Moreta v. Marionna

Filing 10

MEMORANDUM (Order to follow as separate docket entry) (eo)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PEDRITO MORETA,
Petitioner,
v.
CHARLES MARIONNA,
Respondent.

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1:15-cv-1915
Hon. John E. Jones III

MEMORANDUM
June 7, 2017
Presently before the court is a petition for writ of habeas corpus (Doc. 1)
pursuant to 28 U.S.C. § 2241, filed by Petitioner Pedrito Moreta (“Moreta”), a
federal inmate housed at the United States Penitentiary at Canaan (“USP-Canaan”),
Waymart, Pennsylvania. He alleges that his due process rights were violated in the
context of a disciplinary proceeding. The petition is ripe for disposition and, for
the reasons that follow, will be denied.
I.

BACKGROUND
The Federal Bureau of Prisons (“BOP”) disciplinary process is fully outlined

in Code of Federal Regulations, Title 28, Sections 541 through 541.8 (2011).
These regulations dictate the manner in which disciplinary action may be taken
should a prisoner violate, or attempt to violate, institutional rules. The first step
requires filing an incident report and conducting an investigation pursuant to 28
C.F.R. § 541.5. Staff is required to conduct the investigation promptly absent

intervening circumstances beyond the control of the investigator. 28 C.F.R. §
541.5(b).
Following the investigation, the matter is then referred to the Unit
Disciplinary Committee (“UDC”) for a hearing pursuant to 28 C.F.R. § 541.7. If
the UDC finds that a prisoner has committed a prohibited act, it may impose minor
sanctions. Id. If the alleged violation is serious and warrants consideration for
more than minor sanctions, or involves a prohibited act listed in the greatest or
high category offenses, the UDC refers the matter to a Disciplinary Hearing
Officer (“DHO”) for a hearing. Id. Greatest Severity category offenses carry a
possible sanction of, inter alia, loss of good conduct time credits. 28 C.F.R. §
541.3.
On May 21, 2014, Moreta received Incident Report 2585429, charging him
with “Use of the telephone for abuses other than criminal activity” in violation of
Prohibited Act Code 297 and “Disruptive Conduct, most like Code 297 – use of
email for abuses other than criminal activity” in violation of Prohibited Act Code
299. (Doc. 8-1, p. 67). The incident is described as follows: “On May 21, 2014,
at 4:00 p.m., a review of inmate telephone and e-mail accounts was conducted.
This review showed that inmate Moreta, Pedrito, #60511-066 allowed inmate
Edwards, Tony, #51390-054 to use his telephone and e-mail accounts on multiple
occasions from October of 2013 to April of 2014.” (Id.) The report contained
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detailed support for the charges including telephone records demonstrating that
Edwards placed 157 telephone calls using Moreta’s telephone account and sent
2,951messages to Shavon Thomas using Moreta’s e-mail account. (Id. at 67-68).
Notice in advance of the DHO hearing was provided to Moreta on May 21,
2014. (Id. at 22). On May 22, 2014, the UDC referred the matter to the DHO due
to the seriousness of the alleged act and the attendant sanctions. (Id. at 18).
Moreta was advised of his rights on that same day. (Id. at 20-21). He requested L.
Brandenburg, Counselor, as his staff representative and sought to call Inmates
Edwards and Carr as witnesses at the DHO hearing. (Id.)
During the June 5, 2014, disciplinary hearing, the DHO noted that staff
provided Moreta with written notice of the charges against him and advised him of
his rights in advance of the hearing. (Id. at 22). His staff representative, L.
Brandenburg, “noted no discrepancies in the discipline process and was disclosed
all documentation in reference to this case. Further she met with Moreta in
advance of the hearing to discuss the case. She had no comment for the record.”
(Id.) The DHO documented the following inmate statement: “I request the date
Edwards was issued the incident report. The staff member has twenty-four hours
to issue the incident report. It was well after the time frames. I feel my rights were
violated.” (Id.at 23). He made no statement specific to the charge. (Id.)

