Marshall v. Chandler

Filing 9

Opinion and Order. For the reasons discussed herein, Petitioner's petition is DENIED. A certificate of appealability is also DENIED. (Ordered by Judge Reed C O'Connor on 2/1/2016) (trt)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
SYLVESTER MARSHALL,
Petitioner,
V.
RODNEY W. CHANDLER, Warden,
FCI-Fort Worth,
Respondent.

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Civil Action No. 4:14-CV-947-O

OPINION AND ORDER
Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 filed
by Petitioner, Sylvester Marshall, a federal prisoner who was confined at the Federal Correctional
Institution (FCI-Fort Worth) in Fort Worth, Texas, at the time petition was filed, against Rodney W.
Chandler, Warden of FCI-Fort Worth, Respondent. After considering the pleadings and relief sought
by Petitioner, the Court has concluded that the petition should be denied.
I. BACKGROUND
Petitioner is serving a 120-month term of imprisonment for his 2009 conviction in the United
States District Court for the Southern District of Alabama for conspiracy to possess with intent to
distribute crack cocaine. J., United States v. Marshall, Criminal Action No. 1:08-cr-142-KD-B, ECF
No. 32. By way of this petition, Petitioner challenges a disciplinary proceeding conducted at FCCYazoo City in Mississippi involving incident report No. 2428924. The incident report charged
Petitioner with possession of a hazardous tool, a cell phone, a Code 108 violation. Resp’t’s App. 30,
ECF No. 8. Following a hearing, the disciplinary hearing officer (DHO) found Petitioner committed
the prohibited act as charged. Id. at 31. Petitioner’s punishment included loss of various privileges,
disciplinary segregation, and loss and forfeiture of good time credits. Id. at 32. Petitioner seeks

