Cipriano v. Federal Bureau of Prisons

Filing 8

ORDER adopting 7 Report and Recommendations amd denying 1 PETITION for Writ of Habeas Corpus filed by Norman Cipriano. So Ordered by Chief Judge William E. Smith on 1/12/2018. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
Petitioner,
)
)
v.
)
)
FEDERAL BUREAU OF PRISONS,
)
)
Respondent.
)
___________________________________)
NORMAN CIPRIANO,

C.A. No. 17-377 WES

ORDER
WILLIAM E. SMITH, Chief Judge.
On December 6, 2017, Magistrate Judge Patricia A. Sullivan
filed a Report and Recommendation (“R&R”) (ECF No. 7) recommending
that Norman

Cipriano’s

Petition

for

a

Writ

of

Habeas

Corpus

pursuant to 28 U.S.C. § 2241 (“Petition”) (ECF No. 1) be denied.
Having closely reviewed the R&R and the relevant papers, and having
heard no objections, the Court ACCEPTS the R&R (ECF No. 7) and
adopts

its

recommendations

and

Petition (ECF No. 1) is DENIED.
IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: January 12, 2018

reasoning.

Accordingly,

the

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

NORMAN CIPRIANO,
Petitioner,
v.
FEDERAL BUREAU OF PRISONS,
Respondent.

:
:
:
:
:
:
:

C.A. No. 17-377WES

REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, United States Magistrate Judge.
This matter is before the Court on the Petition for a Writ of Habeas Corpus, pursuant to
28 U.S.C. § 2241, brought by Petitioner Norman Cipriano (ECF No. 1). In 2014, Petitioner was
sentenced by this Court to fifty months’ imprisonment, followed by three years of supervised
release. During 2015 and 2016, he was assigned to a Federal Correctional Institution (“FCI”) in
Berlin, New Hampshire, where he was housed in a minimum security dormitory. Currently,
Petitioner remains in the custody of Respondent Federal Bureau of Prisons (“BOP”), residing at
the Houston House, a residential re-entry facility located in Rhode Island. The petition alleges
that Petitioner was denied the due process required by the Fifth Amendment of the United States
Constitution in connection with discipline imposed on him by BOP while he was at FCI Berlin,
resulting in the loss of forty-one days’ good conduct time.
Having exhausted all available appeal rights, Petitioner initiated this action on August 6,
2017. His petition asks the Court to conduct an expeditious hearing, to expunge the Incident
Report underlying the discipline from his record and to restore the lost good conduct time. In
compliance with the Court’s order, Respondent filed its reply to the petition on September 29,
2017. The petition and reply have been referred to me. Having thoroughly reviewed them,

together with all of the attached written material, including the Incident Report and the
Discipline Hearing Officer (“DHO”) Report, and mindful of the need to resolve the matter with
all due speed, 1 I find that BOP’s discipline procedures were consistent with the requirements of
the Fifth Amendment’s Due Process clause. Specifically, I find that:
(1) Petitioner received advance written notice of the violation that was adequate for due
process purposes;
(2) Petitioner was afforded an opportunity to call witnesses and present evidence, but
declined to do so; and
(3) Petitioner was provided a detailed and specific written statement describing the
evidence considered and the reasons for imposing discipline.
Further, I find that the DHO decision was supported by considerably more than the
constitutionally-required “some evidence,” even if evidence to which he claims he was denied
access is disregarded. Based on these findings, I recommend that the petition be denied.
I.

BACKGROUND 2
On the evening of March 22, 2016, a woman called the FCI Berlin control center, and

identified herself as Petitioner’s wife, Jamie Cipriano. This female caller explained that she was
in the midst of divorcing Petitioner, and complained that he was texting her and sending her
photographs. She said he was texting her at the same time that she was speaking to the control
center but then stopped while she was still on the line. She provided her own phone number,
which corresponded to the number Petitioner had supplied to FCI Berlin as the contact for his

1

Apparently, Petitioner’s sentence may end as early as February 2, 2018.

