UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

_______________________________

 :

PEDRO RAMIREZ, :

 : Civil Action No.

Petitioner, : 11-0189 (RBK)

 :

v. : 

 : MEMORANDUM OPINION

DONNA ZICKEFOOSE, :

 :

Respondent. :

_______________________________:

 

This matter comes before the Court upon Petitioner’s filing of

an application seeking habeas relief, pursuant to 28 U.S.C. § 2241

(“Petition”), and it appearing that:

1. Petitioner filed the instant Petition asserting that his loss

of vested and non-vested good-conduct credits, as well as

other sanctions, was improperly imposed upon him when: (a)

Petitioner was apprehended by his prison officials being in

possession of an illegal cell phone; and (b) Petitioner’s 1

violation was qualified as a “greatest severity” offense (and

corresponding sanctions were imposed under the BOP Codes 108

and 199). See Docket Entry No. 1. Petitioner asserted that

he had no notice as to the fact that possession of illegal

 Petitioner asserts that his challenges are currently in 1

the process of administrative exhaustion. The exhaustion aspect,

however, is excused. 

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cell phone was a disciplinary infraction of “greatest

severity,” and – therefore – he should have been charged and

sanctioned for committing only a “moderate” violation (under

the BOP Code 305) rather than for a violation of “greatest

severity.” See id. Petitioner, hence, seeks revocation of

imposed sanctions and expungement of his prison record,

asserting that a certain inmate known to Petitioner, who was

initially sanctioned for possession of an illegal cell phone,

was recently granted these very remedies administratively.

2. Petitioner’s challenges are identical to those dismissed, as

meritless, in numerous actions. Recently, the same challenges

were dismissed in Pittman v. Zickefoose, Civil Action No. 10-

5057 (RMB) (D.N.J.) (filed on Sep. 27, 2010, closed on Oct.

20, 2010). Specifically, the court in Pittman addressed an

inmate’s challenges that he was unduly charged with (and

sanctioned for) the “greatest severity” Code 108 violation

(instead of the “moderate severity” Code 305 violation) in

connection with the prison officials of F.C.C. Petersburg

(“FCCP”), Virginia, apprehension of the inmate while he was in

possession of an illegal cell phone. See id. Docket Entry No.

6. The Pittman court observed:

a. Petitioner’s challenges are two-fold. First, he

seek expungement of his prison records from the fact

that he committed the very infraction underlying his

sanction. Second – and, seemingly, in support of

his expungement claim – Petitioner asserts that the

imposition of this loss-of-good-conduct-credit

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sanction violated his rights because, at the time of

Petitioner’s committing his infraction, the overall

impression held by the FCCP general population (and

by Petitioner, in particular) was that - if an

inmate’s illegal possession of a cell phone were

detected - the violator would get sanctions other

than loss of good-conduct credit. Thus, Petitioner

concedes that the FCCP officials put the inmates on

notice that cell phone possession was a sanctionable

infraction, but he alleges that the FCCP officials

were obligated but failed to expressly correlate

that particular misconduct to Code 108 sanctions,

which allowed the inmates (and Petitioner, in

particular) to believe that such infraction would be

sanctioned under Code 305, a more lenient provision

than Code 108. Petitioner states that a certain BOP 2

official eventually clarified . . . that the BOP had

begun construing the possession-of-cell-phone

misconduct as Code 108 infraction in order “to

incorporate technological advances that were not

present when the [original] rule was drafted.” Id. 3

 An inmate’s possession of a cell phone has been construed 2

by the BOP as a Code 108 violation long before Petitioner’s

infraction. See, e.g., Donahue v. Grondolsky, 2010 U.S. App.

LEXIS 19097, at *1-2 (3d Cir. Sept. 13, 2010) (affirming sanction

imposed in 2007, i.e., two years prior to Petitioner’s

infraction, upon an inmate found in possession of a cell phone

SIM card, where that inmate’s Code 199 loss-of-good-conductcredit sanction was expressly analogized by the BOP to the thenexisting sanction imposed for Code 108 possession of a cell

phone). In the same vein, Petitioner’s incident report and the

administrative hearing charge notice both stated, in no ambiguous

terms, that Petitioner committed a Code 108 violation and was

charged accordingly, i.e., with a Code 108 violation committed by

his act of possessing of a hazardous tool: the cell phone. See

Instant Matter, Docket Entry No. 1-1, at 39 and 40. 

