. Mazzini acknowledged both his selection of staff representative and his
waiver of witnesses by signing a “Notice of Discipline Hearing Before the DHO” form. Mazzini
also acknowledged receipt of information about his rights by signing an “Inmate Rights at
Disciplinary Hearing” form.
The DHO conducted Mazzini’s disciplinary hearing on July 16, 2015. The DHO reviewed
Mazzini’s due process rights with him at the hearing, and Mazzini stated that he understood his
rights, presented his documentary evidence, and requested no witnesses. The DHO summarized
Mazzini’s statement as follows:

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Inmate Mazzini stated that he was ready to proceed. He requested a staff
representative who was present. He requested no witnesses, and stated that he understood
his rights before the DHO. He stated that he received a copy of the Incident Report. Inmate
Mazzini stated that the incident report is not true as written. Mazzini stated that he did not
have anything to do with trying to introduce anything into the institution. Most of the people
writing me owe me money because I ran a store. I don’t receive any mail. My parents live
in another country and I e-mail my daughter. I have no connections. I don’t know who this
is from. I am doing 20 years because people have told on me.
Relying upon the reporting officer’s written statement in Section 11 of the incident report,
photos of the evidence showing that the package was addressed to Mazzini as well as photos
showing how the contraband was hidden in the book, the DHO concluded that Mazzini had
committed Use of Mail for Abuses Other Than Criminal Activity (Code 296A) and sanctioned him
to a total of 27 days of loss of Good Conduct Time, 10 days’ disciplinary segregation, 60 days of
loss of commissary privileges, and 60 days of loss of e-mail privileges.
Mazzini challenged the outcome of his DHO hearing by Regional Administrative Remedy
Appeal No. 831977-R2, arguing that there was insufficient evidence to support the DHO’s adverse
decision. The Regional Director denied the appeal, citing that “[t]he decision of the DHO was based
upon the greater weight of the evidence.” He then appealed the Regional Director’s denial on
substantially similar grounds. As of the filing of the instant Petition, Mazzini had not received a
response to his Central Office appeal within the time frame alloted by BOP regulations and was
therefore free to treat the absence of a timely response as a denial. See 28 C.F.R. § 542.18.
Mazzini then filed a pro se Petition for a Writ of Habeas Corpus to this Court on March 27,
2016.

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II. GROUNDS RAISED
In his pro se Petition before this Court, Mazzini challenges his prison disciplinary
determination, arguing that his due process rights were violated because the hearing officer did
not allow him to present all evidence in his defense and he is actually innocent of the infraction.
III. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 2241, federal prisoners who are “in custody in violation of the
Constitution or laws or treaties of the United States,” may seek habeas corpus review. 28 U.S.C.
§ 2241(c)(3). Relief under § 2241 is available to a federal prisoner who challenges the manner in
which a sentence is implemented, as opposed to challenging the underlying legality of the
conviction. Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001) (citing Chambers
v. United States, 106 F.3d 472, 474-75 (2d Cir. 1997)). As the Second Circuit has explained:
Section 2241 . . . is the proper means to challenge the execution of a sentence. In a
§ 2241 petition a prisoner may seek relief from such things as, for example, the
administration of his parole, computation of his sentence by parole officials, disciplinary
actions taken against him, the type of detention, and prison conditions in the facility where
he is incarcerated.
Adams v. United States, 372 F.3d 132, 135 (2d Cir. 2004); see also Carmona, 243 F.3d at 632;
Chambers, 106 F.3d at 474-75.
Mazzini has not replied to Respondent’s answer. The relevant statute provides that “[t]he
allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a
habeas corpus proceeding, if not traversed, shall be accepted as true except to the extent that the
judge finds from the evidence that they are not true.” 28 U.S.C. § 2248; see also Carlson v. Landon,
342 U.S. 524, 530 (1952). Where, as here, there is no traverse filed and no evidence offered to

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contradict the allegations of the return, the court must accept those allegations as true. United States
ex rel. Catalano v. Shaughnessy, 197 F.2d 65, 66-67 (2d Cir. 1952) (per curiam).
IV. DISCUSSION
A.

Procedural Due Process
The Fourteenth Amendment to the Constitution provides that “[n]o State shall . . . deprive

any person of life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV, § 1.
“Although prison inmates necessarily have their liberty severely curtailed while incarcerated, they
are nevertheless entitled to certain procedural protections when disciplinary actions subject them
to further liberty deprivations such as loss of good-time credit or special confinement that imposes
an atypical hardship.”1 Sira v. Morton, 380 F.3d 57, 69 (2d Cir. 2004) (citations omitted).
To succeed under a procedural due process claim based on the loss of good time credits or
SHU confinement, the petitioner must establish that: (1) he was not provided a written notice of the
disciplinary charges at least twenty-four hours in advance of the hearing; (2) a nonneutral hearing