2

The background is drawn from the petition (ECF No. 1) and the reply (ECF No. 5), together with the attachments
to each. Principal reliance is placed on the DHO Report (ECF No. 1-1 at 1-3; ECF No. 5-1 at 1-3) and on the
Petitioner’s Reasons for Appeal and the Acting Regional Director Response (ECF No. 1-1 at 8-13; ECF No. 5-2)
which are attached to both the petition and the reply. The Court has also considered the Incident Report, referenced
in the petition and attached to the reply (ECF No. 5-1 at 4-6), and two forms – the “Inmate Rights at Discipline
Hearing” and “Notice of Disciplinary Hearing” – both of which were signed by Petitioner and are attached to the
reply (ECF No. 5-1 at 17-18).

2

wife, as well as the number from which the texts had been coming. See generally ECF No. 1-1
at 1-3.
Within minutes, correctional officers were dispatched to search Petitioner and his bunk
area. When they arrived, they told Petitioner that his “ex-wife” had called and said he was
texting her; Petitioner denied he had an “ex-wife” and denied that he had a phone. The search
resulted in the discovery of a cell phone hidden on the underside of the desk in the cubicle
occupied by Petitioner and one other prisoner. Petitioner denied that the phone was his, and
stated (falsely) that he had just moved to that area of the dormitory; his cellmate also denied
ownership of the phone. The officers photographed and seized the phone. See generally ECF
No. 1-1 at 1-3.
BOP sent the phone to its forensic lab for analysis, and turned the matter over to the
Office of the United States Attorney, Department of Justice (“DOJ”), for possible criminal
prosecution. Pending the outcome of this referral, BOP’s Incident Report was suspended. ECF
No. 1-1 at 2. One month later, on April 21, 2016, the DOJ reported that it would not prosecute
Petitioner. ECF No. 5-1 at 15-16. The next day, the BOP received the forensic lab report, which
corroborated that the number of the cell phone was the same as that reported by the female caller.
Meanwhile, BOP officials confirmed that Petitioner had lied when he said he had just moved to
the cubicle where the phone was found; in fact, he had been there for several months. In
addition, when questioned further, Petitioner admitted that he and his wife were in the midst of a
divorce and that he believed she had called “to get him in trouble so she could win their
divorce.” ECF No. 5-1 at 5.
Based on these facts, on the next day (April 22, 2016), Petitioner was charged with
Possession of a Hazardous Tool, in violation of Code 108 of the Prohibited Acts Code, 28 C.F.R.

3

§ 541.3, which classifies hazardous tools as those most likely to be used in an escape attempt.
Petitioner was given a copy of the BOP Incident Report the same day, was advised of his right to
remain silent and given an opportunity to make a statement. ECF No. 5-1 at 4-6. On April 27,
2016, Petitioner appeared before a Unit Discipline Committee where he stated that the cell phone
was not his and he had been set up. ECF No. 5-1 at 4. The Committee determined that the
charges were founded and referred the matter to hearing before a DHO. Also on April 27, 2017,
Petitioner signed two forms confirming that he had been advised of his rights at the DHO
hearing, including the right to have a staff representative, to call witnesses and to present
documentary evidence. ECF No. 5-1 at 17-18. One form advised that, subject to institutional
safety, if he identified any witnesses, the DHO would call them and, for any that were
unavailable, DHO would try to procure written statements from them. Petitioner indicated he did
not wish to call any witnesses and signed both forms. See ECF No. 5-1 at 17-18. The DHO
hearing was held nine days later, on May 6, 2016.
Both Petitioner and Respondent have presented the Court with copies of the detailed
DHO Report (ECF No. 1-1; ECF No. 5-1) of the May 6, 2016, proceeding. The DHO Report
confirms that Petitioner waived his right to be accompanied by a staff representative and did not
request that any witnesses be called. In the introduction to the Report, the DHO explained that
Petitioner did not receive the Incident Report within twenty-four hours “as established by
policy” 3 because of the referral for possible prosecution. ECF No. 1-1 at 2. The DHO Report

3

The Court assumes that the policy to which the parties are referring is embodied in the following regulation:
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.

