2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

9-28-2011 

# M a ur ic io M a t e r on v

. D a v id E bb e r t

P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 11-2872

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w . v i l l a no v a . e du/thir dc ir c uit_2011

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 2011 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w . v i l l a no v a . e du

. R e c omme nde d C it a t ion

" M a ur ic io M a t e r on v

. D a v id E b be r t " (2011). 2011 D e cisio n s . P a pe r 456. h tt p://d i g it alc ommon s .l a

w . v i l l a no v a . e du/thir dc ir c uit_2011/456

### CLD
- 276 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 11

- 2872

___________ MAURICIO MATERON ,

Appellant

v. WARDEN DAVID EBBERT, Allenwood FCI

____________________________________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 11

- 0648 ) District Judge: Honorable Sylvia H

. Rambo

____________________________________ 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 August 25, 2011 Before: RENDELL, FUENTES and SMITH , Circuit Judges

(Opinion filed : September 28, 2011 )

_________ OPINION

_________ PER CURIAM Pro se appellant Mauricio Materon appeals the D istrict Court ‟ s order denying his petition for a writ of habeas corpus under 28 U.S.C. § 2241. For the reasons discussed below, we will summarily affirm the District Court‟s judgment

. See 3d Cir. L.A.R. 27.4;2



### I.O.P. 10.6. Materon is a federal prisoner. On October 12, 2010, Officer Morales observed Materon speaking on a cellular phone in his cell. Officer Morales confiscated the phone, and Materon was charged with possession, manufacture, or introduction of a hazardous tool in violation of Code 108, 28 C .F.R. § 541.13, Table 3 . After a hearing, the Unit Disciplinary Committee found Materon guilty of the Code 108 offense. The Discipline Hearing Officer (DHO) noted that Materon did not dispute that he had possessed a cell phone, and held that this constit uted a violation of Code 108. More specifically, the DHO concluded that cell phones qualify as “hazardous tools” because they have “been used to arrange rendezvous for escapes” and “to arrange contraband introductions.” This interpretation, the DHO, stre ssed, was consistent with a memorandum issued by Warden Donna Zickefoose. Materon was sentenced to 30 days of disciplinary segregation, disallowance of 40 days of good conduct time, forfeiture of 540 days of non

- vested good conduct time, and loss of vario us privileges.
In April 2011 , Materon filed a habeas petition pursuant to 28 U.S.C. § 2241 in the District Court. Materon claimed that the DHO had violated his due process rights by finding him guilty of the Code 108 offense. According to Materon, cell phones did not qualify as “hazardous tools” under 108; rather, his conduct was punishable under only Code 305, which prescribes less

- severe penalties than Code 108. The District Court denied Materon‟s petition, and Materon filed a timely notice of appeal to this Court. 1

1 Challenges by federal prisoners to the loss of good time credits are properly brought under § 2241, see Queen v. Miner , 530 F.3d 253, 254 n.2 (3d Cir. 2009), and a certificate of appealability3



### Federal prisoners have a liberty interest in statutory good time credits. See Vega , 493 F.3d at 317 n.4. W he n a prison disciplinary hearing may result in the loss of good time credits, the prisoner is entitled to “ (1) advance written not ice of the disciplinary charges; (2) an opportunity

. . . to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the

reaso ns for the disciplinary action.” Superintende nt v. Hill , 472 U.S. 445, 454 (1985). In addition, the disciplinary deci sion must be supported by “ some evidence ”

— that is, “ any evidence in the record that could support the conclusion reached by the disciplinary board .” Id. at 455

- 5 6. Materon presents a single argument

— that Code 305, not Code 108, covers his offense. Code 108 prohibits “[p] ossession, manufacture, or introduction of a hazardous tool ( Tools most likely to be used in an escape or escape attempt or to serve as weapons capable of doing s erious bodily harm to others; or those hazardous to institutional security or personal safety; e.g., hack

- saw blade) .” 28 C.F.R. § 541.13 , Table 3. Code 305, meanwhile, prohibits “[p] ossession of anything not authorized for retention or receipt by the in mate , and not issued to him through regular channels.” Id. We agree with the District Court that Materon‟s argument lacks merit. The DHO determined, in accordance with a memorandum issued by the warden, that cell phones were “hazardous tools” because the y could be used to facilitate escape or to engage in
is not required to appeal the denial of a fe deral prisoner‟s § 2241 petition, see Burkey v. Marberry , 556 F.3d 142, 146 (3d Cir. 2009). We have jurisdiction under 2 8 U.S.C. § 1291 and 28 U.S.C. § 2253(a). We exercise plenary review over the D istrict Court‟ s legal conclusions and apply a clearly er roneous standard to its findings of fact

. Vega v. United States , 493 F.3d 310, 314 (3d Cir. 2007).4



### other illegal activities, and thus represent “a threat to the security and orderly running of the institution.” Therefore, the DHO concluded, Materon‟s conduct was punishable
under Code 108. This inter pretation is consistent with the language of Code 108, and we thus discern no error in the DHO‟s analysis

. See Chong v. Dist. Dir., INS , 264 F.3d 378, 389 (3d Cir. 2001) (“An agency‟s interpretation of its own regulation is „controlling

. . . unless it is plainly erroneous or inconsistent with the regulation.‟” (quoting Bowles v. Seminole Rock & Sand Co. , 325 U.S. 410, 414 (1945)). Accordingly, w e will summarily affirm the District Court ‟ s order denying Materon‟s § 2241 petition

. See 3d Cir. L

. A

. R

. 27.4 ; I.O.P. 10.6.