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Beard v. Hollembaek

United States District Court, E.D. North Carolina, Western Division

March 29, 2018

MARLON D. BEARD, Petitioner,
v.
STEPHANIE HOLLEMBAEK, Respondent.

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE.

         This matter comes before the court on respondent's fully briefed motion to dismiss (DE 14). In this posture, the issues raised are ripe for adjudication. For the following reasons, the court grants respondent's motion to dismiss.

         STATEMENT OF CASE

         On August 9, 2016, petitioner filed the instant pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner's habeas petition challenges his disciplinary conviction for possession of a portable phone on the grounds that it violates the Due Process Clause of the Fifth Amendment to the United States Constitution. Specifically, petitioner alleges: (1) the incident report failed to comply with Bureau of Prisons's (“BOP”) regulations because it failed to list all the facts, the persons at the scene, and did not “detail” all the evidence; (2) the incident report was not issued to petitioner within twenty-four hours of the incident as required by BOP policy, and his DHO hearing occurred after the time period prescribed by BOP regulations; (3) corrections officers failed to “establish ownership” of the phone by following the procedures set forth in the BOP policy manual; and (4) the Discipline Hearing Officer's (“DHO”) finding that petitioner possessed a portable phone was not support by sufficient evidence. (Pet. (DE 1) at 7-8).

         On August 10, 2017, respondent filed a motion to dismiss arguing that petitioner's disciplinary conviction does not violate the due process clause, and that petitioner is not entitled to relief. Petitioner responded.

         STATEMENT OF FACTS

         Petitioner, a federal inmate, was housed at the Federal Correctional Institution located in Morgantown, West Virginia (“FCI-Morgantown”) at the time he received the disciplinary conviction at issue in this action.[1] (Pet. Ex. E (DE 1-1) at 25). On April 4, 2015, prison officials charged petitioner with the disciplinary offense of possessing a portable phone (BOP Code 108). (Id.) Petitioner was provided a copy of the incident report on April 9, 2015. (Id.) On April 11, 2015, the Unit Discipline Committee reviewed petitioner's incident report and referred the charge to FCI Morgantown's DHO for a hearing. (Id.) That same day, corrections officers provided petitioner with a “Notice of Discipline Hearing” form, which provided notice of the hearing and advised petitioner of his rights to call witnesses and have a staff representative at the hearing. (Pet. Ex. M (DE 1-1) at 39). Petitioner declined staff assistance and declined to identify any witnesses. (Id.) Petitioner signed the Notice of Discipline Hearing on April 11, 2015, acknowledging that he received notice of the hearing. (Id.)

         Petitioner's disciplinary hearing was held on April 21, 2015. (Pet. Ex. G (DE 1-1) at 27). After reviewing the evidence, the DHO determined petitioner committed the offense of possessing a portable phone. (Id. at 28). The DHO based his finding on the incident report and petitioner's own inconsistent statements during the hearing about his knowledge of the phone. (Id. at 28-29). The DHO considered petitioner's claim that the phone belonged to his cell mate, but rejected the claim as not credible. (Id. at 29). Instead, the DHO credited the reporting officer's conclusion that because the phone was found in petitioner's assigned cell, the phone likely was used by both petitioner and his cell mate. (Id.) The DHO hearing record included the following summary:

To make this finding, the DHO relies on the reporting officer's description of the incident as reported in section 11 of the incident report as follows:
“On April 4th, 2015, at approximately 0850 hrs, I began a search of the living quarters T04-023 in Bates Unit assigned to [petitioner]. During my search I recovered a phone charger wrapped in a food service glove under the mattress of the bottom bunk, and in an eye glasses case attached to the bottom of the top bunk by a magnet I recovered (1) black, LG touch screen cell phone.”
The DHO considered [petitioner's] initial defense which he raised at the hearing. Regarding the search of his assigned cell, [petitioner] stated, “I had no idea what was going on. They were searching the cell, and I was asleep in the top bunk. I had nothing to do with anything [sic] with whatever Hamad had. I figured the [corrections officers] had what they wanted. I have never seen a cell phone or charger in our cell.” The DHO also considered [petitioner's] further denials where he indicated he was absolutely unaware of the existence of any portable telephone concealed within the cell he shared with Hamad. [Petitioner] stated, “if he did have one - and I lived with Hamad for seven months - he never showed me a cell phone.”
Furthermore, the DHO considered [petitioner's] sudden change in h i s preliminary narrative when he admitted he had been fully aware of the portable telephone in use in his assigned cell. [Petitioner]'s recollection of the prohibited device was suddenly crystal clear and in high definition. [Petitioner] stated, “I told Hamad, ‘[w]hatever you do, it's on you.' One day recently, I came into the cell, and he was speaking on the phone. I didn't stay and left immediately. I figured it was on him. In all honestly, Hamad was supposed to say the phone belonged to him and no one else.”
[Petitioner's] next defense is his intimation that the portable telephone was completely in the possession by [sic] Hamad and Hamad only. [Petitioner] stated, “Yes, I was aware Hamad had a phone, but I never touched it.” The DHO gave little weight to this defense because [petitioner] quickly vacillated between having absolutely no knowledge of the portable telephone to being somewhat complicit in the knowledge of its existence. [Petitioner]'s secondary decision to reveal his knowledge of the device, while disavowing any connection to its illegal use, allows [petitioner] to distance himself from the contraband discovered in his cell. Additionally, the DHO considers [petitioner] has a powerful motive for denying the charge as a means to evade responsibility for his act.
Furthermore, [petitioner] has a motive for not telling the truth and, therefore, the DHO gives little weight to [petitioner's] defense that the portable telephone did not belong to him, but was [in] the sole possession and was under the sole operation of Hamad. Ultimately, [petitioner]'s denial of responsibility must be weighed against the reporting officer's description of the incident. Furthermore, [petitioner] has not offered any reliable evidence refuting the officer's statements that the prohibited device was found in their assigned cell, and in all probability, the portable telephone was in mutual utilization by both [petitioner] and Hamad. Therefore, the DHO ...

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