4

concludes that this delay did not cause “any undue hardship in your ability to defend yourself,”
pointing out that Petitioner did not raise “any procedural issue, request witnesses, or present
written documentation as evidence.” Id.
The summary of the evidence in the DHO Report indicates that Petitioner identified his
wife as Jamie Cipriano and provided her phone number – the same number provided by the
female caller, which was the same as the one on file with the BOP office. During the hearing,
the DHO reviewed the officers’ reports regarding the phone call from the female caller, as well
as the photographs of the phone and reports about the search of the common area around
Petitioner’s bunk. The Report itemizes the evidence considered, including Petitioner’s false
statement about having just moved into the area and his misleading statement that he did not
have an “ex-wife.” It indicates that the DHO and Petitioner both reviewed the report from the
forensic lab, which corroborated the information from the female caller about the source of the
texts. In response to viewing the forensic lab report, Petitioner is quoted in the DHO Report as
saying, “Oh, I didn’t know she contacted you recently, I thought it was a while ago.” The DHO
Report specifically references Petitioner’s description of the area where the phone was located as
a “common area.”
“[B]ased on the greater weight of evidence,” the DHO found that Petitioner committed
the prohibited act. ECF No. 5-1 at 3. Finding that the offense was of the “greatest” severity, the
DHO imposed on Petitioner the sanctions of sixty days of disciplinary segregation, three months
without commissary privileges, six months without phone privileges and the revocation of fortyone days of good conduct time. ECF No. 1-1 at 3.

28 C.F.R. § 541.5(a) (2013); see Heavner v. Harmon, No. 3:17-CV-217-M-BN, 2017 WL 1907440, at *2 (N.D. Tex.
Apr. 17, 2017), adopted, No. 3:17-CV-217-M, 2017 WL 1906797 (N.D. Tex. May 8, 2017); Rosa v. Grondolsky,
No. CIV.A. 13-10496-JGD, 2013 WL 3491077, at *7 (D. Mass. July 9, 2013).

5

Petitioner appealed the adverse decision to the next administrative level, the Acting
Regional Director. His appeal asserted that his wife had served him with divorce papers and was
calling the prison to make false accusations. ECF No. 1-1 at 8. He also complained that he did
not receive the Incident Report within twenty-four hours of the incident, and that he had not been
shown the forensic lab report. Id. On June 22, 2016, the Acting Regional Director issued a
written decision, denying the appeal and upholding the sanctions. ECF No. 1-1 at 10-11.
Regarding the delayed Incident Report, the Acting Regional Director wrote:
Your contention your due process rights were violated because you did not
receive a copy of the incident report within 24 hours is without merit. The record
shows the incident report was suspended due to the incident report being referred
to FBI/AUSA for criminal prosecution. You received a copy of the incident
report within 24 hours of it being released for administrative processing. The
DHO adequately documented the delay, and found that it did not impede your
ability to adequately represent yourself.
Id. at 10. The Acting Regional Director found that the demands of due process had been
satisfied, and that the BOP substantially complied with prison policy. Id. at 11. Petitioner’s next
appeal was to the BOP’s general counsel, which was also denied.
In the petition, Petitioner repeats his central defense that the phone was not his and that it
was found in a common area; he claims that he was framed by “another inmate to have Petitioner
removed from this prison.” ECF No. 1 at 6. He reiterates his allegation that he did not receive
the Incident Report until thirty days after the search for the phone, in contravention of BOP
policy. With no indication who are the inmates who might have testified but for the delay, he
argues that this delay was highly prejudicial to him “due to inmates that could have testified to
the phone belonging to another inmate went home or got transferred to another institution.” Id.
at 7-8. He also asserts that he was not allowed to review the forensic lab report. Id. at 7. And,
contrary to his statements to BOP officials, to the DHO, and on appeal to the Acting Regional

6

Director from the DHO decision, he now contends that the DHO refused to contact his wife
during the prison disciplinary process. With no factual support for the assertion, he now claims
that she “would have verified that she did not make call to the prison nor did she receive texts,
calls, or pictures from Petitioner.” Id. at 6. In his request for relief, Petitioner asks for an
expeditious hearing and seeks to have the Incident Report expunged from his record and the
forty-one days of good conduct time reinstated.
II.

