APONTE v. BUREAU OF PRISONS et al

Filing 16

OPINION re 4 Petition for Writ of Habeas Corpus filed by JOSE DANIEL CRUZ APONTE. Signed by Magistrate Judge Maureen P. Kelly on 5/22/2012. (dgg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOSE DANIEL CRUZ APONTE,

)
)
Petitioner
)
)
vs.
)
)
BUREAU OF PRISONS, and ARCHIE
)
LONGLEY,
)
)
Respondents )

Civil Action No. 10-140E

Magistrate Judge Maureen P. Kelly

OPINION
Jose Daniel Cruz Aponte, (APetitioner@) is a federal prisoner currently confined in the
Federal Correctional Institution at McKean (“FCI-McKean”), which is located within this
judicial district. He is serving an aggregate sentence of 235 months imposed by the United
States District Court for the District of Puerto Rico as a consequence of him being convicted in
June, 1998, of various drug crimes.
Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241
(“the Petition”), challenging a disciplinary sanction imposed for his attack upon another inmate.
The sanction included the disallowance of 27 days of Good Conduct Time (“GCT”) which
necessarily impacts the amount of time Petitioner will serve in prison.

Petitioner=s sole claim is

that his procedural due process rights were violated in the course of the disciplinary proceedings
because the United States Bureau of Prisons (“BOP”) did not comply with certain time
requirements listed in the BOP’s regulations for conducting disciplinary proceedings.
The first problem with Petitioner’s argument is that the BOP regulations do not
necessarily define what procedures are required by the Fifth Amendment procedural due process
clause of the United States Constitution. Hence, a mere violation of the BOP regulations

regarding timing does not result in the denial of procedural due process under the Constitution.
Even if it were otherwise, Petitioner would still not prevail. Because this is a habeas petition
and Petitioner must establish that he is in custody in violation of the Constitution or laws of the
United States, and because Petitioner cannot show prejudice from any claimed procedural due
process violations occurring during the disciplinary proceedings given the overwhelming
evidence of his guilt, including a videotape capturing Petitioner’s striking of the fellow inmate,
Petitioner=s due process claims do not merit the grant of habeas relief.

The Petition will be

denied.
I. FACTS AND PROCEDURAL HISTORY
The facts are mostly taken from the Answer.
On March 29, 2009, Incident Report No. 1850596 was issued, charging Petitioner with
Assaulting Any Person in violation of Code 224. ECF No. 13-1. Incident Report No. 1850596
charged Petitioner with the following:
On 03-29-2009 at 7:30 pm I identified inmate Cruz-Aponte #14797-069 on the
CCTV as being involved in an assault on inmate (name and Register Number
withheld) by the hobby craft bathroom. Specifically, inmate Cruz-Aponte is seen
striking inmate (name withheld) buttocks area with his right foot. Inmate
Cruz-Aponte then helped force inmate (name withheld) into the bathroom where
he was assaulted by other inmates.
ECF No. 13-1 at 20. On March 30, 2009, the processing of Incident Report No. 1850596 was
suspended pending a referral to the United States Attorney’s Office for possible criminal
prosecution. Id., at 21. On April 2, 2009, the United States Attorney’s Office released the
Incident Report to FCI-McKean for internal disciplinary action, i.e., declined to criminally
prosecute Petitioner. Id., at 21.
On April 2, 2009, Incident Report No. 1850596 was delivered to Petitioner. Id., at 20.
2

Upon delivery of the Incident Report to Petitioner, an investigation was conducted. Petitioner
was advised of his right to remain silent during the disciplinary process. Id., at 21. After the
Incident Report was read to him, Petitioner indicated that he understood the charges against him,
and he stated, “I don’t know why they were fighting. I helped my brother. I just want to go to a
Pen.” Id., at p. 21. Petitioner did not request any witnesses. Id. At the conclusion of the
investigation, the Investigating Lieutenant referred the Incident Report to the Unit Discipline
Committee (“UDC”) for an initial hearing. Id.
On April 3, 2009, the UDC convened for an initial hearing. At the conclusion of the
hearing, the UDC referred Incident Report No. 1850596 to the Disciplinary Hearing Officer
(“DHO”) for final disposition. The UDC recommended that if Petitioner was found to have
violated Code 224, that he should be sanctioned by: disallowance of GCT, disciplinary
segregation (“DS”), and disciplinary transfer.
After the initial hearing, Petitioner was advised of his rights at the DHO Hearing. ECF
No. 13-1 at 23. Petitioner waived his right to a staff representative and to witnesses at the DHO
Hearing. ECF No. 13-1 at 25.
On April 9, 2009, the DHO hearing for Incident Report No. 1850596 was held at
FCI-McKean. ECF No. 13-1 at 27 to 29. Petitioner was advised of his rights before the DHO.
He declined to make any statement to the DHO. Id., at 27. The DHO noted that in addition to
the Incident Report and Petitioner’s oral statement, he also considered a videotape of the
incident. Id., at 28. At the conclusion of the hearing, the DHO determined that Petitioner
committed the prohibited act of assault in violation of Code 224. In reaching its decision, the
DHO relied upon the written statement of the reporting staff member indicating that on March

