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ELIZABETH A. STRANGE

First Assistant United States Attorney

District of Arizona

Denise Ann Faulk

Assistant U.S. Attorney

Arizona State Bar No. 12700

United States Courthouse

405 W. Congress, Suite 4800

Tucson, Arizona 85701-5040

Telephone: (520) 620-7300

Email: denise.faulk@usdoj.gov 

Attorneys for Respondent

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Gino Carlucci,

Petitioner,

vs. 

J.T. Shartle, Warden, 

Respondent.

CV 18-00051-TUC-RM (DTF)

RESPONSE TO REQUEST FOR 

EVIDENTIARY HEARING 

J.T. Shartle (“Respondent”), by and through his undersigned attorneys, hereby 

responds to Petitioner Gino Carlucci’s Request for Evidentiary Hearing (Doc. 12). 

Respondent respectfully requests that this Court deny Petitioner’s request for a hearing 

because it is directly contrary to the mandates of the United States Supreme Court. This 

Response is supported by the accompanying Memorandum of Points and Authorities and 

all matters of record. 

MEMORANDUM OF POINTS AND AUTHORITIES

I. BACKGROUND

Petitioner Gino Carlucci (“Petitioner”), Register Number 12233-081, is 

incarcerated at the United States Penitentiary (“USP Tucson”) in Tucson, Arizona. (Doc. 

11, Ex. A, Declaration of Lorri Mitchell, Att. 1, Public Information, at 1 (“RESP OF: 

TCP”; TCP is the facility code for USP Tucson)). Petitioner filed the Petition on January 

29, 2018. (Doc. 1.) In it, Petitioner argues that his rights were violated during a 

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Discipline Hearing in which he lost 27 days Good Conduct Time. (Id.) Petitioner alleges 

that there is no evidence to support the prohibited acts for which he was disciplined, that 

the Discipline Hearing Officer (“DHO”) was impartial1 and biased and that he was not 

afforded the opportunity to call his listed witness or view the evidence used to obtain a 

guilty finding. (Id. at 4-6.) 

On April 2, 2018, Respondent filed his Return and Answer to the Petition, 

requesting the Court to deny the Petition and dismiss the case because Petitioner failed to 

show that the Federal Bureau of Prisons (“BOP”) violated his constitutional rights. (Doc. 

11.) On April 12, 2018, Petitioner filed his Traverse to Response and Request for 

Evidentiary Hearing, supported by Declarations from Petitioner and Vernon Smith. (Doc. 

12.) Petitioner asserts that there was no evidence that he was running a business and 

requests the Court conduct an evidentiary hearing “to reach the truth of the matter.” (Id.

at 6.) 

The facts underlying the discipline are set forth in detail in the Return (Doc. 11 at 

5-8) and will not be repeated here. Essentially, on June 13, 2017, Special Investigative 

Services (“SIS”) Technician D. Madrid wrote an Incident Report charging Petitioner with 

Prohibited Act Codes 296, Use of the mail for abuses other than illegal; Code 328, Giving 

money or anything of value to, or accepting money or anything of value; and Code 334, 

Conducting a business, conducting or directing an investment transaction without staff 

authorization. (Id. at 5-6, Ex. A, Att. 2 at 7 §§ 9, 10, 12, 13.) Lieutenant D. Eastwood 

conducted an investigation, concluded the charges were accurate, and forwarded the 

Incident Report to the UDC/DHO for hearing. (Id. at 6, Ex. A, Att. 2 at 8 §§ 22, 26-27.) 

The UDC held a hearing on June 14, 2017, and forwarded the matter to the Discipline 

Hearing Officer (“DHO”) for hearing. (Id. at 6-7, Ex. A, Att. 2 at 7 §§ 19-20.) DHO 

Ciufo conducted a hearing on June 28, 2017. (Id. at 7, Ex. A, Att. 2 at 1 § I.) Based on 

the evidence, DHO Ciufo concluded that Petitioner committed two of the three prohibited 

 1 Petitioner apparently means to allege that DHO Ciufo was not impartial. 

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acts charged in the Incident Report, namely: Prohibited Act Code 296, Use of the mail for 

abuses other than criminal activity which circumvent mail monitoring procedures; and 

Prohibited Act Code 328, Giving money or anything of value to, or accepting money or 

anything of value from, another inmate or any other person without staff authorization. 