APPLICABLE LAW
Since the Supreme Court’s 1974 decision in Wolff v. McDonnell, 418 U.S. 539, 558

(1974), it has been broadly accepted in this Circuit that prison inmates have a constitutionallyprotected liberty interest in good time credits. Francis v. Maloney, 798 F.3d 33, 36-37 (1st Cir.
2015); 4 Ned v. Tatum, 15-cv-178-LM, 2017 WL 3822736, at *3 (D.N.H. May 16, 2017),
adopted, 2017 WL 3772656 (D.N.H. Aug. 29, 2017) (citing Superintendent, Mass. Corr. Inst.,
Walpole v. Hill, 472 U.S. 445, 453 (1985), and Lother v. Vose, 89 F.3d 823, 1996 WL 345958,
at *1 (1st Cir. June 25, 1996) (per curiam) (unpublished table decision)); see Mendez v. Martin,
C.A. No. 15-408ML, 2016 WL 2849598, at *8 n.14 (D.R.I. Apr. 19, 2016) (in dismissing § 2241
petition for refiling in Pennsylvania, court notes open issue whether accumulation of good time
credits gives rise to constitutionally-protected liberty interest). Cases assuming that prison
inmates have a liberty interest in good time credits hold that the Fifth Amendment’s Due Process
clause protects that interest by requiring:
Where a prison disciplinary hearing may result in the loss of good time credits . . .
the inmate must receive: (1) advance written notice of the disciplinary charges;
(2) an opportunity, when consistent with institutional safety and correctional
goals, to call witnesses and present documentary evidence in his defense; and (3)
a written statement by the factfinder of the evidence relied on and the reasons for
the disciplinary action.
4

Francis establishes that, in this Circuit, the inconsistent dicta in Pepper v. United States, 562 U.S. 476, 501 n.14
(2011), should not be interpreted as abrogating Wolff. 798 F.3d at 36-37.

7

Hill, 472 U.S. at 454 (citing Wolff, 418 U.S. at 563-67). These due process rights are often
referred to as the “Wolff requirements.” E.g., Brennan v. United States, 646 F. App’x. 662, 666
(10th Cir. 2016); Ned, 2017 WL 3822736, at *3.
The case law is well settled that this standard is “extremely limited.” Heavner v.
Harmon, No. 3:17-cv-217-M-BN, 2017 WL 1907440, at *2 (N.D. Tex. Apr. 17, 2017), adopted,
2017 WL 1906797 (N.D. Tex. May 8, 2017); see Pryor v. Grondolsky, 14-10181-LTS, 2015 WL
1268164, at *2 (D. Mass. Mar. 19, 2015) (“standard is not a demanding one”). “The limited
nature of habeas review does not empower a federal district court to perform a de novo review of
the merits of routine prison disciplinary determinations.” Id. Rather, judicial review must
ensure only “that federal constitutional guarantees of due process are observed in the
proceedings.” Id. The petition should be denied as long as “there is any evidence in the record
that could support the conclusion reached by the disciplinary board.” Ned, 2017 WL 3822736, at
*3 (emphasis in original); Pizarro Calderon v. Chavez, 327 F. Supp. 2d 131, 135 (D.P.R. 2004)
(petition denied if minimal due process standards met). This “some evidence” standard may be
satisfied with indirect or “meager” evidence, and the evidence may be susceptible to more than
one logical interpretation. Ned, 2017 WL 3822736, at *6. “All that is necessary is that ‘the
record is not so devoid of evidence that the findings of the disciplinary board were without
support or otherwise arbitrary.” Id.
With the Wolff requirements in mind, the Court next considers each of Petitioner’s three
grounds for relief and then evaluates BOP’s due process compliance in imposing discipline
resulting in the loss of good conduct time.