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29, 2009, at about 7:20 p.m., Petitioner was identified on closed circuit television as being part
of an assault on another inmate outside of the hobby craft restroom. Petitioner was observed
striking the other inmate in the buttocks area with his right foot. He then helped force the inmate
into the restroom where he was assaulted by other inmates. The DHO noted that during the DHO
hearing, Petitioner declined to make any statement. The DHO indicated that his decision was
also based upon a videotape of the incident showing Petitioner kick the other inmate. Id.
After determining that Petitioner violated Code 224, the DHO imposed the following
sanctions: disallow 27 days GCT, 30 days of disciplinary segregation, and recommend
disciplinary transfer. Id., at 28.
On April 21, 2009, the DHO delivered the DHO report to Petitioner and advised
Petitioner of his appeal rights. Id., at 29. Petitioner challenged the disciplinary action taken in
connection with Incident Report No. 1850596 through the BOP Administrative Remedy Process
and was denied at both levels of administrative review. ECF No. 13-1 at 9 to 12.
Petitioner then initiated the current action in June, 2010. The Petition was formally
docketed along with a Memorandum of Law in Support. ECF Nos. 4, 5. The Answer was not
filed until November 9, 2010. ECF No. 13. Petitioner then filed a Reply to the Answer. ECF
No. 14.
The case was reassigned to the undersigned in June, 2011. ECF No. 15. All the parties
have consented to have the Magistrate Judge exercise plenary jurisdiction. ECF Nos. 7, 9.

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II.

DISCUSSION
Petitioner raises only one issue in the Petition. He claims that “Petitioner’s fifth

Amendment Right To Due [Process] Was violated During The Bureau of Prisons Disciplinary”
proceedings. ECF No. 4 at 5. The sole factual basis for this claim appears to be Petitioner’s
contention that the BOP authorities failed to comply with their own internal rules governing the
time limits for providing a prisoner a written copy of the disciplinary charges against him. ECF
No. 5 at 4. Petitioner cites to 28 C.F.R. § 541.15(a) as the provision which the BOP authorities
failed to comply with. ECF No. 5 at 4. Petitioner quotes that section as providing that “Staff
shall give each inmate charged with a violation of Bureau rules a written copy of the charge(s)
against the inmate, ordinarily within 24 hours of the time staff became aware of the incident.”
ECF No. 5 at 4.1 More specifically, Petitioner complains that rather than receiving his
disciplinary incident report within 24 hours, he did not receive the report until more than 29
hours after the incident occurred. ECF No. 5 at 4 (“The code 224 (minor assault) violation is
alleged to have happened on 3/29/2009, and staff became aware of the incident at 7:20 p.m. on
3/29/2009. A disciplinary report was not written until 3/30/2009 and delivered to petitioner at
1:01 a.m., more than 29 hours later.”).