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As a threshold matter, an inmate asserting a violation of his right to due process
must first establish that he had a protected liberty interest in remaining free from the
confinement that he challenges and, if so, that Respondent deprived the petitioner of that liberty
interest without due process. See Giano v. Selsky, 238 F.3d 223, 225 (2d Cir. 2001); Bedoya v.
Coughlin, 91 F.3d 349, 351 (2d Cir. 1996). “[A] prisoner has a liberty interest that is implicated
by SHU confinement if it ‘imposes [an] atypical and significant hardship in relation to the
ordinary incidents of prison life.’” J.S. v. T’Kach, 714 F.3d 99, 106 (2d Cir. 2013) (quoting
Sandin v. Conner, 515 U.S. 472, 484 (1995)). It is not clear, however, that the 10-day period of
SHU confinement imposed upon Mazzini is also sufficient to implicate a liberty interest. See
Palmer v. Richards, 364 F.3d 60, 65 (2d Cir. 2004) (finding that disciplinary segregation lasting
more than 305 days implicates a protected liberty interest even if served under “normal” SHU
conditions because a term of that length is a “sufficient departure from the ordinary incidents of
prison life” (quoting Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000)). However, the Court
need not decide that issue because it is well-settled that a prisoner charged with violating a
prison regulation which could result in the loss of good time credit is entitled to minimal due
process protections. Wolff v. McDonnell, 418 U.S. 539, 563-65 (1974); Preiser v. Rodriguez,
411 U.S. 475, 482, 487-88 (1973).
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body conducted the hearing; (3) he was not afforded the opportunity to present evidence and call
witnesses; (4) he was not granted assistance to understand and prepare his defense; or that (5) the
factfinder failed to provide a written statement of the evidence relied upon in making his decision
and the reasons for the decision. See Wolff, 418 U.S. at 563-67. In his Petition before this Court,
Mazzini alleges that his procedural due process rights were violated under the third element
described above (right to present a case).
An “inmate facing disciplinary proceedings should be allowed to call witnesses and present
documentary evidence in his defense when permitting him to do so will not be unduly hazardous to
institutional safety or correctional goals.” Wolff, 418 U.S. at 566. However, “a hearing officer does
not violate due process by excluding irrelevant or unnecessary” evidence. Kalwasinski v. Morse,
201 F.3d 103, 109 (2d. Cir. 1999); see also Amaker v. Coombe, No. 96 Civ. 1622, 2002 WL 523388,
*10 (S.D.N.Y. 2002) (“[A]n inmate’s right to present documentary evidence in his defense does not
entail an obligation on the part of prison officials to retrieve every document that an inmate requests
for his case[,] [e]ven when documents are relevant and obtainable.”).
In his Petition, Mazzini states that he “requested review of all my past inmate phone
conversations and e-mails” to “introduce evidence to the hearing officer of having no contacts in the
State of New Jersey of the book store.” In this case, the return address of the prohibited package
read “Barnes and Noble,” but the book and contraband were clearly not a legitimate mailing from
a Barnes and Noble bookstore. It was therefore irrelevant whether Mazzini could establish that he
had no contacts with that bookstore, and his due process rights were not violated when his request
was denied.

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B.

Substantive Due Process
Mazzini additionally contends that he is actually innocent of the charge, which the Court

construes as a claim that there is insufficient evidence to support the hearing officer’s adverse
determination. Where a prisoner claims he was denied due process in a prison disciplinary hearing
because he was found guilty based on insufficient evidence, the claim must be rejected if there was
“some evidence” to support the decision. Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445,
455 (1985). In Hill, the Supreme Court stated that:
[a]scertaining whether this standard is satisfied does not require examination of the entire
record, independent assessment 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; see also Flanagan v. Tamez, 368 F. App’x 586, 587-88 (5th Cir. 2010) (no “de novo
review of the disciplinary board’s factual finding is required,” but courts “must consider ‘whether
any evidence at all supports the action taken by the prison officials’” (internal quotation marks and
citation omitted)); Johnson v. Goord, 305 F. App’x 815, 818 (2d Cir. 2009) (stating that the “some
evidence” standard is “extremely tolerant and is satisfied if there is any evidence in the record that
supports the disciplinary ruling” (citation omitted)).
The issue of whether “some evidence” supports Mazzini’s adverse determination is a closer
question than Ground 1, but is ultimately not one that is resolved in his favor. Importantly, there
are no facts which undermine the logical conclusion that Mazzini was responsible for procuring the
mailing of the contraband material. It is worth noting that, on these facts, adopting Mazzini’s
position would mean that, in all prison settings, the discovery of contraband in an inmate’s received
mail would be insufficient to support the imposition of discipline consistent with due process. Such
rule would significantly impair the ability of corrections officials to deter prisoners from having such
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contraband mailed to them. Cf. Quintanilla v. O’Brien, 127 F. App’x 887, 889 (7th Cir. 2005)
(rejecting assumption that all prisoners have equal access to unlocked cells because such rule would
render discipline too difficult in all prisons that “do not operate on continuous lockdown”). In sum,
“some evidence” supports the conclusion that Mazzini was responsible for procuring the mailing
of the contraband material, and he has not established a violation of substantive due process either.
V. CONCLUSION
Mazzini is not entitled to relief on any ground raised in his Petition.
IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for a Writ
of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT the Court grants a Certificate of Appealability
solely with respect to whether there was some evidence that Mazzini was knowingly involved in
the shipment of contraband material (Ground 2). 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S.
668, 705 (2004) (“To obtain a certificate of appealability, a prisoner must ‘demonstrat[e] that
jurists of reason could disagree with the district court’s resolution of his constitutional claims or
that jurists could conclude the issues presented are adequate to deserve encouragement to
proceed further.’” (quoting Miller-El, 537 U.S. at 327)). Any further request for a Certificate of
Appealability must be addressed to the Court of Appeals. See FED. R. APP. P. 22(b); 2D CIR. R.
22.1.
The Clerk of the Court is to enter judgment accordingly.
Dated: October 31, 2017.
/s/ James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge

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