8

III.

ANALYSIS
A.

Ground One – Failure to Consider Evidence of Common Area and to Contact
Witness

In his first ground for seeking relief, Petitioner complains that the DHO wrongly
attributed to him the phone located near his cubicle despite its being found in a “common area,”
which he claims “every inmate in the unit had access to.” He argues that this should have led to
a finding that he was being set up by another inmate. He also alleges that he tried to induce the
DHO to contact his wife, who, he now claims, would have denied that she was the caller and that
she had received texts from Petitioner. Neither allegation comes close to establishing a due
process violation.
Petitioner’s assertion that he is entitled to habeas relief because the phone was found in a
common area amounts to a request that the Court sift through the same evidence weighed by the
DHO and perform an improper de novo review leading to a different result. That the location
where the phone was discovered was a “common area” is noted in the DHO Report, which
includes a specific description of the location and its proximity to Petitioner and his cellmate.
What matters for due process purposes is that the DHO linked this fact with other evidence, most
importantly the evidence regarding the female caller who claimed that she was Petitioner’s wife,
that they were divorcing and that Petitioner was texting her. This additional evidence is more
than sufficient to permit the inference that the phone found near Petitioner’s locker was
Petitioner’s, and did not belong to some other prisoner who also had access to the area. See Ned,
2017 WL 3822736, at *6-7 (no due process violation where no facts presented to permit
inference that it was equally likely that other persons with access to common area might have
hidden weapons found there). It is beyond the scope of habeas review for the Court to reweigh
the evidence concerning the phone’s location and reach a different conclusion. Pryor, 2015 WL
9

1268164, at *2; see Heavner, 2017 WL 1907440, at *2 (defense heard and rejected at hearing
cannot be basis for due process violation).
Petitioner’s belated complaint that the DHO did not contact Jamie Cipriano is equally
unavailing. Nine days before the DHO hearing, Petitioner was advised in writing that he could
ask the DHO to call witnesses for him, including that efforts would be made to get statements
from witnesses who were unavailable. In response, Petitioner signed the form indicating that he
did not request any witnesses. ECF No. 5-1 at 18. This decision is confirmed by the DHO
Report – it reiterates that Petitioner declined to request any witnesses, and it underscores his
decision when considering whether any hardship was caused by the delay in his receipt of the
Incident Report. ECF No. 1-1 at 1-2 (“[a]t no time during the DHO hearing did you . . . request
witnesses”). Also significant is that, during the DHO hearing and the first level of appeal from
the DHO hearing, Petitioner did not dispute that his wife made the call; rather, he argued that she
was motivated by animus arising from their divorce. For example, the DHO Report quotes
Petitioner as responding to the forensic lab report by saying that he had thought his wife’s call
had been “a while ago.” ECF No. 1-1 at 2. Petitioner’s appeal (in his handwriting) to the Acting
Regional Director makes no mention of the DHO’s refusal to call witnesses but rather argues that
“I was served divorce papers at the Camp on 9-6-15 and my wife had been calling the prison
making accusations.” ECF No. 1-1 at 8. Petitioner’s petition before this Court takes the
opposite tack – Ground Two is based on the newly-minted claim that his wife should have been
called as a witness because she would have denied that she called the prison and that she had
received texts from Petitioner.
The clarity of this record makes the Court’s work easy. The DHO did not refuse to call
witnesses; rather, Petitioner did not request any. See Figueroa v. Vose, 57 F.3d 1061, 1995 WL