reinstatement of his good time credits. Pet. 7, ECF No. at 11.
II. EXHAUSTION
The record contains no evidence through exhibits that Petitioner appealed the DHO’s decision
however he asserts that he “attempted to obtain relief by accessing the Bureau of Prison’s
Administrative Remedy process, but he has recently been denied at the Central Office level, the last
possible venue for Administrative Relief.” Pet. 2, ECF No. 1. Respondent does not address the issue.
Thus, the Court assumes, without deciding, that Petitioner exhausted his administrative remedies to
no avail.
III. DISCUSSION
In the context of a prison disciplinary proceeding resulting in the loss of good time credits,
constitutional due process requires that a prisoner at a minimum receive (1) written notice of the
charges against him at least twenty-four hours prior to the disciplinary hearing, (2) an opportunity to
call witnesses and present documentary evidence in his defense, and (3) a written statement from the
factfinder that includes the evidence relied on and the reasons for the disciplinary action taken. Wolff
v. McDonnell, 418 U.S. 539, 563-67 (1974). In addition, there must be “some evidence” in the record
that supports the findings made at the hearing. Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445,
454-56 (1985); Richards v. Dretke, 394 F.3d 291, 293 (5th Cir. 2004).
Incident report No. 2428924 alleges that on April 4, 2013, prison staff became aware of the
following facts:
On December 13, 2012 at approx. 2:05 pm., a cell phone was found at the Magnolia
Camp. The cell phone was sent off by the SIS department to the forensic lab. On April
4, 2013 at approximately 1:00pm [sic] after reviewing the documentation that was
received from the lab r [sic] on April 3, 2013, it was concluded that YOU inmate
Marshall, Silvester, Reg. No. 10367-003 was once in possession of or used the cell
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phone that was found on December 13, 2012 at the Magnolia Camp. Several numbers
that were detected on the cell phone are currently on your phone list and were on your
phone list prior to that cell phone being found. Specifically telephone numbers
[phone] and [phone] were two of the many numbers that were detected
on the phone that were on your phone list. Therefore you are receiving this incident
report for code 108 (Possession, manufacture, or introduction of a hazardous tool (Cell
phone)[)].
Resp’t’s App. 9, ECF No. 8.
Prison officials notified Petitioner of the disciplinary charges on April 4, 2013. Id. On April
8, 2013, prison officials notified Petitioner that a hearing would be held at a date to be determined,
and he was advised of his rights at the hearing in writing. Id. at 28-29. The disciplinary hearing was
held on April 12, 2013. Id. at 30. Petitioner therefore received at least twenty-four-hour advance
notice of the charges. At the hearing, Petitioner was offered but declined a staff representative and
was given an opportunity to make a statement, present evidence, and call witnesses on his behalf. Id.
On May 10, 2013, Petitioner was provided a copy of the DHO’s decision and reasons for the action
taken and was notified of his right to appeal. Id. at 30-33.
The DHO stated in his report that the “specific evidence” relied upon to support his guilty
finding included the following (all punctuation and grammatical errors are in the original):
As evidence, the DHO relied on the written eyewitness account of the reporting staff
member, SIS Support Technician D. Lott, who stated on December 13, 2013, at
approximately 2:05 p.m., a cell phone was found at the Magnolia Camp. The cell
phone was sent off by the SIS Department to the forensic lab. On April 4, 2013, at
approximately 1:00 p.m., after reviewing the documentation that was received from
the lab on April 3, 2013, it was concluded that you were once in possession of or used
the cell phone that was found on December 13, 2012, at the Magnolia Camp. Several
numbers that were detected on the cell phone are currently on your phone list and were
on your phone list prior to that cell phone being found. Specifically telephone numbers
334-207-2119 and 251-362-6085 was two of the many numbers that were detected on
the phone that were also on your phone list.
The DHO considered your denial of possessing a cell phone, Code 108. When asked
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if you wanted to make any further comment, you stated “Me and Lett are from the
same neighborhood. We know some of the same people. My Grandmother was
married to his Uncle prior to the marriage she is in now. We dated some of the same
girls and we were from the same neighborhood. I did not use that phone.”
As evidence, the DHO also relied on records (4 pages) from Final Mobile Forensics
reflecting numerous phone numbers dialed from the confiscated cell phone, which
included phone numbers 334-207-2119 and 251-362-6085. Also, reviewing copies of
TRUVIEW Inmate Center Report (8 pages) reflect the phone history from 03-01-2012
through 04-04-2013 for Register Number 10367-003 (your Register Number), which
reflect phone numbers 334-207-2119 and 251-362-6085 were on your approved phone
list and listing both numbers as belonging to “Spouse”.
As evidence, the DHO also considered your statement during the investigation on
April 4, 2013. Specifically, the Investigating Lieutenant, J. Hutchins, documented that
you stated “The number on the list is the numbers I called.” Although you did not
specifically admit to possessing the cell phone in question nor using one, you did
admit to calling the phone numbers listed on your incident report.
The DHO also consider your statement during the Unit Discipline Committee (UDC)
hearing on April 8, 2013, wherein you state “I did not use the phone. We from the
same neighborhood and know some of the same people. I gave Lett my phone book,
so he could see the numbers of some of the people I know” to the UDC Chairman,
Case Manager F. Griffin.
The DHO considered the statements of your inmate witness, but it was not found to
present enough evidence to relieve you of responsibility in this case. Inmate Michael
Lett, Register Number 09224-003, provided the following statement: “We call some
of the same numbers. Some of the people we know, I didn’t remember their numbers.
Inmate Marshall gave them to me.” Ultimately, the DHO did not believe your
assertion, nor inmate Lett’s testimony, that inmate Lett called the two numbers listed
on your incident report. The DHO explained to you during the hearing that he crossed
referenced both phone numbers from your incident report (334-207-2119 and 251362-6085) with inmate Letts approved phone list for numbers that were on his list
from March 1, 2012, through April 4, 2013. Neither of these two phone numbers was
on his list. The DHO did ask inmate Lett during this hearing why those two numbers
were not on his list if he was in the habit of communicating with those numbers, to
which he replied that he did not have enough time to add them to his approved phone
list. As the DHO explained to you, he believed that if inmate Lett was in fact calling
these numbers on a cell phone, he would have also placed them on his approved phone
list eventually. The DHO noted that as of April 4, 2013 (the date inmate Letts phone
number list report was generated), even though the communications identified in your
incident report occurred on November 26, 2012, and December 12, 2012, inmate Lett
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never added either of the two phone numbers to his approved phone list, even though
he had ample time to do so since the cell phone is question was found on December
13, 2012. Furthermore, your own approved phone list reflects phone numbers 334207-2119 and 251-362-6085 as belonging to “Spouse”. This is information that you
would have entering into the phone system when you added these numbers to your
phone list.
The DHO noted that even though you were not found in physical possession of a cell
phone, because you had used a cell phone to make the calls listed on the forensic
report to numbers that are on your approved phone list, the DHO deduced that you had
to have possessed a cell phone to do so. By having a cell phone, you possessed a tool
deemed hazardous by the Bureau of Prisons. Cellular telephones can allow an inmate
to plan an escape without the chance of staff monitoring the call. You would also be
able to make threats to civilians, or plan other potential criminal acts in the local
community, which could potentially harm by standing civilians in the community. The
potential to accomplish these acts or crimes was there because a cellular telephone
call, from a federal prison, would have been unmonitored. For all the reasons listed,
it is not intended that inmates make telephone calls which are not monitored, or which
do not pass through the inmate telephone monitoring system. The possession of a
cellular telephone, or equipment which furthers or enables that possession, as an
inmate in a federal prison, constitutes possession of a tool which is hazardous.
Policy makes you responsible for everything on your person, in your personal
property, and in your living quarters (cubical). Specifically, Program Statement
5270.09, Inmate Discipline Program, Appendix C, page 39, states that it is your
responsibility to keep your area free of contraband.
Also, upon your commitment to any Bureau of Prisons facility, you participate in the
institution’s Admission and Orientation (A&O) program wherein you are advised of
Bureau of Prisons (BOP) rules and regulations and your responsibility to abide by
these rules. You were also provided an A&O handbook upon your entry into this
facility which further details prohibited acts. Your participation in A&O and
knowledge of BOP rules and regulations further establishes your culpability.
Accordingly, it is the finding that SIS Technician D. Lott’s report (coupled with the
evidence attached to the incident report), being more credible than your denial, carries
the greater weight of evidence, and that shows that you committed the prohibited act
as charged.
Id. at 31-32.
In this petition, Petitioner claims that in a disciplinary hearing the proper standard of proof

