NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

 

:

JOSE HERNANDEZ-ZAPATA, :

:

Petitioner, :

:

v. :

:

PAUL SCHULTZ, :

:

Respondents. :

 :

Hon. Jerome B. Simandle

Civil No. 10-3994 (JBS)

OPINION

APPEARANCES:

JOSE HERNANDEZ-ZAPATA, #73278-079

F.C.I. Fairton

P.O. Box 420

Fairton, New Jersey 08320

Petitioner Pro Se

SIMANDLE, District Judge

Jose Hernandez-Zapata, a federal inmate confined at FCI

Fairton in New Jersey, filed a Petition for a Writ of Habeas

Corpus under 28 U.S.C. § 2241 seeking restoration of 40 days of

good conduct time forfeited as a disciplinary sanction. For the

reasons expressed below and because the face of the Petition and

attachments show that Petitioner is not entitled to relief, this

Court will summarily dismiss the Petition. 

I. BACKGROUND

Petitioner challenges the loss of 40 days of earned good

conduct time imposed by the Bureau of Prisons (“BOP”) as a

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disciplinary sanction while Petitioner was confined at FCI

Fairton. 

Petitioner executed the Petition on July 30, 2010. The

Clerk received it on August 5, 2010. Petitioner asserts the

following facts. On March 12, 2009, Petitioner shared an eightperson cell with seven other inmates. On that date, staff

conducted a random search of Petitioner’s cell. The incident

report, which is attached to the Petition, states:

[On March 12, 2009, w]hile conducting a

random search of Cell 243-246 (8 man cell) in

HBL, I found a homemade weapon. The weapon

was located in a common area on top of a

locker in the back of the cell. The locker

is the far left locker next to the window. 

It was made of harden[ed] plastic and was

sharpened to a point at one end. The weapon

was approximately 6 1⁄2 inches long had black

tape as a handle and had a black lanyard

attached. The occupants of this cell are: 

Hernandez-Zapata . . . .

(Docket Entry #1, p. 6.)

Petitioner testified at a disciplinary hearing on March 26,

2009. The Discipline Hearing Officer (“DHO”) Report dated March

31, 2009, is attached to the Petition. The report summarizes

Petitioner’s statement:

The inmate had no documentation to present at

the DHO Hearing. After being read the

incident report by the DHO the inmate stated,

My locker is in the front. It was found in

the back. It’s not mine. Inmate made no

complaints about procedural errors.

(Docket Entry #1, p. 9.)

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The DHO found Petitioner guilty of code 104, Possession of a

Weapon, based on the following findings:

The DHO finds that on March 12, 2009, at

about 6:21 pm . . . you did commit the

prohibited act of Possession of a Weapon,

code 104. The specific evidence relied upon

to support this finding was the written

statement of the reporting staff member, M.

Haubois, who states on 3/12/09 at about 6:21

p.m., he found a home made weapon in a common

area on top of a locker in your cell. It was

made from hardened plastic and was sharpened

to a point . . . . Additionally, the DHO

relied upon as evidence the photograph of the

weapon. You denied the weapon was yours. 

The DHO explained to you during the hearing

that contrary to your claim, inmates are

accountable for contraband found in their

cell and inmates have the responsibility of

ensuring their areas are free of contraband. 

In addition you provided no evidence, other

than your statement that it’s not mine.

Therefore, having considered all relevant

evidence, the DHO finds that the greater

weight of the evidence supports the finding

that you committed the prohibited act of

Possession of a Weapon, code 104.

(Docket Entry #1, p. 10.)

The DHO sanctioned Petitioner with 60 days in disciplinary

segregation and the loss of 40 days of good conduct time. (Id.)

Petitioner asserts that he exhausted administrative remedies

by appealing the disciplinary sanctions to the Warden, the

Regional Office, and the Central BOP Office. The final decision

of Harrell Watts, Administrator of National Inmate Appeals, dated

December 2, 2009, is attached to the Petition:

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You appeal the March 26, 2009, decision of

the Discipline Hearing Officer (DHO) in which

you were found to have committed the

prohibited act of Possession of a Weapon

(Code 104). Specifically, you question how

you could be charged for possession of a

weapon when the weapon was not found in your

possession but in a common area on top of a

locker that was not even yours. You request

the incident report be expunged.