Petitioner also notes that “no good cause” was given for

1

Apparently, since the time Petitioner was charged with the disciplinary infraction in 2009, the
relevant section of the CFR has been amended and now reads as follows:
(a)Incident report. The discipline process starts when staff witness or reasonably believe
that you committed a prohibited act. A staff member will issue you an incident report
describing the incident and the prohibited act(s) you are charged with committing. You
will ordinarily receive the incident report within 24 hours of staff becoming aware of your
involvement in the incident.
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this delay of roughly 5 hours. ECF No. 5 at 4 to 5.
Petitioner, in his Reply also seems to complain of another delay, namely the alleged
delay between the time the staff became aware of the incident and the time a hearing must be
held before the UDC, which is three days. Petitioner does not specifically state how long the
delay was regarding the holding of the UDC hearing. ECF No. 14 at 2 to 3.
Petitioner then makes a leap from the violation of the BOP rules regarding time limits,
which are found in the United States Code of Federal Regulations (“CFR”), to asserting that such
violations of the rules, in and of themselves, also violate Petitioner’s procedural due process
rights. See id.
As relief, Petitioner seeks to have the DHO’s decision reversed and his GCT restored and
the incident report expunged. ECF No. 5 at 6.
The delay(s) were explained by the fact that the Incident Report was suspended pending
referral for possible criminal prosecution by the United States Attorney who declined to
prosecute. ECF No. 13-1 at 21. This suspension was explained to Petitioner by the National
Inmate Appeals Administrator in response to Petitioner’s appeal. Specifically, Petitioner was
informed that:
Your incident report was suspended pending a referral to the FBI for
possible prosecution. Policy permits the suspension of an incident report for
referral to other law enforcement agencies. Although you experienced delay in
the disciplinary process, we do not find, nor did you provide any evidence that
your ability to prepare a defense was hindered. Furthermore, as indicated by the
Regional Director, the one day delay does not warrant expunction.
ECF No. 5 at 16.
A.

PROCEDURAL DUE PROCESS

28 C.F.R. §541.5 (a).
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Procedural due process in the context of a prison disciplinary proceeding, where liberty
interests are deprived/or disallowed,2 require only those protections announced in Wolff v.
McDonnell, 418 U.S. 539, 558 (1974). See, e.g., Piggie v. Cotton, 342 F.3d 660, 662 (7th Cir.
2003)(AIn the prison disciplinary context, due process requires only that the prisoner receive
advance written notice of the charges, see Wolff, 418 U.S. at 564, 94 S.Ct. 2963, an opportunity
to present testimony and documentary evidence to an impartial decision-maker, id. at 566,
570-71, 94 S.Ct. 2963, and a written explanation for the discipline, id. at 564, 94 S.Ct. 2963");
McCoy v. Lockhart, 5 F.3d 532 (Table), 1993 WL 361869, at *2 (8th Cir. 1993) (AIn the prison
disciplinary context, due process requires only that the inmate be afforded the procedures set
forth in Wolff, 418 U.S. at 563-72"). We note that Petitioner is attempting to constitutionalize
the procedural provisions of the CFR regarding prison disciplinary proceedings, equating those
procedures required by the CFR with the procedures required by the United States Constitution.
However, we reject his attempt to do so. See, e.g., Harris v. Rios, Civ.A. No. 7:08-CV-32, 2009
WL 1458205, at *6 (E.D.Ky., May 26, 2009) (ATo the extent Harris challenges the disciplinary
conviction based upon the . . . UDC chairperson's failure to hold a hearing within the time
required by BOP regulations, it is well established that the requirements of Due Process are
defined by the United States Constitution, not by an agency's internal regulations or guidelines.
Sandin v. Conner, 515 U.S. 472, 485, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Accordingly, an
agency's failure to adhere to its own guidelines does not state a Due Process claim.@); Donaldson

2

We assume, without deciding, that the disallowance of good conduct time not yet earned
and/or not yet vested (as opposed to the taking away of good conduct time which is already
earned/vested), results in the deprivation of a liberty interest triggering the requirements of
procedural due process.
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v. Samuels, No. 4:CV-07-1072, 2007 WL 3493654, at *(M.D.Pa., Nov. 13, 2007)(where 28
C.F.R. ' 541.15(b), providing for a 3 day time limit for UDC hearing to be held was violated, the
Court held: Athe Court finds that the delay in Petitioner's initial hearing does not automatically
equate to a violation of his Due Process rights. See Flanagan v. Shively, 783 F.Supp. 922, 931
(M.D.Pa. 1992) (>The Constitution does not require strict adherence to administrative regulations
and guidelines.=)[.] The Constitution only requires compliance with minimal federal due process
standards. Id. Wolff does not set a three--or seven-day limit, or any time limit, for the hearing. No
Due Process violation occurred by holding petitioner's initial hearing outside of the >ordinary=
three-day period.@).
Indeed, the United States Court of Appeals for the Third Circuit Court has rejected the
constitutionalizing of every procedural requirement contained in the CFR which is applicable to
prison disciplinary hearings and has specifically addressed the time limits contained in the CFR.
See, e.g., Barner v. Williamson, 233 F.App’x 197, 199 n.5 (3d Cir. 2007) (AMoreover, while
Barnes would have a liberty interest in the good time credits, Barnes has not shown that the
regulation [i.e., 28 C.F.R. ' 541.15(a)] specifying the time at which a person must be notified of
the charge either itself creates a liberty or property interest, or that its violation necessarily
abridges the constitutional protections established in Wolff.@).
In this case, we find that the BOP regulations were not violated as they permit some
period of delay for the purposes of referring matters to other law enforcement agencies. See, e.g.,
Scott v. Craig, No. 9:05-CV-1359, 2008 WL 4866051 at * 4 to *5 (N.D.N.Y. Nov. 7, 2008)
(“Moreover, the regulations specifically require that the BOP investigation be suspended where,
as here, ‘it appears likely that the incident may be the subject of criminal prosecution.’ 28 C.F.R.