 Petitioner attributes this quote to the person designated 3

by him as the “Director of the Bureau of Prisons.” See Instant

Matter, Docket Entry No. 1, at 8. However, the exhibits attached

to the Petition indicate that Petitioner’s administrative appeals

at Regional and Central Appeal levels were dismissed as untimely

rather than on merits, see Instant Matter, Docket Entry No. 1-1,

at 31 and 35; and – in any event – this Court is not entirely

clear as to why a “director” of the BOP rather than a Central

Office counsel would respond to Petitioner’s inquiry. Thus, the

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at 8. 

b. Petitioner’s challenges are substantively without

merit . . . .

i. With regard to Petitioner’s request for

expungement, it shall be noted that the

Court of Appeals stressed its doubts as to

whether an expungement claim could,

altogether, be raised in a habeas action. 

See Williams v. Fed. Bureau of Prisons, 85

Fed. App’x 299 (3rd Cir. 2004). In

Williams, the inmate filed a § 2241 habeas

petition claiming that the BOP improperly

refused to delete information contained in

his prison file. See id. at 303. In

response, the Court of Appeals observed:

We have never had to decide whether

to endorse the right of expungement

announced in Paine v. Baker, 595 F.2d

197 (4th Cir. 1979), and other

Circuit Courts of Appeals have

expressly questioned its precedential

value. [See] Johnson v. Rodriguez,

110 F.3d 299, 308-09 n. 13 (5th Cir.

1997). Nevertheless, [the inmate in

Williams] argues that his . . .

prison file expungement claim are

meritorious under Paine v. Baker. 

There, the Court of Appeals for the

Fourth Circuit announced that, in

limited circumstances, state

prisoners have a federal due process

right to have “prejudicial erroneous

information expunged from their

prison files.” [Paine,] 595 F.2d at

202. The court held:

I n c e r t a i n l i m i t e d

circumstances a claim of

constitutional magnitude is

raised where a prisoner alleges

(1) that information is in his

file, (2) that the information

Court cannot rule out the possibility that Petitioner referred to

the FCCP warden as “Director of the Bureau of Prisons.” 

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is false, and (3) that it is

r e l i e d u p o n t o a

constitutionally significant

degree.

Id. at 201. [The inmate now] argues

that he can assert Paine v. Baker

expungement claims in a § 2241 habeas

petition. Even if we assume arguendo

that [the inmate] can assert a Paine

v. Baker expungement claim in a §

2241 habeas petition, it is

nevertheless clear that he is not

entitled to relief [of expungement

of] his prison file [where the

information on file is factually

correct].

Williams, 85 Fed. App’x at 303 (emphasis

supplied). In light of the “arguendo” 4

language used by the Court of Appeals in

Williams and the clarifications provided,

later on, by the Supreme Court in

Wilkinson, Petitioner’s expungement claim

appears not cognizable in a habeas action. 

Moreover, even if presumed cognizable,

this claim is facially without merit and

should be summarily dismissed simply

because Petitioner here concedes that he,

in fact, committed the infraction

reflected in his prison file and, hence,

that information [that he possessed an

illegal cell phone] cannot be false.

ii. Furthermore, the BOP’s decision to sanction

Petitioner for his misconduct facially met due

process requirements. When a disciplinary

penalty affecting the length of a sentence is

imposed, the Due Process Clause requires that

“some evidence” be produced to support the

decision to sanction. See Superintendent v.

Hill, 472 U.S. 445, 457 (1985); see also Young

v. Kann, 926 F.2d 1396, 1402-03 (3d Cir. 1991)

 Williams was decided before the Supreme Court's ruling in 4

Wilkinson v. Dotson, 544 U.S. 74 (2005), the rationale of which

seems to outright bar all § 2241 challenges seeking expungement.

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(applying Hill standard to a federal prisoner's

due process challenges). Since the “some

evidence” standard requires only that the

decision not be arbitrary or not without any

support in the record, see, e.g., Gaither v.

Anderson, 236 F.3d 817, 819 (7th Cir. 2000)

(citing Hill, 472 U.S. at 457); Brown v.

