CLD-009 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-2379

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DAVID MICHAEL BECKFORD,

Appellant

v.

WARDEN JERRY MARTINEZ

____________________________________

Appeal from the United States District Court

for the Middle District of Pennsylvania

(District Court Civil No. 08-cv-02023)

District Judge: Honorable A. Richard Caputo

____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)

or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

October 15, 2010

Before: RENDELL, FUENTES and SMITH, Circuit Judges

Opinion filed: October 25, 2010

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OPINION OF THE COURT

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PER CURIAM

David Beckford, a federal prisoner proceeding pro se, appeals an order of the 

United States District Court for the Middle District of Pennsylvania denying his petition 
2

for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. We will affirm the order of the 

District Court.

The record reflects that Beckford was issued an incident report charging him with 

Possession, Manufacture, or Introduction of a Hazardous Tool (Cell Phone Charger). 

According to the incident report, Officer C. Patrick found a cell phone charger under 

Beckford’s mattress during a routine shakedown of the housing area on September 22, 

2007. Beckford was transferred to administrative detention pending an investigation. 

Beckford appeared before the Unit Disciplinary Committee on September 28, 

2007. He stated that the charger belonged to an inmate named Kimley. Due to the 

severity of the charges, Beckford’s matter was referred to a Disciplinary Hearing Officer. 

On September 28, 2007, Beckford was advised of his rights, including the right to have a 

full-time staff member represent him at his hearing and the rights to call witnesses and 

present documentary evidence. Beckford signed a form stating that he did not wish to 

have staff representation or witnesses at his hearing. 

Beckford’s disciplinary hearing was held on October 9, 2007. The Hearing 

Officer’s report reflects that Beckford was again advised of his rights and that he again 

waived his rights to staff representation and witness testimony. Beckford stated at his 

hearing that the charger belonged to inmate Kimley and that he had argued with Kimley 

at work. Beckford did not provide any other evidence. The Hearing Officer found 

Beckford guilty as charged based on (1) the incident report, which stated that Patrick 

found the charger under Beckford’s mattress; (2) a memorandum prepared by Patrick, 
3

which stated that he had found a note stating that Beckford kept a phone in his mattress;

1

(3) a copy of the note; and (4) a 2005 memorandum prepared by Warden Holt, stating 

that inmates found in possession of cell phones would be charged with Possession, 

Manufacture, or Introduction of a Hazardous Tool and sanctioned, and that, under a 

Program Statement, inmates were responsible for keeping their areas free of contraband. 

The Hearing Officer stated in his report that he found no credible or convincing evidence 

that another person had placed the charger under Beckford’s mattress. 

The Hearing Officer sanctioned Beckford with 41 days disallowance of good 

conduct time, 90 days disallowance of non-vested good conduct time, 60 days of 

disciplinary segregation, 12 months loss of telephone privileges, and six months loss of 

visiting and commissary privileges. The Hearing Officer also recommended a 

disciplinary transfer in order to impose greater security. Beckford was advised of his 

appellate rights.

Approximately ten months later, on August 15, 2008, Beckford appealed the 

Hearing Officer’s decision to the Northeast Regional Office. The appeal, however, was 

rejected because it was filed beyond the requisite 20-day period for submitting an appeal. 

On September 25, 2008, Beckford submitted an appeal to the Bureau of Prison’s Central 

Office, which agreed with the Northeast Regional Office that Beckford’s appeal was 

untimely.

 

1

Patrick also stated in his memorandum that a cell phone was later found

under Inmate Kimley’s locker.
4

On November 11, 2008, Beckford filed a habeas petition pursuant to 28 U.S.C. 

§ 2241 in District Court challenging the Hearing Officer’s decision and claiming a 

violation of his right to due process. Warden Jerry Martinez, the respondent, argued that 

Beckford’s petition should be denied because Beckford failed to exhaust his 

administrative remedies and because sufficient evidence supports the Hearing Officer’s 

decision. The District Court denied Beckford’s petition, concluding that Beckford had 

failed to exhaust his administrative remedies and that, even if it were to reach the merits 

of the petition, he was not denied his due process rights. This appeal followed.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review 

over the District Court’s legal conclusions and apply a clearly erroneous standard to its 

factual findings. Okereke v. United States, 307 F.3d 117, 119-20 (3d Cir. 2002).

We agree with the District Court’s conclusion that Beckford failed to exhaust his 

administrative remedies. See Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 760 (3d 

Cir. 1996) (setting forth exhaustion requirement). As discussed above, the record reflects 

that Beckford’s administrative appeals were rejected as untimely. Absent a showing of 

cause and prejudice for his procedural default, review of the merits of Beckford’s habeas 

petition is barred. Id. at 762. 

Beckford asserts in his habeas petition that he did not receive a copy of the 

Hearing Officer’s report until July 21, 2008. Beckford, however, submitted no evidence 

supporting this statement. To the contrary, the Hearing Officer’s report reflects that the 

Hearing Officer sent the report to Beckford on October 11, 2007. The Hearing Officer 
5

also submitted a declaration attesting that his practice was to deliver reports immediately 

upon completion and advise inmates of their appellate rights. To the extent the delayed 

receipt of a Hearing Officer’s report may constitute cause, Beckford has not established 

that he did not timely receive the report. Beckford also appears to assert in his reply to 

Martinez’s response to his habeas petition that Martinez and prison staff interfered with 

his ability to pursue his administrative remedies. Martinez, however, does not explain 

what actions precluded him from submitting a timely appeal. Because Martinez has not 

shown cause for his procedural default, review of the merits of his habeas petition is 

barred. See id. (holding review of merits of habeas petition was barred where inmate 

could not show cause for his procedural default).2

Accordingly, because this appeal does not raise a substantial question, we will 

affirm the order of the District Court.

 

2 Based on this conclusion, we do not address the District Court’s additional

ruling on the merits of Beckford’s habeas petition.