Our review of your disciplinary proceedings

indicates substantial compliance with Program

Statement 5270.07, Inmate Discipline and

Special Housing Units. The DHO’s decision

was based upon the greater weight of the

evidence that is detailed in Section V of the

DHO report. We find it reasonable for the

DHO to have made this determination. Records

indicate you appeared before the DHO, were

advised of your rights, and made a statement. 

The DHO gave greater weight of the evidence

to the written statement of the reporting

staff member and the photograph of the

weapon. P.S. 5270.07 stipulates that inmates

are responsible for keeping their area free

of contraband. Since the contraband was

found in a common area of your assigned cell

that was accessible to you, you were held

responsible for the contraband. Although you

dispute the charge, we concur the evidence is

sufficient to support the finding. Based on

our review of the disciplinary record, we

find the required disciplinary procedures

were substantially followed, the greater

weight of the evidence supports the decision,

and the sanctions imposed were appropriate

for the offense and in compliance with

policy. Your appeal is denied.

(Docket Entry #1, p. 13.)

In the Petition before this Court Petitioner argues:

[T]here was insufficient evidence to support

a finding of constructive possession of the

knife . . . . To be liable under a theory of

constructive possession, there must be

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affirmative evidence to support “an inference

that the individual knowingly has both the

power and the intention at a given time to

exercise dominion and control over a thing

either directly or through another person or

persons. Constructive possession necessarily

requires both dominion and control over an

object and knowledge of that object’s

existence.” United States v. Jenkins, 90 F.

3d 814, 817-818 (3d Cir. 1996 (quoting United

States v. Iafelice, 978 F. 2d 92, 96 (3d Cir.

1992)) . . . . “Dominion and control are not

established, however, by ‘mere proximity to

the [contraband] or mere presence on the

property where it is located or mere

association with the person who does control

the [contraband] or the property.’” Id.

(quoting United States v. Brown, 3 F. 3d 673,

680 (3d Cir. 1993)). It is undisputed that

the weapon was found in the room and that

Petitioner was assigned to the cell in

question. However, Petitioner and seven (7) 

other inmates were assigned to this cell. 

The area where the weapon was found is not

controlled by Petitioner, nor is it his area

in the cell. See Exhibit B. There was no

competent evidence relied upon by the

Disciplinary Hearing Officer (“DHO”) that

amounted to “some evidence” that Petitioner

knew about the existence of the weapon, that

Petitioner exercised or attempted to exercise

dominion and control of the weapon, nor was

there any evidence where an inference could

be drawn that Petitioner exercised dominion

and control through any of the other cell

occupants. This lack of sufficient evidence

is underscored by the fact that the inmate

whose locker the weapon was found not found

liable in this matter, and along with one

other individual had the incident report

expunged from their record and were sent to

the Drug program. Thus, in effect, the BOP

violated not only Petitioner’s rights under

the Due Process clause of the Constitution,

there was an affirmative violation of the

Equal Protection Clause as sell. Even under

the lesser standard of review of “some

evidence” so set by the Supreme Court in

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Superintendent v. Hill . . . and under the

BOP’s standard of review that the DHO’s

decision be “based upon at least some facts

and, if there was conflicting evidence, to be

‘based on the greater weight of the

evidence.’” See Scott v. Martinez, 2009 U.S.

Dist. Lexis 23738 (quoting 28 C.F.R.

541.17(f), this sanction cannot stand because

it contravenes the Constitution’s Due Process

and Equal Protection Clauses.

(Docket Entry #1, pp. 2-4.)

Petitioner seeks a writ directing the BOP to restore the 40

days of good conduct time and to credit him for each day he spent

in administrative disciplinary segregation. (Docket Entry #1, p.

4.) 

II. DISCUSSION

A. Jurisdiction

Under 28 U.S.C. § 2241(c), habeas jurisdiction “shall not

extend to a prisoner unless . . . [h]e is in custody in violation

of the Constitution or laws or treaties of the United States.” 

28 U.S.C. § 2241(c)(3). A federal court has subject matter

jurisdiction under § 2241(c)(3) if two requirements are

satisfied: (1) the petitioner is “in custody” and (2) the

custody is “in violation of the Constitution or laws or treaties

of the United States.” 28 U.S.C. § 2241(c)(3); Maleng v. Cook,

490 U.S. 488, 490 (1989). The federal habeas statute requires

that the petitioner be in custody “under the conviction or

sentence under attack at the time his petition is filed.” Lee v.