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With regard to Moreta’s requested inmate witnesses, the DHO stated as
follows:
The following persons requested were not called for the reason(s)
given: Moreta requested witness testimony of Edwards, Tony (51390054) and Carr, Sean (50514-054) to testify to when they received their
incident reports and when it was dealt with.
For the reasons exhaustively explicated in section III, B, when other
inmate(s) allegedly received their incident report and were “dealt
with”, would not alone exculpate Moreta. It is not germane to the
issue at hand before the hearing officer, and is completely outside the
issues presented in the charge. The hearing officer is not oblivious to
the constitutional protections with that of due process. However, as
any testimony presented by Carr and Edwards would be nonexculpatory, their testimony was excluded.
(Id.)
In finding that the act was committed as charged, the DHO relied on
significant documentary evidence including, inter alia, Truview call reports, email
lists, money receipts, Trufone monitored call reports, Trulincs message body
reports and locked messages, and the Inmate Investigative report. (Id. at 24). The
DHO specifically relied on the eyewitness account of the reporting officer detailed
in the incident report. (Id. at 25). He also relied on the following investigative
findings:
[B]eginning on/or about October 16, 2013, Moreta’s ITS and
TRULINCS account was utilized by Edwards to orchestrated [sic] an
illicit narcotics introduction scheme; TRUVIEW Call Detail Report
for Moreta, Pedrito 60511-066, confirming a telephone call was
placed on his ITS account on October 16, 2013 at 7:23 AM to
telephone number 770-286-0450; TRULINCS Message Body Report
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from [e-mail] dated for October
16, 2013 to Moreta, Pedrito Santiago 60511-066 which comports with
the facts as presented in the incident report; TRUVIEW Email List
Detail Report for Edwards, Tony 51390-054, which confirms email
address [e-mail] is an email
address on his account; TRUVIEW Email List Detail Report for
Strong, Tito 26829-050, which confirms the email address
[e-mail] belongs to Shavon
Thomas; TRUIVEW [sic] Email List for Moreta, Pedrito 60511-066,
which
confirms
email
address
[e-mail] is an email address on his
account created on September 14, 2013; TRUVIEW Visitor List
Detail Report for Edwards, Tony 51390-054, which confirms Shavon
Thomas, telephone number 770-26-0450, is an approved visitor;
TRUVIEW Money Received Report for Edwards, Tony 51390-054,
confirming Shavon Thomas’ telephone number is 770-286-0450;
TRULINCS Locked Messages by ECN Report for Moreta, Pedrito
Santiago,
60511-066
for
the
email
address
[e-mail],
confirming
2,951
messages to said email address; as well as the fact Moreta failed to
present any statement or evidence which would exculpate him of the
charge.
After a rigorous review of all investigative findings the DHO opines
there is substantial evidence to sustain the charge.
(Id. at 26). Moreta was sanctioned with the disallowance of Good Conduct Time,
forfeiture of Good Conduct Time, disciplinary segregation, and loss of privileges.
(Id. at 27). With regard to the disallowance and forfeiture of Good Conduct Time
and disciplinary segregation sanctions, the DHO stated that their imposition “was
to demonstrate the seriousness of his actions and as punishment for his conduct.”
(Id.)

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II.

DISCUSSION
Moreta’s claim, that his due process rights were violated in the context of