10

352819, at *2 (1st Cir. June 13, 1995) (per curiam) (unpublished table decision) (“The transcript
of the disciplinary hearing shows that he never asked the board to call them as witnesses, and so
the board obviously did not violate his due process rights in not calling them.”); Harrison v.
Seay, 856 F. Supp. 1275, 1281 (W.D. Tenn. 1994) (“Plaintiff’s failure to request the witness
obviously precludes any due process violation.”). Nor did the DHO have any obligation
spontaneously to perform further investigation by contacting Jamie Cipriano on Petitioner’s
behalf. Whitmore v. Jones, 490 F. App’x 122, 125 (10th Cir. 2012) (“the opportunity to present
documentary and other evidence has never been extended to require prison officials to gather . . .
or preserve evidence that a prisoner may later find helpful”); Ned, 2017 WL 3822736, at *4 (due
process right to present evidence did not obligate prison officials to collect and analyze
fingerprints).
Based on the foregoing, habeas relief based on Ground One should be denied.
B.

Ground Two – Failure to Allow Petitioner to Review Forensic Lab Report

The DHO Report states that “[y]ou were shown the Lab report that was created a month
later on April 22, 2016 in which the number . . . was retrieved from the cellular telephone sims
card that was found in the common area of your assigned bunk.” The DHO Report quotes
Petitioner’s response to being shown the lab report (“I didn’t know she contacted you recently, I
thought it was a while ago”) and notes that this response detracted from his credibility. ECF No.
1-1 at 2. In his handwritten “Reason for Appeal” to the Acting Regional Director, Petitioner
claimed that, “[a]t no time was I shown an analysis of a SIM card showing me any of my contact
info. I was only shown a list of numbers provided by my wife, which were on my prison phone
list.” ECF No. 1-1 at 8. In the petition, Petitioner argues that the DHO gave great weight to a

11

“report of forensics from the SIMS card from the phone yet Petitioner was never allowed to
review this report.” 5
Respondent argues that the DHO Report unambiguously establishes that Petitioner did
have access to the forensic lab report, described as a “Summary of Forensics Laboratory on
SIMS card.” According to the DHO Report, the lab report did not provide a comprehensive
analysis of the content of the phone, but rather reflected only the phone number retrieved from
the device. While the DHO may withhold evidence (for example from a confidential informant),
28 C.F.R. § 541.8(f)(6), that is not what happened here – the DHO Report states that the lab
report reflecting the limited information extracted from the phone (its number) was shown to
Petitioner. Beyond his unadorned post-hearing claim that he was not shown “an analysis on a
sim card,” Petitioner provides nothing to contradict the DHO Report’s statement that he was
shown the lab report, or to demonstrate that he challenged the reliability of the lab report’s
conclusion during the DHO hearing. See Figueroa, 1995 WL 352819, at *3 (no due process
violation arising from limited access to confidential report where hearing record establishes that
prisoner did not question its reliability, or request access to it, during hearing). Nor has
Petitioner demonstrated that he affirmatively requested access to the forensic lab report summary
until after the DHO hearing was concluded. 6 See id.
While I find that these reasons are sufficient for the Court to reject Ground Two as a
basis for habeas relief, I rely principally on a more substantial problem with Petitioner’s claim

5

Petitioner also complains that the forensic lab report was “never made part of the record.” This charge appears
well founded – neither Petitioner nor Respondent has supplied a copy of the forensic lab report to the Court. With
no copy in the record, Petitioner has made a Freedom of Information Act (“FOIA”) request for the forensic lab
report, but has yet to receive it. ECF No. 1 at 7; ECF No. 1-1 at 5. However, BOP’s failure to make an item of
evidence “part of the record” does not transgress the due process requirements applicable to a prison discipline
proceeding. Whitmore v. Jones, 490 F. App’x 122, 125 (10th Cir. 2012).
6

As far as the Court can discern, the first such request was his FOIA request. ECF No. 1-1 at 5.