(Doc. 11 at 7, Ex. A, Att. 2 at 2 § IV.) DHO Ciufo did not find that Petitioner committed 

Code 334, Conducting a business, conducting or directing an investment transaction 

without staff authorization. (Id.) 

II. LEGAL ANALYSIS 

A. Legal Standard

The Supreme Court set out the limited due process procedures that apply in prison 

discipline hearings at which an inmate may lose good conduct sentence credits in Wolff v. 

McDonnell, 418 U.S. 539, 557 (1974). Following Wolff, the Supreme Court held that due 

process requirements are satisfied when there is “some evidence” in the disciplinary 

record to support the decision of the discipline hearing officer. Superintendent v. Hill, 

472 U.S. 445, 455-56 (1985). The “some evidence” standard does not require a court to 

examine the entire disciplinary record, perform an independent assessment of the 

credibility of witnesses or re-weigh the evidence. Id. at 455. The relevant question, the 

Court explained, is “whether there is any evidence in the record that could support the 

conclusion reached by the discipline board.” Id. 

B. The Court Is Not Required to Have an Evidentiary Hearing to Reweigh 

the Evidence. 

Petitioner argues at length that there is no evidence that he was conducting a 

business and submits two Declarations in support of his claims. (Doc. 12 at 4-6, 9-11, 

13.) Petitioner misses the point completely: DHO Ciufo did not find that he committed a 

violation of Code 334, Conducting a business, conducting or directing an investment 

transaction without staff authorization. (Doc. 11 at 7, Ex. A, Att. 2 at 2 § IV.) 

Petitioner’s “evidence” that he did not commit a violation that he was found not to have 

committed is irrelevant.

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Petitioner was found to have committed Prohibited Act Code 296, Use of the mail 

for abuses other than criminal activity which circumvent mail monitoring procedures. He 

was not required to be operating a business to commit that prohibited act. As detailed in 

the Return, the evidence at the DHO Hearing clearly showed that Petitioner used his email 

account to circumvent the monitoring of the correspondence between V.S. and his son, 

A.S. (Doc. 11 at 9-10, Ex. A, Att. 1 at 7 § 11, 19-21, 22, 23, 24.) Additionally, Petitioner 

admitted to the UDC that he passed a message from V.S. to A.S. (Id. at 10, Ex. A, Att. 2 

at 1, 7.) 

Similarly, Petitioner was found to have committed Prohibited Act Code 328, 

Giving money or anything of value to, or accepting money or anything of value from, 

another inmate or any other person without staff authorization. Petitioner admits that he 

asked for and received $40.00 from V.S.’s son, A.S. (Doc. 1 at 4.) Petitioner produced 

no evidence that BOP authorized him to receive funds from A.S.2

 

Petitioner’s request that this Court to hold a hearing and take testimony from Erick 

Romero, Robert Wright and Lieutenant VanDevender “to reach the truth of the matter” 

(Doc. 12 at 6) is a request to re-weigh the evidence in direct contradiction of Hill’s 

mandates. The Court is not to examine the entire disciplinary record, perform an 

independent assessment of the credibility of witnesses or re-weigh the evidence. Hill, 472 

U.S. at 455. 

This Court should deny Petitioner’s request for an evidentiary hearing. 

III. CONCLUSION

Based on the foregoing and for the reasons set forth in the Return, Respondent 

respectfully requests that this Court deny the request for an evidentiary hearing, deny the 

Petition and dismiss the case.

 2 Moreover, as detailed in the Return, even if Petitioner were authorized to receive 

the funds, the sanctions imposed by the DHO for the infraction cannot warrant habeas 

relief because they do not implicate a protected liberty interest. (Doc. 11 at 11, n. 4.) 

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RESPECTFULLY SUBMITTED: April 24, 2018.

ELIZABETH A. STRANGE

First Assistant United States Attorney

District of Arizona

s/ Denise Ann Faulk

Denise Ann Faulk

Assistant U.S. Attorney

Copy of the foregoing served 

via U.S. Mail on April 24, 2018, to:

Gino Carlucci

12233-081

Tucson-AZ-Tucson-USP-Low-SC

Satellite Camp

P.O. Box 24549 

Tucson, AZ 85734

Prisoner Pro Se

s/ P. Vavra

/ Response to Request for Evidentiary Hearing 

Case 4:18-cv-00051-RM-DTF Document 13 Filed 04/24/18 Page 5 of 5