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§ 541.14(b)(1). In such cases, the regulation provides that ‘the investigating officer shall suspend
the investigation, and staff may not question the inmate until the Federal Bureau of Investigation
or other investigative agency interviews have been completed or until the agency responsible for
the criminal investigation advises that staff questioning may occur.’ Id. As such, the
suspension of the investigation by the BOP in this case pending the completion of the FBI's
review was entirely consistent with the applicable regulations and Petitioner has not established
any colorable due process claim based upon that delay.”). However, even if the BOP
regulations were violated, we are not convinced that mere violations of the CFR necessarily
amount to violations of procedural due process.3
In the alternative, even if the CFR defined the Constitutional requirements of procedural
due process, we would still find Petitioner=s procedural due process claims fail.

Petitioner

cannot make out a successful procedural due process claim, even accepting his claims as true,
because, as the Respondents point out, Petitioner cannot establish prejudice due to these alleged
procedural violations as is his burden. ECF No. 13 at 7.
In order to make out a successful habeas claim for violation of procedural due process, a
habeas petitioner must show that the procedural errors that occurred during the disciplinary

3

The parties do not address and it is not clear to this Court what the remedy for a mere violation
of the BOP’s regulations during the course of prison disciplinary proceedings would be (perhaps,
an order from the BOP appellate authorities to remand for a hearing that comports with the
regulations), but as discussed below, what is clear is that absent the showing of prejudice from
the violation, there is no remedy available in habeas. Harvey v. Wilson, No.6:10-CV-235GRVT, 2011 WL 1740141, at *8 (E.D.Ky. May 5, 2011) (“Even though, 28 C.F.R. § 541.17(g)
requires the DHO to ordinarily give the inmate a written copy of the decision and disposition
within ten days of the DHO decision, if a prisoner does not receive the DHO report within ten
days of the decision, the prisoner is not entitled to habeas relief, so long as the delay had no
prejudicial effect on the prisoner's administrative remedies.”) (citing, inter alia, Cook v. Warden,
Fort Dix, 241 F.App'x 828, 829 (3d Cir. 2007)).
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process which resulted in the loss or a liberty or property interest, prejudiced him or her, i.e., had
an adverse effect on the outcome of the proceedings. As the United States Court of Appeals for
the Third Circuit explained:
In the absence of a recent pattern of violations, it is entirely
inappropriate to overturn the outcome of a prison disciplinary
proceeding because of a procedural error without making the
normal appellate assessment as to whether the error was harmless
or prejudicial. If a person may be convicted and obliged to serve a
substantial prison sentence notwithstanding a constitutional error
determined to be harmless, see Arizona v. Fulminante, 499 U.S.
279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); Chapman v.
California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967),
surely the conditions of confinement of a sentenced prisoner may
be made temporarily more severe as discipline for a prison rules
infraction despite a harmless error in adjudicating the violation.
Elkin v. Fauver, 969 F.2d 48, 53 (3d Cir. 1992) (quoting Powell v. Coughlin, 953 F.2d 744, 750
(2d Cir. 1991)). Accord Cook v. Warden, Fort Dix, 241 F.App'x 828, 829 (3d Cir. 2007)
(“Finally, we agree with the District Court that, even if Cook did not receive the DHO's written
report within 10 days, pursuant to 28 C.F.R. § 541.17(g), the delay had no prejudicial effect on
Cook's administrative appeal and thus does not provide a basis for habeas relief.”).
Moreover, it is the burden of the habeas petitioner to show prejudice and prejudice in this
context means that the outcome would have been different had the procedural errors not
occurred. Clark v. Dannheim, 590 F.Supp.2d 426, 429 (W.D.N.Y. 2008)(ATo establish a
procedural due process claim in connection with a prison disciplinary hearing, an inmate must
show that he was prejudiced by the alleged procedural errors, in the sense that the errors affected
the outcome of the hearing.@)(emphasis added). See also Grossman v. Bruce, 447 F.3d 801, 805
(10th Cir. 2006) (Aa prisoner cannot maintain a due process claim for failure to permit witness