Stickman, 357 F.3d 338, 342 (3d Cir. 2004) (quoting Maleng, 490

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U.S. at 490-91). This Court has subject matter jurisdiction

under § 2241 to consider the instant Petition because Petitioner

challenges the loss of good conduct time on federal grounds, and

he was incarcerated in New Jersey at the time he filed the

Petition. See Woodall, 432 F.3d at 242-44. 

B. Standard of Review

“Habeas corpus petitions must meet heightened pleading

requirements.” McFarland v. Scott, 512 U.S. 849, 856 (1994). 

Habeas Rule 2(c) requires a habeas petition to “specify all the

grounds for relief available to the petitioner,” “state the facts

supporting each ground,” “state the relief requested,” be

printed, typewritten, or legibly handwritten, and be signed under

penalty of perjury. 28 U.S.C. § 2254 Rule 2(c), applicable to §

2241 through Rule 1(b). Habeas Rule 4 requires a judge to sua

sponte dismiss a petition without ordering a responsive pleading

“[i]f it plainly appears from the petition and any attached

exhibits that the petitioner is not entitled to relief in the

district court.” 28 U.S.C. § 2254 Rule 4, applicable to § 2241

through Rule 1(b). Thus, “Federal courts are authorized to

dismiss summarily any habeas petition that appears legally

insufficient on its face.” McFarland, 512 U.S. at 856. 

Dismissal without the filing of an answer has been found

warranted when “it appears on the face of the petition that

petitioner is not entitled to relief.” Siers v. Ryan, 773 F.2d

7

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37, 45 (3d Cir. 1985), cert. denied, 490 U.S. 1025 (1989); see

also McFarland, 512 U.S. at 856; United States v. Thomas, 221

F.3d 430, 437 (3d Cir. 2000) (habeas petition may be dismissed

where “none of the grounds alleged in the petition would entitle

[the petitioner] to relief”).

C. Due Process

The Due Process Clause of the Fifth Amendment of the

Constitution of the United States provides: “No person shall . .

. be deprived of life, liberty, or property, without due process

of law.” U.S. Const. amend. V. Federal inmates possess a

liberty interest in good conduct time. See Wolff v. McDonnell,

418 U.S. 539, 555-57 (1974); Young v. Kann, 926 F. 2d 1396, 1399

(3d Cir. 1991); Levi v. Holt, 192 Fed. App’x. 158 (3d Cir. 2006). 

Where a prison disciplinary hearing results in the loss of good

conduct time, due process requires: (1) 24 hours advance written

notice of the disciplinary charges; (2) a hearing with the right

to testify, call witnesses and present documentary evidence, when

not unduly hazardous to correctional goals; and (3) a written

statement by the factfinder as to the evidence relied on and

reasons for the disciplinary action. See Wolff, 418 U.S. at 564-

566. In addition to the requirements of Wolff, “revocation of

good time does not comport with the minimum requirements of

procedural due process unless the findings of the prison

disciplinary [officer] are supported by some evidence in the

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record.” Superintendent, Massachusetts Correctional Institution,

Walpole v. Hill, 472 U.S. 445, 454 (1985) (citations and internal

quotation marks omitted); see also Griffin v. Spratt, 969 F.2d

16, 19 (3d Cir. 1992); Thompson v. Owens, 889 F.2d 500, 501 (3d

Cir. 1989). The Supreme Court explained the “some evidence”

standard in this passage of Hill:

We hold that the requirements of due process

are satisfied if some evidence supports the

decision by the prison disciplinary board to

revoke good time credits. This standard is

met if there was some evidence from which the

conclusion of the administrative tribunal

could be deduced. Ascertaining whether this

standard is satisfied does not require

examination of the entire record, independent

assessment of the credibility of witnesses,

or weighing of the evidence. Instead, the

relevant question is whether there is any

evidence in the record that could support the

conclusion reached by the disciplinary

[officer]. We decline to adopt a more

stringent evidentiary standard as a

constitutional requirement. Prison

disciplinary proceedings take place in a

highly charged atmosphere, and prison

administrators must often act swiftly on the

basis of evidence that might be insufficient

in less exigent circumstances. The

fundamental fairness guaranteed by the Due

Process Clause does not require courts to set

aside decisions of prison administrators that

have some basis in fact. Revocation of good

time credits is not comparable to a criminal

conviction, and neither the amount of

evidence necessary to support such a

conviction, nor any other standard greater

than some evidence applies in this context. 