Fauver, 819 F.2d 395 (3d Cir. 1987), and

Petitioner here concedes that he, in fact,

committed the very infraction for which he was

sanctioned, the BOP’s decision to impose a

disciplinary penalty could not run afoul of the

requirements posed by the Due Process Clause.

iii. In the event Petitioner sought to assert that

he had due process rights to keep his goodconduct credit and be sanctioned by other

means, Petitioner’s position is, too, without

merit. Petitioner has no “pre-vested” liberty

interest in any certain amount of good-conduct

credit, see Barber v. Thomas, 130 S. Ct. 2499

(2010); rather, he has to actually earn them. 

See 18 U.S.C. § 3624 (plainly stating that an

inmate good time credit must be earned); see

also Sample v. Morrison, 406 F.3d 310 (5th Cir.

2005) (the statute grants the BOP the power to

determine whether or not the inmate has

complied with institutional disciplinary

rules); accord Lynce v. Mathis, 519 U.S. 433,

445 (1997) (the inquiry is limited to an

inmate’s eligibility for reduced imprisonment

and does not envision any fixed guarantee of

release). 

5

 Since inmates possess a liberty interest in having their 5

good-conduct credit vested if such credit is earned, see Wolff v.

McDonnell, 418 U.S. 539, 555-57 (1974); Levi v. Holt, 192 Fed.

App’x 158 (3d Cir. 2006), due process requires, if a disciplinary

hearing resulted in loss of good-conduct credit: (a) 24 hours

advance written notice of the disciplinary charges; (b) an

opportunity to testify, call witnesses and present documentary

evidence; and (c) a written statement by the fact-finder as to

the evidence relied upon and reasons for the disciplinary action. 

See Wolff, 418 U.S. at 564-566. However, since the minutiae of

Petitioner’s administrative hearing at the FCCP were not even

mentioned – moreover challenged – in the Petition, the Court need

not construe the Petition as raising any Wolff-related aspects. 

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iv. Petitioner’s position is equally without merit

as to his assertion that he knew he was

committing a disciplinary violation but –

without knowing the particular sanction he

would be facing if his infraction were detected

- he was prevented from determining whether

his decision to commit the infraction would be

“worthy,” to him, of the sanctions that he

might suffer. While Petitioner has due process

rights to notice as to general categories of

the acts prohibited, he has no due process

right to notice as to any specific

administrative sanction he might face if his

violation gets detected. See, e.g., Adams v. 6

Gunnell, 729 F.2d 362, 368-70 (5th Cir. 1984)

(a prisoner's right to notice means that the

rules must give a person of ordinary

intelligence notice of the actions prohibited);

accord Cook v. Warden, 241 Fed. App’x 828, 2007

U.S. App. LEXIS 14772 (3d Cir.) (per curiam)

(dismissing the inmate’s § 2241 challenges to

vagueness of a BOP’s Code and finding that the

notice was sufficient where the inmate was

provided with a prison handbook informing him

of the categories of acts proscribed, even

though different prison handbooks detailed the

proscribed activities with different degree of

particularity), cert. denied 552 U.S. 1051

(2007); Cotten v. Ward, 190 Fed. App’x 701, 702

(10th Cir. 2006) (affirming dismissal of § 2241

challenges where the prison rule was

“sufficiently clear and unambiguous to provide

 Petitioner’s cursory references to the Administrative 6

Procedure Act cannot be amount to a viable challenge because

“BOP's internal agency guideline[s]” are not subject to the

notice and comment requirements of the APA. See Reno v. Koray,

515 U.S. 50, 61 (1995); see also Royal v. Tombone, 141 F. 3d 596,

600 (5th Cir. 1998) (rejecting prisoner's argument that BOP's

change in policy was invalid because it was not promulgated in

accordance with the APA, as agency guidelines are “promulgated

internally and may be altered at will by the BOP”); Koray v.

Sizer, 21 F. 3d 558, 562 (3d Cir. 1994) (internal agency

guidelines may be altered by the BOP at will and are not subject

to the notice and comment requirements of the APA), rev'd on

other grounds sub nom Reno v. Koray, 515 U.S. 50 (1995)

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fair notice to inmates of what conduct [was]

prohibited”); see also Eason v. Owen, 2010 U.S.

Dist. LEXIS 82153, at *6 (D.S.C. Apr. 29, 2010)

(dismissing an inmate’s § 2241 challenges

asserting that possession of a cell phone

should be deemed a “lesser included offense” of

Code 108 and, thus, subjected to a lesser

sanction under another BOP Code). This is so

because, unlike with regard to criminal

statutes, no high degree of precision is

required of disciplinary regulations,

especially as to the sanctions entailed. See

Meyers v. Alldredge, 492 F.2d 296, 310 (3d Cir.

