Colon v. Ebbert
Filing
17
OPINION. Signed by Judge James P. Jones on 1/17/2019. (slt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
JULIO COLON,
Petitioner,
v.
C. RATLEDGE, WARDEN,
Respondent.
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Case No. 7:17CV00219
OPINION
By: James P. Jones
United States District Judge
Julio Colon, Pro Se Petitioner; Matthew Miller, Assistant United States
Attorney, Roanoke, Virginia, for Respondent.
Petitioner, Julio Colon, a federal inmate proceeding pro se, filed this Petition
for a Writ of Habeas Corpus under 28 U.S.C. § 2241.1 Colon contends that he was
convicted of prison disciplinary offenses without due process. After review of the
record parties’ submissions, 2 I conclude that Colon’s petition must be dismissed as
without merit.
1
When Colon filed his § 2241 petition, he was confined at United States
Penitentiary Lee (“USP Lee”), where C. Ratledge was employed as warden. Although
Colon has now been transferred to a federal prison facility in another state, because USP
Lee is located in this judicial district, I retain jurisdiction to decide Colon’s petition. See,
e.g., Ex parte Mitsuye Endo, 323 U.S. 283, 306 (1944).
2
By previous Opinion and Order, I dismissed the Petition for failure to exhaust
administrative remedies, based on a responsive pleading and documentation from the
respondent to which Colon never responded. By Order entered January 2, 2019, based on
Colon’s representation that he did not receive the respondent’s submissions, I granted his
motion for reconsideration, vacated the dismissal order, and reinstated the case to the
active docket.
I.
Colon was incarcerated at United States Penitentiary Lewisburg (“USP
Lewisburg”) when the disciplinary proceedings at issue occurred. On June 13,
2016, an investigator there completed an Incident Report, charging Colon with
three prison disciplinary infractions: introduction of any narcotic, use of the mail
for an illegal purpose, and use of the telephone for an illegal purpose.3 According
to the Incident Report and an investigation report by authorities at USP Lewisburg,
evidence indicated that in March 2016, Colon had placed a telephone call and then
used coded language in telephone conversations with a female acquaintance to
arrange for her to send him fifty N8 Suboxone strips hidden in legal mail. The
attempted transaction was thwarted in the USP Lewisburg mailroom. Investigators
discovered that the law firm listed as the return address on Colon’s incoming legal
mail item was false, opened the package, and found the Suboxone strips and other
items used as evidence against Colon.
Undisputed documentation indicates that Colon received a copy of the
Incident Report on June 13, 2016, and again on August 9, 2016, after a possible
criminal prosecution was declined.
A Unit Discipline Committee (“UDC”)
3
The facts summarized here are taken from the respondent’s documentary
evidence and are undisputed, unless otherwise noted. The respondent offers a sworn
declaration by the paralegal for the Beckley Consolidated Legal Center in West Virginia,
dated July 5, 2017, indicating that these documents were obtained from Colon’s Central
File that follows him from one prison facility to another. Resp. Show Cause, Wahl Decl.
¶ 14, ECF No. 4-1.
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reviewed the Incident Report and held a hearing at which Colon was present. He
made no comment.
Based on the seriousness of the charges, the UDC then
referred the report to a Disciplinary Hearing Officer (“DHO”) for further
proceedings. On August 10, 2016, Colon signed forms indicating that he had been
given notice and advised of his rights regarding the upcoming DHO proceedings.
In writing, he declined opportunities to have a staff representative and to present
witness testimony.
The DHO conducted a hearing on August 15, 2016. Colon declined to
present evidence on his behalf. When the DHO asked if he wished to admit or
deny committing the prohibited acts charged in the report, Colon made no
comment. 4
The final DHO Report in the record is dated September 1, 2016. It indicates
that as evidence in the case, the DHO considered the Incident Report, the
investigation report, a transcript of the telephone conversation between Colon and
his accomplice, and photographs of the legal mail package addressed to Colon that
contained the concealed Suboxone strips. The DHO also considered the fact that
Colon had elected not to make any statement or offer any documentary evidence in
his defense at the hearing. Specifically, the DHO found that these facts supported
4
The DHO also noted that Colon said he accepted full responsibility for his
actions. Colon denies making any statement.