12

that he was denied access to a document considered by the DHO. At bottom, I find that this
claim fails because, even if the Court assumes, contrary to the DHO Report, that Petitioner was
denied access to the forensic lab report despite his request to review it, such denial of access
would not amount to a violation of due process. This finding rests on the sufficiency of the
remainder of the evidence as summarized in the DHO Report. When there is other evidence
supporting the disciplinary decision, due process is satisfied without the need for a review of the
prison’s reasons for non-disclosure. Turner v. Caspari, 38 F.3d 388, 393 (8th Cir. 1994). “Any
other rule would violate the core principle that the some evidence standard ‘does not require
examination of the entire record, independent assessment of the credibility of witnesses, or
weighing of the evidence.’” Ned, 2017 WL 3822736, at *4-5 (quoting Hill, 472 U.S. at 455).
Here, I find the other evidence to be more than sufficient to satisfy the quantum of “some
evidence” as required in Wolff. It may be briefly summarized:
•

The caller who identified herself as Petitioner’s wife, said they were
divorcing, and claimed Petitioner was texting her;

•

The contemporaneous discovery of the phone hidden in the common area
of Petitioner’s cubicle;

•

the photographs of the phone;

•

The confirmation of the caller’s identity as Petitioner’s wife through her
phone number in prison records, and by Petitioner’s statements;

•

Petitioner’s corroborative statement that he and Ms. Cipriano were
involved in divorce proceedings;

•

Petitioner’s admission that he believed Ms. Cipriano made the accusation
based on animus arising from their divorce; and

•

Petitioner’s dissembling statement about his tenure in the cubicle.

This supplies ample support for the DHO Report’s conclusion, even without the corroboration in
the forensic lab report that the source of the texts was the phone found in Petitioner’s cubicle.
13

Accordingly, Ground Two fails to raise the specter of a due process violation and habeas relief
based on it should be denied.
C.

Ground Three – Failure to Deliver Incident Report in Twenty-Four Hours

Petitioner received the Incident Report in the morning of April 22, 2016, a full month
after the phone was seized from his bunk area, but less than twenty-four hours after notification
that criminal prosecution had been declined by the DOJ. ECF No. 1-1 at 2; ECF No. 5-1 at 16.
In the petition, he alleges that the delay violated BOP policy and prejudiced him because inmates
who could have testified about the phone had since left the facility. ECF No. 1 at 8. However,
Petitioner provides nothing more – that is, he does not indicate who these inmates are and why
he did not list them as witnesses when given the opportunity to do so prior to the DHO hearing.
Nor does he deny that he was told immediately (on March 22, 2016) about the caller who
claimed to be his wife and about the phone found in his cubicle; accordingly, it is clear that he
was aware of the need to find witnesses and evidence from the earliest possible moment.
Courts have consistently held that the regulation providing that an inmate will “ordinarily
receive the incident report within 24 hours of staff becoming aware of your involvement in the
incident,” 28 C.F.R. § 541.5(a), by its terms is not mandatory, and, in any event, does not “create
an enforceable right.” Rosa v. Grondolsky, 13-10496-JGD, 2013 WL 3491077, at*8 (D. Mass.
July 9, 2013) (written notice of the incident within twenty-four hours neither legally required nor
required by regulatory language); see Heavner, 2017 WL 1907440, at *3 (violation of prison
regulations not actionable in habeas context as “failure to follow such procedures does not
necessarily ‘establish a violation of due process, because constitutional minima may nevertheless
have been met’”); Nerlich v. Quintana, Civ. No. 12-CV-325-JMH, 2013 WL 875909, at *5 (E.D.
Ky. Mar.7, 2013) (assuming BOP regulation “required delivery of an incident report within 24