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testimony if he fails to show that the testimony would have affected the outcome of his case@)
(internal quotation marks omitted); Moles v. Holt, 221 F.App’x 92, 95-96 (3d Cir. 2007)
(AFinally, Moles alleges that prison officials did not conduct a thorough investigation into the
allegations raised by the incident report, as required by 28 C.F.R. ' 541.14(b)(2). He argues that
a proper investigation, in accordance with BOP policies, would have required prison officials to
identify and question additional witnesses, and those witnesses would have given exculpatory
statements. We note that a failure to conduct a prompt and thorough investigation prior to a
disciplinary hearing does not rise to the level of a due process violation. Moreover, Moles has
failed to show that the alleged oversight caused him prejudice.@)(footnote and some citations
omitted, emphasis added).
Instantly, in light of the overwhelming evidence of Petitioner=s guilt, including the video
evidence catching him in the act, Petitioner cannot carry his burden to show prejudice.4

4

We readily acknowledge that the rule, which requires a habeas petitioner to show prejudice in
order to obtain relief in habeas, is not the rule in civil rights cases. See, e.g., Hearne v. Board of
Educ. of City of Chicago, 185 F.3d 770, 779B780 (7th Cir. 1999) (in a civil rights action, the
Court stated that “[a] person challenging the adequacy of procedures does not have the burden of
showing that the outcome would certainly have been different had the proper procedures been
followed.”). We believe that the reason for this dichotomy between habeas cases and civil
rights cases arises out of the very nature of habeas corpus proceedings. The raison d’etre of
habeas corpus is release from unconstitutional or unlawful confinement. Thus, the sine qua non
of obtaining relief by a habeas petitioner in federal court is to show that his or her confinement
violates federal law. Accordingly, if the procedures utilized in the tribunal that imposed
confinement/custody on the petitioner were erroneous or violated due process but the outcome
was nevertheless accurate, then there is no unconstitutional confinement. In other words, even
if the procedures used were wrong or illegal or violative of federal law, absent a showing of
prejudice, i.e., absent a showing that the outcome would have been different had the procedural
violations not occurred, the custody stemming from those flawed proceedings is not illegal. See
Carey v. Piphus, 435 U.S. 247, 259 (1978) (“Procedural due process rules are meant to protect
persons not from the deprivation, but from the mistaken or unjustified deprivation of life,
liberty, or property”) (emphasis added). If the deprivation of liberty as a result of the flawed
procedures is not mistaken, then the deprivation of liberty, i.e., the resulting custody from those
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III. CONCLUSION
Hence, because Petitioner has not established a violation of the BOP’s regulations, he is
not entitled to relief given that the regulations permit a delay in order to refer matters to outside
agencies. Even if he had established a violation of BOP’s regulations, such would not amount
to a violation of his procedural due process rights under the facts of this case. Alternatively,
even if he had established a violation of his procedural due process rights, because on the record
before this Court, Petitioner cannot carry his burden to show prejudice stemming from any
alleged deprivation of procedural due process, the Petition is hereby DISMISSED.5

BY THE COURT,
s/Maureen P. Kelly
MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE
Dated: May 22, 2012
cc:

JOSE DANIEL CRUZ APONTE
14797-069
FCI-McKEAN
PO BOX 8000
BRADFORD, PA 16701
All Counsel of Record via CM-ECF

flawed procedures is not illegal.
5

Federal prisoner appeals from the denial of a ' 2241 habeas corpus proceeding are not
governed by the certificate of appealability requirement. United States v. Cepero, 224 F.3d 256,
264-65 (3d Cir. 2000); 28 U.S.C. ' 2253(c)(1)(B). Hence, no determination is made in this
respect.
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