Hill, 472 U.S. at 455-456 (citations and internal quotation marks

omitted); see also Thompson, 889 F.2d 500.

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Petitioner argues that the BOP violated due process by

revoking his good conduct time credits without “some evidence”

that he was guilty of possession of a weapon. He contends that

the “some evidence” standard has not been satisfied because there

was no evidence “that Petitioner knew about the existence of the

weapon, that Petitioner exercised or attempted to exercise

dominion and control of the weapon, nor was there any evidence

where an inference could be drawn that Petitioner exercised

dominion and control through any of the other cell occupants.” 

(Docket Entry #1, p. 3.) He relies on United States v. Jenkins,

90 F. 3d 814 (3d Cir. 1996), for the proposition that he cannot

be found guilty of possession of contraband without evidence that

he had knowledge of the contraband and he exercised dominion and

control over the contraband. However, Jenkins involved a

defendant’s direct appeal of his conviction by a jury for 

possession of cocaine with intent to distribute, in violation of

21 U.S.C. § 841(a)(1). The Third Circuit reversed because “the

evidence did not establish the decisive nexus of dominion and

control between the defendant and the contraband.” Id. at 820. 

The Third Circuit held that the evidence of possession of cocaine

by defendant was insufficient because it did not “amount to more

than close proximity to the drugs and acquaintance with the

residents of the apartment in which the drugs were found.” Id.

at 821. 

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Petitioner’s reliance on Jenkins is misplaced since Jenkins

involved a criminal conviction for drug possession and Petitioner

was not convicted of a crime involving possession, but a prison

disciplinary charge. The standard of proof in a criminal case is

“beyond a reasonable doubt,” and the constitutionally required

standard of proof in a prison disciplinary hearing is merely

“some evidence” of possession. “The fundamental fairness

guaranteed by the Due Process Clause does not require courts to

set aside decisions of prison administrators that have some basis

in fact.” Hill, 472 U.S. at 455-56. 

For example, in Hill, the Supreme Court reversed the state

court’s determination that the evidence of a disciplinary

infraction was constitutionally deficient because it did not

support an inference that more than one person had assaulted the

victim; the Supreme Court held that the evidence before the

disciplinary board satisfied the “some evidence” standard:

The disciplinary board received evidence in

the form of testimony from the prison guard

and copies of his written report. That

evidence indicated that the guard heard some

commotion and, upon investigating, discovered

an inmate who evidently had just been

assaulted. The guard saw three other inmates

fleeing together down an enclosed walkway. 

No other inmates were in the area . . . . 

The Federal Constitution does not require

evidence that logically precludes any

conclusion but the one reached by the

disciplinary board. Instead, due process in

this context requires only that there be some

evidence to support the findings made in the

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disciplinary hearing. Although the evidence

in this case might be characterized as

meager, and there was no direct evidence

identifying any one of the three inmates as

the assailant, the record is not so devoid of

evidence that the findings of the

disciplinary board were without support or

otherwise arbitrary.

Hill, 472 U.S. at 455-457 (citations omitted).

Similarly, in Santiago v. Nash, 224 Fed. App’x 175, 177 (3d

Cir. 2007), Santiago brought a § 2241 petition challenging the

loss of good conduct time where he was found guilty of possession

of a hazardous tool after a guard found a tattoo gun needle taped

to the frame of Santiago’s bunk. At the disciplinary hearing,

Santiago denied knowledge of the needle and claimed there was

insufficient evidence to find that he possessed the needle. The

Third Circuit rejected the argument: 

We agree with the District Court that some

evidence existed to support the DHO’s

conclusions. Although Santiago argues that

he had no knowledge of the needle’s presence,

it was found within an area that Santiago was

responsible for keeping contraband-free. 