1974) (“[d]ue process undoubtedly requires

certain minimal standards of specificity in

prison regulations [but] the degree of

specificity required of such regulations is

[not] as that required of . . . criminal

sanctions”); Hadden v. Howard, 713 F.2d 1003,

1008 (3d Cir. 1974) (administrative notice is

generally deemed given “unless fair notice was

clearly lacking”); compare United States v.

Batchelder, 442 U.S. 114, 123 (1979) (noting,

in dictum, that “vague sentencing provisions

may pose constitutional questions if they do

not state with sufficient clarity the

consequences” of the violation, but for the

purposes of a criminal statute, not a

disciplinary regulation). Here, Petitioner

outright concedes that, at all pertinent times,

he was on notice that possession of a cell

phone was a proscribed offense and, moreover,

a sanctionable misconduct. In addition,

Petitioner concedes that, at all pertinent

times, he was aware of the exact language of

Code 108, which prohibits “[p]ossession . . .

of a hazardous tool [i.e., the] tools most

likely to be used in an escape or escape

attempt.” See <<http://www.bop.gov/locations/

institutions/pem/PEX_aohandbook.pdf>> at 51

(FCCP “Inmate Information Handbook”); accord 7

 In addition to the definition provided in Code 108 7

included in the FCCP Inmate Information Handbook, the Handbook

also explains that:

Contraband is . . . any item or thing not authorized or

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Instant Matter, Docket Entry No. 1, at 8-9

(indicating that Petitioner was given a copy of

the Handbook). Consequently, Petitioner was

put on notice, by the very language of Code

108, that Code 108 sanctions could be applied

to him for the misconduct of possession of a

hazardous tool in the form of a cell phone. 

See Robinson v. Warden, 250 Fed. App’x 462 (3d

Cir. 2007) (per curiam) (rejecting the inmate’s

argument that Code 108 was too vague for the

purposes of providing notice of the Code’s

applicability to cell phone infractions).

Petitioner’s allegations to that effect will,

therefore, be dismissed.

v. Finally, in the event Petitioner invites the

Court to find abuse of discretion in the BOP’s

construction of Code 108 as covering the

misconduct of cell phone possession, the Court

declines the invitation: federal courts have

long established that the BOP’s construction

was reasonable. See, e.g., Ausberry v.

Grondolsky, 2008 U.S. Dist. LEXIS 110521

(D.N.J. Sept. 9, 2008) (where the BOP

sanctioned an inmate with Code 108 loss of

good-conduct credit upon analogizing the

inmate’s illegal MP3 player to a cell phone,

the court rejected the inmate’s lack-of- notice

challenges finding that the language of Code

108 provided sufficient notice as to the entire

category of such electronic devices) (relying

Robinson for the observation that the BOP's

definition of a cell phone as hazardous tool

within the meaning of Code 108 was neither

plainly erroneous nor inconsistent with BOP

issued by the institution, received through approved

channels, or purchased through the Commissary. All

staff are alert to the subject of contraband and make

an effort to locate, confiscate, and report contraband

in the institution. Any item in an inmate’s personal

possession must be authorized and a record of the

receipt of the item should be kept in the inmate’s

possession. . . . 

<<http://www.bop.gov/locations/institutions/pem/PEX_aohandbook.

pdf>> at 12. 

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regulations, and citing Chong v. Dist. Dir.,

264 F. 3d 378, 389 (3d Cir. 2001), for the

umbrella proposition that the BOP's

interpretation of its own regulation is

“controlling . . . unless it is plainly

erroneous or inconsistent with the

regulation”); see also Eason, 2010 U.S. Dist.

LEXIS 82153, at *5-6 (“[e]ven though Code 108

does not specifically include cell phones in

the examples of hazardous tools, the BOP . . .

consistently viewed them as such because they

‘permit an inmate to circumvent the telephone

monitoring system, and may be used as a tool

which coordinates or facilitates escape and the

introduction of illicit materials or drugs’”)

(relying on Robinson and the statement made by

the BOP National Inmate Appeals Administrator

Harrell Watts, and citing, inter alia, Irvin v.