14

hours in all instances, the Constitution does not, and thus a failure to adhere to the regulation
does not create a claim of constitutional dimension”).
Due process requires only that the report setting out the charge must be provided at least
twenty-four hours in advance of the hearing. Figueroa, 1995 WL 352819, at *1 (citing Wolff,
418 U.S. at 564) (federal law “requires only that inmates be given written notice of the charges
against them at least 24 hours before the disciplinary hearing”). From the perspective of due
process, the purpose of this notice requirement “is to give the charged party a chance to marshal
the facts in his defense and to clarify what the charges are.” Wolff, 418 U.S. at 564. A delay
following an incident, particularly a delay resulting from an ongoing investigation, is not
inimical to that purpose, since further investigation “may reshape the nature of the charges or the
evidence relied upon.” Id. Therefore, while the Supreme Court has held that procedural due
process requires that an inmate be given at least twenty-four hours to prepare for his hearing on a
disciplinary charge, see id., there is no constitutional requirement that a prisoner be given notice
within twenty-four hours of the staff believing that a prisoner may be charged in the future with a
disciplinary infraction. Rosa, 2013 WL 3491077, at *7.
Petitioner’s reliance on the delay also founders on his failure to provide any substance to
his claim that it resulted in witnesses being lost. McGuiness v. Dubois, 75 F.3d 794, 800 (1st
Cir. 1996) (prisoner needs to make proffer of who live witnesses are and what they would say).
Juxtaposed with Petitioner’s signature affirming that he did not wish to call any witnesses on
BOP’s form, which had space for listing the names of any witnesses and advised of the right to
have them called, including that BOP would attempt to procure statements from any who had
become unavailable, the claim of lost witnesses due to delay rings hollow indeed.

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Based on the foregoing, the Court finds that the one-month delay in delivering the
Incident Report to Petitioner did not violate Petitioner’s right to due process. Habeas relief based
on Ground Three should be denied.
D.

Compliance with Wolff Requirements

Stepping back from Petitioner’s specific challenges to the constitutionality of the process
he was afforded, the Court finds that, in this instance, BOP’s discipline procedures appear to
have been well within the bounds of the requirements of the Fifth Amendment’s Due Process
clause, as established by the United States Supreme Court in Hill, 472 U.S. at 453, and in its
seminal decision in Wolff, 418 U.S. at 558. Specifically, I find that Petitioner received adequate
advance written notice of the violation in that he was given the written Incident Report within
twenty-four hours of the DOJ’s decision not to prosecute and two weeks in advance of the DHO
hearing. See Figueroa, 1995 WL 352819, at *1. He was afforded an opportunity to call
witnesses and present evidence, but declined to do so, see id., instead improperly (and belatedly)
arguing that BOP should have contacted witnesses for him. And, after the DHO hearing, he was
provided with the detailed and specific written statement set out in the DHO Report, which
described the evidence considered and the reasons for imposing discipline. See generally Hill,
472 U.S. at 454. I further find that, if the corroborative conclusion in the forensic lab report is
ignored, the DHO decision nonetheless remains supported by considerably more than the
constitutional minima of “some evidence,” so that due process is not implicated by Petitioner’s
claim that BOP refused to allow him to review it. See Ned, 2017 WL 3822736, at *3 (quoting
Hill, 472 U.S. at 455-56).
Based on these findings, and mindful that judicial review in a habeas case must not
amount to a reevaluation of the prison’s disciplinary determination, but is limited “to ensur[ing]

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that federal constitutional guarantees of due process are observed in the proceedings,” Pryor,
2015 WL 1268164, *2, I recommend that the petition be denied.
IV.

CONCLUSION
Based on the foregoing, I recommend that Petitioner’s Petition for a Writ of Habeas

Corpus under 28 U.S.C. § 2241 (ECF No. 1) be denied.
Any objection to this report and recommendation must be specific and must be served
and filed with the Clerk of the Court within fourteen (14) days after its service on the objecting
party. See Fed. R. Civ. P. 72(b)(2); DRI LR Cv 72(d). Failure to file specific objections in a
timely manner constitutes waiver of the right to review by the district judge and the right to
appeal the Court’s decision. See United States v. Lugo Guerrero, 524 F.3d 5, 14 (1st Cir. 2008);
Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir. 1980).

/s/ Patricia A. Sullivan
PATRICIA A. SULLIVAN
United States Magistrate Judge
December 6, 2017

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