the disciplinary hearing process, and that these violations resulted in a loss of good
conduct time, is properly the subject of this habeas petition because it directly
impacts the duration of his confinement. The Due Process Clause of the Fifth
Amendment of the Constitution of the United States provides: “No person shall . . .
be deprived of life, liberty, or property, without due process of law.” U.S. CONST.
amend. V. Federal inmates possess a liberty interest in good conduct time. See
Wolff v. McDonnell, 418 U.S. 539, 555-57 (1974); Young v. Kann, 926 F.2d 1396,
1399 (3d Cir. 1991).
When a prison disciplinary hearing may result in the loss of good conduct
time credits, due process requires that the prisoner receive due process protections:
1) written notice of the claimed violation at least twenty-four (24) hours in advance
of the hearing; 2) the opportunity to call witnesses and present documentary
evidence when consistent with institutional and correctional goals; 3) assistance in
presenting a defense if the inmate is illiterate; 4) an impartial tribunal; and 5) a
written statement by the factfinder as to evidence relied on and reasons for the
disciplinary action. See Wolff, 418 U.S. at 564.
Moreta first contends that he did not receive adequate notice of the charges
in accordance with BOP Program Statement 5270.09 which states “Incident Report
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is to be delivered within 24 hours of staff becoming aware of the incident.” (Doc.
1, p. 7). He argues that “the incident report was known to staff 28 days prior to the
date he was given his incident report, (And thus invalidate[s] the incident report) as
P.S. 5270.09 was violated when incident report was not provided within B.O.P.
policy time frame.” (Id. at p. 8).
The Respondent cites to 28 C.F.R. § 541.5, which requires when BOP staff
“witness or reasonably believe” that an inmate has committed a prohibited act, an
incident report will be prepared and referred for investigation. (Doc. 8, p. 8). Also
cited is 28 C.F.R. § 541.8(c) which requires that an inmate be provided written
notice no less than 24 hours before the DHO hearing. Wolff simply requires that
an inmate receive written notice of the claimed violation at least 24 hours in
advance of the disciplinary hearing. Wolff, 418 U.S. at 564. It is undisputed that
Moreta received notice of the incident report on May 21, 2014, and that the hearing
commenced on June 5, 2014. Hence, Moreta is not entitled to relief on this
ground.
He also challenges the DHO’s decision not to allow him to call witness Tony
Edwards. (Doc. 1, p. 8). It is his position that this interfered with his ability to
defend against the charges. (Id.) The BOP contends that Edwards’s testimony was
“appropriately excluded” because his testimony would not provide relevant
information relative to a determination of guilt. (Doc. 8, p. 13).
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Prison officials have broad discretion in administering a disciplinary
hearing. See Young v. Kann, 926 F.2d 1396, 1400 (3d Cir.1991). Inmates do not
have an “unqualified right to call witnesses.” Wolff, 418 U.S. at 566. “A prisoner
facing charges that may result in a loss of good-time credits has a due process right
to call witnesses at a disciplinary hearing [only] ‘when permitting him to do so will
not be unduly hazardous to institutional safety or correctional goals’.” Id. An
inmate is permitted to call a witness who will testify “‘in his defense,’ (i.e. produce
affirmatively supportive evidence) and not to confront or impeach [an adverse]
witness.” Owens v. Libhart, 729 F. Supp. 1510, 1513 (M.D.Pa. 1990); see also
Wolff, 418 U.S. at 567–68. There is no requirement, however, that an inmate be
afforded an opportunity to present witnesses ‘whose testimony would be irrelevant,
repetitive, or unnecessary.’ Pannell v. McBride, 306 F.3d 499, 503 (7th Cir. 2002);
see also 28 C.F.R. § 541.17(c) (providing that ‘the DHO need not call repetitive
witnesses’).” Moles v. Holt, 221 F. App’x. 92, 95 (3d Cir. 2007). Although not
prescribed, in instances where a witness is not called, it is deemed “useful for the
[DHO] to state its reason for refusing to call a witness, whether it be for
irrelevance, lack of necessity, or the hazards presented in individual cases.” Wolff,
418 U.S. at 566.
In the matter sub judice, the DHO indicated that Moreta’s witnesses were
not permitted to testify because their proffered testimony, “when they received
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their incident reports and when it [sic] was dealt with,” was deemed not germane to
the matters at issue and completely outside the charges set forth in the incident
report. (Doc. 8-1, p. 24). “[A]s any testimony presented by Carr and Edwards
would be non-exculpatory, their testimony was excluded.” (Id.) It is clear that the
testimony Moreta sought to introduce was irrelevant and unnecessary to the
disposition of the incident report charges. The DHO’s exclusion of the witnesses
was within his discretion and in full compliance with due process requirements.
Moreover, in this context, an inmate who challenges a prison disciplinary
hearing result based upon an alleged denial of his right to present evidence must
show some actual prejudice resulting from the prison’s exercise of discretion.
Pachtinger v. Grondolsky, 340 F.App’x 772, 777 (3d Cir. 2009) (denying habeas
petition when inmate failed to show prejudice resulting from absence of cellmate’s
testimony). Moreta argues that he “was attempting to defend by proving that the
incident report was known to staff 28 days prior to the date he was given his
incident report” and that “the basic tenants [sic] of fairness apply here.” (Doc. 1, p.
8). This is inapposite. Moreta cannot establish prejudice based on a DHO’s
decision to exclude testimony on a defense that was irrelevant to the charges
lodged against him.

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III.

CONCLUSION
Based on the foregoing, the petition for writ of habeas corpus will be denied.

A separate Order will enter.

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