Further, in the absence of direct evidence

indicating an inmate’s guilt of possession,

the ‘some evidence’ standard may be satisfied

by application of the constructive possession

doctrine in limited circumstances where a

small number of inmates are potentially

guilty of the offense charged.

Santiago v. Nash, 224 Fed. App’x at 177 (citations omitted);

accord Reynolds v. Williamson, 197 Fed. App’x 196 (3d Cir. 2006)

(where habeas petitioner shared cell with another inmate and

corrections officer found a 10-inch sharpened rod in the sink

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drain of the cell and petitioner denied knowledge of weapon and

did not have the necessary plumbing tools to retrieve the hidden

shank from the drain, Third Circuit held that there was some

evidence that he possessed the shank). 

In this case, eight inmates shared Petitioner’s cell and

there was no direct evidence implicating Petitioner. This Court

holds that a one in eight chance or a 12.5% probability 

constitutes “some evidence” that Petitioner possessed the weapon. 

Compare Hill, 472 U.S. at 455-457 (where three inmates could have

assaulted victim, there was some evidence that Hill was the

assailant); Shelby v. Whitehouse, 399 Fed. App’x 121 (7th Cir.

2010) (where Shelby shared cell with four other inmates and one

inmate had admitted that drugs found in the cell were his,

disciplinary decision finding Shelby guilty of possession was

supported by “some evidence,” since collective responsibility

among prisoners is not unconstitutional); Flannagan v. Tamez, 368

Fed. App’x 586, 590 (5th Cir. 2010) (there was “some evidence”

where “contraband was found in [cell] that Flannagan share[d]

with only five other inmates”); Hamilton v. O’Leary, 976 F. 2d

341, 346 n.1 (7th Cir. 1992) (where the most likely scenario was

that one in eight prisoners had access to vent where weapons were

found (12.5% probability) and the record before the disciplinary

hearing board showed that there was a one in four probability,

there was “some evidence” of petitioner’s guilt of possession of

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weapon) with Broussard v. Johnson, 253 F. 3d 874, 877 (5th Cir.

2001) (where the only evidence that petitioner possessed bolt

cutters was the fact that they were found in the kitchen where he

worked, to which 100 inmates had access, the evidence was

insufficient to satisfy “some evidence” standard). Because the

weapon was found in a common area of the cell Petitioner shared

with only seven other inmates, there was “some evidence” that he

possessed the weapon, and the BOP did not deprive Petitioner of

good conduct time credits without due process.1

Petitioner also argues that the BOP violated his right to

equal protection of the laws because “the inmate whose locker the

weapon was found [on was] not found liable in this matter, and

along with one other individual had the incident rep[]ort

expunged from their record.” (Docket Entry #1, pp. 3-4.) The

equal protection claim fails for two reasons. First, unless 

Petitioner presented an equal protection claim to the BOP when he

appealed the disciplinary action to the Warden, Regional Director

and Central Office, the claim was not administratively exhausted 

and the final administrative decision does not show that

Petitioner presented an equal protection claim. Moreover, 

Petitioner has not asserted facts showing that these two inmates

were similarly situated to him, nor has he asserted facts showing

 Petitioner raises no other due process challenge and 1

nothing before this Court indicates that the requirements of Wolf

were not satisfied.

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that BOP officials acted with discriminatory purpose. See

McCleskey v. Kemp, 481 U.S. 279, 292 (1987) (person “who alleges

an equal protection violation has the burden of proving the

existence of purposeful discrimination”) (citation and internal

quotation marks omitted); Plyler v. Doe, 457 U.S. 202, 216 (1982)

(Equal Protection Clause guarantees that “all persons similarly

circumstanced shall be treated alike”); Johnson v. Horn, 150 F.3d

276, 284 (3d Cir. 1998) (to state an equal protection claim,

inmates must "allege and prove that they received different

treatment from other similarly situated individuals or groups")

(citation omitted). Petitioner’s equal protection claim

accordingly fails.

As the Petition and attachments do not show that the final

administrative decision violated the Constitution, laws or

treaties of the United States, this Court will dismiss the

Petition.

III. CONCLUSION

For the reasons set forth above, the Court dismisses the

Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 with

prejudice. 

 s/ Jerome B. Simandle 

JEROME B. SIMANDLE, U.S.D.J.

Dated: April 4 , 2011

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