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is a “preponderance of evidence,”1 that the evidence was insufficient to support the DHO’s finding,
and that the DHO should have further investigated the charges. Pet. 5-6, ECF No. 1.
The DHO’s decision must be supported by “some evidence.” Hill, 472 U.S. at 454-55; Wolff,
418 U.S. at 563-66. Ascertaining 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.
Hill, 472 U.S. at 455. The relevant inquiry is whether there is any evidence in the record that could
support the conclusion reached by the DHO. Id. at 455-56. In this case, there was some evidence to
support the DHO’s conclusion that Petitioner committed the prohibited act. Not only did the DHO
consider the incident report, which standing alone can satisfy the “some evidence” standard, he
considered other documentary exhibits, including the forensic reports, Petitioner’s statement, and
Lett’s testimony. Hudson v. Johnson, 242 F.3d 534, 536-37 (5th Cir. 2001). Credibility decisions are
left to the DHO. Adams v. Gunnell, 729 F.2d 362, 370 (5th Cir. 1984). Furthermore, the nature and
extent of an investigation in a prison disciplinary proceeding is within the discretion of prison
authorities.
IV. CONCLUSION
For the reasons discussed herein, Petitioner’s petition is DENIED. A certificate of
appealability is also DENIED.
SO ORDERED on this 1st day of February, 2016.

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Reed O’Connor
UNITED STATES DISTRICT JUDGE
1

Petitioner relies on Goff v. Dailey, 789 F. Supp. 978 (SD Iowa 1992), for this proposition, however on
appeal the decision was reversed on this issue. 991 F.2d 1437 (1993).

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