UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

 :

OWEN ROBINSON, :

 : Civil Action No.

Petitioner, : 11-0258 (JBS)

 :

v. : 

 : MEMORANDUM OPINION

WARDEN KIRBY, :

 :

Respondent. :

 :

SIMANDLE, District Judge:

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

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

(“Petition”). This Petition will be denied for lack of merit, for

the following reasons: 

1. Petitioner, presently confined at FCI Fairton, filed his

Petition asserting that his loss of vested and non-vested goodconduct 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 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

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)

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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 certain inmates

known to Petitioner, who were initially sanctioned for possession

of illegal cell phones, were recently granted these very remedies

administratively.

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

as meritless, in numerous actions under § 2241. Recently, the same

challenges were dismissed in Pittman v. Zickefoose, Civil Action

No. 10-5057 (RMB) (D.N.J.) (filed Sep. 27, 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

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

2

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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 1

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. 2

at 8. 

b. Petitioner’s challenges are substantively without

merit . . . .

 [Footnote from Pittman]. An inmate’s possession of a 1

cell phone has been construed 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-conduct-credit sanction was expressly analogized by

the BOP to the then-existing 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. 

 [Footnote from Pittman]. Petitioner attributes this 2

quote to the person designated 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 Court cannot rule out

the possibility that Petitioner referred to the FCCP warden as

“Director of the Bureau of Prisons.” 

3

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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:

In certain limited circumstances a

claim of constitutional magnitude is

raised where a prisoner alleges (1)

that information is in his file, (2)

that the information is false, and

(3) that it is relied upon to 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].

4

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

supplied). In light of the “arguendo” language 3

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) (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 good-conduct 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

 [Footnote from Pittman]. Williams was decided before the 3

Supreme Court's ruling in Wilkinson v. Dotson, 544 U.S. 74

(2005), the rationale of which seems to outright bar all § 2241

challenges seeking expungement.

5

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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). 

4

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. 5

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

 [Footnote from Pittman]. Since inmates possess a liberty 4

interest in having their 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. 

 [Footnote from Pittman deleted] 5

6

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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

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

7

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Handbook”); accord Instant Matter, Docket Entry No. 6

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 goodconduct 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

 [Footnote from Pittman]. In addition to the definition 6

provided in Code 108 included in the FCCP Inmate Information

Handbook, the Handbook also explains that:

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

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. 

8

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erroneous nor inconsistent with BOP 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).7

 The considerations of and determinations made by the 7

Pittman court are shared throughout the federal judiciary. See,

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

9

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

the prison records of – and revoke sanctions against – certain

inmates originally sanctioned for possession of illegal cell

phones, such decisions by the BOP do not lend support to

Petitioner’s challenges. Such actions by the BOP would render

those 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 claims moot, but it

did not render his claims meritorious).8

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

as disciplinary segregation, transfer to another prison facility,

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. 

 Indeed, Petitioner in this matter expressly cited the 8

relief given to Hudson, even though Judge Kugler, in his decision

finding Hudson’s claims moot, expressly stressed that Hudson’s

habeas challenges were without merit. See Hudson, 2010 U.S.

Dist. LEXIS 120936, at *2-3 (“[E]ven if the Petition has not been

rendered moot . . . (i.e., if Petitioner's sanctions under the

BOP Codes 199 or 108 remained in force), Petitioner's challenges

would be subject to dismissal [on merits]”).

10

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loss of telephone privileges or loss of visitation privileges

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.9

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

appropriate Order accompanies this Memorandum Opinion.

s/ Jerome B. Simandle 

JEROME B. SIMANDLE

U.S. District Judge

Dated: March 23, 2011

 No statement made in this Memorandum Opinion shall be 9

construed as expressing this Court’s position on substantive or

procedural validity or invalidity of such challenges.

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