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an adverse inference that Colon had committed the charged infractions, because if
Colon had not committed the infractions, he would have taken the opportunity that
the hearing offered to deny doing so. Based on this listed evidence, the DHO
determined that Colon had committed the prohibited acts as charged. The DHO
then imposed sanctions, including the loss of forty-one days of good conduct time
for each offense, sixty days of disciplinary segregation, and the temporary loss of
several privileges. The DHO Report indicates that Colon was advised of his right
to pursue an administrative appeal of the DHO’s rulings and that he was provided a
copy of the final DHO report on September 1, 2016. Colon did not appeal.
Colon’s § 2241 petition contends that the DHO proceeding occurred less
than 24 hours after Colon received the Incident Report; that he was denied the right
to call witnesses and to present documentary evidence; that he did not receive a
copy of the DHO’s written decision; and that the evidence was insufficient to
support the DHO’s ruling. The respondent filed a pleading asking for dismissal of
the petition. 5 The court notified Colon of the respondent’s pleading as required by
5
The respondent argues for dismissal of Colon’s claims as without merit or for
failure to exhaust administrative remedies. Because I herein determine that the claims are
without merit, I need not address exhaustion. In any event, it appears that once Colon
failed to challenge the validity of the evidence or to deny his guilt during the DHO
hearing, he could not have raised these issues in an administrative appeal. 28 C.F.R. §
542.15(b)(2) (“An inmate may not raise in an Appeal issues not raised in the lower level
filings.”).
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Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). Colon has responded, making
the matter ripe for consideration.
II.
“Prison disciplinary proceedings are not part of a criminal prosecution, and
the full panoply of rights due a defendant in such proceedings does not apply.”
Wolff v. McDonnell, 418 U.S. 539, 556 (1974).
The inmate facing a prison
disciplinary charge enjoys these limited, constitutionally guaranteed due process
protections: (1) written notice of the charged violations at least twenty-four hours
before the hearing; (2) disclosure of evidence against him; (3) the right to call
witnesses and present documentary evidence absent safety concerns; (4) a neutral
and detached factfinder; and (5) a written statement by the fact finder of the
evidence relied on and reasons for disciplinary action. Id. at 564-71.
Undisputed documents now in the record demonstrate that Colon received
the following Wolff protections: (1) proper and timely notice of the charges, (2)
disclosure in the Incident Report of what evidence would be considered in support
of those charges, and (3) an opportunity to present witnesses and documentary
evidence at the hearing. Therefore, I must deny relief on his claims to the contrary.
I also find it undisputed that Colon has now received a copy of the DHO’s
Report, listing the evidence relied on, the reasons for the finding of guilt, and the
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reasons for the sanctions imposed. 6 Finally, the documentation of the disciplinary
proceedings does not support any claim that the DHO failed to remain neutral and
detached as the factfinder, and Colon has not asserted such a claim. Therefore, I
conclude that Colon has failed to demonstrate denial of any procedural protection
constitutionally required under Wolff related to the challenged disciplinary
proceedings.7
Rather, Colon’s petition and later submissions, in essence, contend that the
DHO had insufficient evidence to support his findings or the penalties imposed. In
a sworn affidavit, Colon avers that he never instructed anyone to send Suboxone to
any prison.