Fed. Bureau of Prisons, 2009 U.S. Dist. LEXIS

54103 (D.S.C. 2009); Marin v. Bauknecht, 2007

U.S. Dist. LEXIS 83514 (D.S.C. 2007);

Rivera-Lind v. Pettiford, 2006 U.S. Dist. LEXIS

76677 (D.S.C. 2006), and Carey v. Williams,

2006 U.S. Dist. LEXIS 77092 (S.D. W. Va.

2006)); accord Hudson v. Edmonson, 848 F.2d 682

(6th Cir. 1988) (relying on Hill for the

umbrella holding that selection of a particular

disciplinary sanctions based on some evidence

should not be second-guessed by the courts). 

Consequently, Petitioner’s assertions that the

BOP improperly construed its Code 108 as

applicable to cell phones (that is, if such

assertions were intended) are, too, without

merit and will be dismissed. 

Pittman v. Zickefoose, Civil Action No. 10-5057, Docket Entry

No. 6 (citations to docket entries made in Pittman omitted,

original footnotes preserved and reproduced in this Memorandum

Opinion as footnotes in the above-replicated block

quotation).8

 The considerations of and determinations made by the 8

Pittman court are shared by the entire federal judiciary. See,

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3. Moreover, in the event the BOP elected to expunge the prison

record of – and revoke sanctions against – a certain inmate

originally sanctioned for possession of illegal cell phone,

such decision by the BOP does not lend support to Petitioner’s

challenges. Such actions by the BOP would render that 9

inmate’s habeas challenges moot, rather than legally valid. 

See, e.g., Hudson v. Zickefoose, 2010 U.S. Dist. LEXIS 120936

(D.N.J. Nov. 15, 2010) (where the BOP expunged the inmate’s

record and revoked sanctions based on his illegal possession

of a cell phone, the BOP’s actions rendered the inmate’s

e.g., Hicks v. Yost, 377 Fed. App’x 223, 224-25 (3d Cir. 2010)

(“Contrary to what [the inmate] appears to argue, the absence of

the term ‘cell phone’ in the text of Code 108 did not prevent the

BOP from interpreting that provision to include this item. 

Moreover, [the inmate] has not shown that the BOP's

interpretation of Code 108 is plainly erroneous or inconsistent

with that provision”) (citing Chong, 264 F.3d at 389); McGill v.

Martinez, 348 Fed. App’x 718 (3d Cir. 2009) (same); Franco v.

Adler, 2011 U.S. Dist. LEXIS 20501 (E.D. Cal. Mar. 1, 2011)

(same); Thorn v. Shartle, 2011 U.S. Dist. LEXIS 1334 (N.D. Ohio

Jan. 6, 2011) (same); Thomas v. Phillips, 2010 U.S. Dist. LEXIS

96681 (S.D.W. Va. Aug. 25, 2010) (same, dismissing, inter alia,

expungement claim). If a practical conclusion could be distilled

from this body of law, this conclusion appears to be that

possession of illegal cell phones by inmates became a prevalent

hazardous practice. That conclusion, in turn, lends additional

support to the BOP’s interpretation of Codes 108 and 199 as

applicable to illegal cell phone possession. 

 Hypothetically, such challenge could give rise to a civil 9

rights claim in the event the BOP expunges the records of – and

revokes sanctions against – a certain group of individuals, e.g.,

Caucasian inmates, while refusing to make the same allowances to

a protected suspect class of inmates, e.g., African-American or

Hispanic-American inmates. However, the facts asserted in the

Petition do not indicate any basis for such equal protection

challenges. Therefore, the Court need not reach this issue.

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claims moot, but it did not render his claims meritorious).

4. Finally, Petitioner’s challenges based on such sanctions as

disciplinary segregation, transfer to another prison facility,

loss of telephone privileges and akin cannot be litigated in

a habeas action. See Leamer v. Fauver, 288 F.3d 532 (3d Cir.

2002); Ganim v. Federal Bureau of Prisons, 235 Fed. App’x 882

(3d Cir. 2007); Bronson v. Demming, 56 Fed. App'x 551, 553-54

(3d Cir. 2002). Therefore, these challenges are dismissed for

lack of jurisdiction, without prejudice to Petitioner’s

raising these claims in a civil complaint.10

For the foregoing reasons, the Petition will be denied. An

appropriate Order accompanies this Memorandum Opinion.

s/Robert B. Kugler 

ROBERT B. KUGLER

 United States District Judge

Dated: March 21, 2011

 No statement made in this Memorandum Opinion shall be 10

construed as expressing this Court’s position on substantive or

procedural validity or invalidity of such challenges.

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