He complains that he never saw the transcript of the telephone
conversation or the photographs of the legal mail package. Colon believes that
USP Lewisburg authorities “manufactured the DHO report” and “have no
6
Colon repeatedly claims that he never received the DHO Report. The record
belies this contention, however. The clerk’s office mailed Colon copies of all documents
attached to the responsive pleading, including the DHO Report. Colon also attempts to
dispute the authenticity of the DHO Report in the record. He states that at some
unspecified time, he reviewed his Central File and did not find the DHO report or “the
alleged evidence the DHO relied on.” Pet’r’s Response Ex. B, ECF No. 15. These facts
are not sufficient to undermine confidence in the authenticity of the DHO Report now
before the court.
7
Colon complains that the alleged delay in his receipt of the DHO Report
prevented him from pursuing a disciplinary appeal under Bureau of Prisons procedures.
This contention states no viable habeas claim, however, because Wolff does not recognize
a constitutional right to an appeal from the disciplinary factfinder’s decision. See, e.g.,
Westbrook v. Koch, No. 1:16CV480 (LMB/IDD), 2017 WL 2589963, at *6 (E.D. Va.
June 13, 2017) (“[I]t is widely recognized that an inmate has no right to appeal a
disciplinary board’s decision.”), appeal dismissed, No. 17-6854, 2017 WL 6803019 (4th
Cir. Sept. 5, 2017) (unpublished).
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evidence” that he actually committed the charged offenses. Pet’r’s Resp. Ex. B,
ECF No. 15. Because the respondent has failed to produce all of the evidence
against him in response to his § 2241 petition, Colon demands that the disciplinary
offenses be expunged and his lost good conduct time be restored.
“The fundamental fairness guaranteed by the Due Process Clause does not
require courts to set aside decisions of prison administrators [in disciplinary
proceedings] that have some basis in fact.” Superintendent, Mass. Corr. Inst.,
Walpole v. Hill, 472 U.S. 445, 456 (1985). Thus, when an inmate challenges the
sufficiency of the evidence to support his disciplinary convictions, due process
requirements in this regard are met when there is “some evidence” in the record
“that could support the conclusion reached.” Id. at 455-56. Determining “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.”
Id. at 455.
Moreover, “[r]evocation of good time credits is not
comparable to a criminal conviction, and neither the amount of evidence necessary
to support such a conviction, nor any other standard greater than some evidence
applies” when an inmate faces a potential loss of good time. Id. at 456 (citations
omitted).
Colon had his opportunity at the DHO hearing to learn what evidence would
be considered against him, to challenge its authenticity, to deny his participation in
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the charged offenses, and to present evidence and witness testimony contradicting
the evidence the prison’s investigation had gathered. Instead, it is undisputed that
Colon made no statement and offered no documentation or witness testimony. The
Wolff decision did not recognize a constitutional right for an inmate to remain
silent during disciplinary proceedings without that silence being used as evidence
against him. Thus, from Colon’s failure to deny participation in the offenses, the
DHO could lawfully infer that he did participate — an inference amply supported
by the other, unchallenged evidence before the DHO.
Furthermore, the protections recognized in Wolff and Hill do not require that
all physical evidence or photographs of it be presented to the inmate at the hearing,
be attached to the DHO Report, or be presented in defense of a § 2241 petition.
Even if such evidence were provided with the Report, it is not my province in these
habeas proceedings to reexamine it, determine the credibility of the investigative
report, or weigh the DHO’s evidence against Colon’s present denial of guilt. Hill,
472 U.S. at 456. On habeas review, I must find that due process is satisfied here
because the DHO had some evidence that Colon committed the charged
infractions: the discovery of the 50 Suboxone strips in a package addressed to
Colon using a false return address, the telephone call Colon placed, ties between
the transcribed conversation and the items in the package, and Colon’s failure to
deny participation in the offenses when given the chance to do so.
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For the reasons stated, I find no material disputed fact and conclude from the
record that the challenged disciplinary proceedings did not violate Colon’s due
process rights. Accordingly, I will dismiss with prejudice his § 2241 petition for
habeas relief.
A separate Final Order will be entered herewith.
DATED: January 17, 2019
/s/ James P. Jones
United States District Judge
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