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Moscato v. Federal Bureau of Prisons

October 22, 1996






On Appeal from the United States District Court For the Middle District of Pennsylvania

D.C. Civ. No. 94-cv-00551

Before: BECKER, STAPLETON, and MICHEL, Circuit Judges *fn*

BECKER, Circuit Judge.

Argued July 26, 1996

Filed October 22, l996)


Phillip Moscato, a federal prison inmate, filed this petition for habeas corpus relief in federal district court challenging the constitutionality of an institutional disciplinary hearing that resulted in certain adverse findings and the loss of his good-time credits. Before reaching the district court, Moscato pursued his administrative remedies, but was barred from proceeding to the final level of administrative review because of his failure to file a timely appeal. This appeal requires us to determine what effect such a procedural default has upon a federal prisoner's request for habeas corpus relief under 28 U.S.C. Section(s) 2241. We hold that a prisoner's procedural default of his administrative remedies bars judicial review of his habeas petition unless he can show cause for the default and prejudice attributable thereto. Because Moscato committed a procedural default of his administrative remedies by filing an untimely appeal and because he cannot show cause for the default, we are barred from review of the merits of his Section(s) 2241 petition. Accordingly, we affirm the district court's dismissal of Moscato's petition, although we do so on different grounds.


On April 8, 1993, Moscato's unit at the Allenwood Federal Prison Camp was subjected to a shakedown. According to Moscato, when he returned to his living area, he discovered that his possessions had been trampled and discarded on the floor. Moscato grew angry and, although the nature of his behavior remains in dispute, all parties agree that officers soon removed Moscato to the Lieutenant's office and charged him with Engaging in or Encouraging Others in a Group Demonstration. See 28 C.F.R. Section(s) 541.13 - Table 3 (Code 212) (1993). That same night, Moscato was removed from the Federal Prison Camp and transported a few miles away to administrative segregation at Low Security Correctional Institution ("LSCI") Allenwood.

On May 4, 1993, Moscato received a disciplinary hearing at LSCI Allenwood. Prior to the hearing, he requested that Correctional Officer David Ortiz and three inmates be called as witnesses on his behalf. The disciplinary hearing officer refused to call any of Moscato's witnesses, stating that Ortiz was an adverse witness whose testimony was already before the hearing officer as part of the investigative report, and that the inmate witnesses, imprisoned at a different site, were unavailable for testimony. In lieu of the inmates' oral testimony, the prison solicited from them brief statements that supported Moscato's recollection of the incident. *fn1 At the hearing, Moscato read a statement on his own behalf and denied engaging in or encouraging a group demonstration. The hearing officer also reviewed statements from the five correctional officers who were present at the time of the incident. No other witnesses appeared for either side.

After reviewing all of the evidence, the hearing officer found Moscato guilty of Attempting to Engage in or Encouraging Others in a Group Demonstration, see 28 C.F.R. Section(s) 541.13(b) - Table 3 (Code 212A), rather than the substantive act itself. According to the disciplinary hearing report, the sanctions imposed included: (a) disciplinary confinement; (b) forfeiture of 45 days statutory good time; (c) withholding of 10 days statutory good time; and (d) termination of eligibility for camp good time effective April 8, 1993. The hearing officer also recommended that Moscato receive a disciplinary transfer. Prior to this incident, Moscato had 269 days of statutory good-time credit.

Moscato was informed of his right to appeal. It is not clear from the record whether he appealed first to the Warden. It is clear, however, that he filed a timely appeal to the Bureau of Prisons, Northeast Regional Director, seeking restoration of his good time credits and expungement of his incident report, and that, on June 29, 1993, the appeal was denied. Moscato attempted to appeal this decision to the Bureau's central office, the Office of General Counsel, but his appeal was not received until August 14, 1993, 16 days after the 30 day deadline. *fn2 The General Counsel denied the appeal as untimely. Moscato submitted a second appeal to the General Counsel on October 12, 1993; it too was denied as untimely.

On April 14, 1994, Moscato filed an in forma pauperis petition requesting habeas corpus relief pursuant to 28 U.S.C. Section(s) 2241 on the grounds that the Bureau of Prisons *fn3 had denied him due process at the disciplinary hearing and that the evidence was insufficient to support the hearing officer's determination of misconduct. Moscato initially requested a rehearing of his disciplinary charge and restoration of his good-time credits. The U.S. Attorney opposed the petition on the merits but also argued that Moscato's untimely appeal to the General Counsel barred judicial review of his petition for relief. In reply, Moscato asked that the decision of the hearing officer be reversed and that the incident report be expunged from his prison record.

By consent of the parties, the case was submitted to a magistrate judge pursuant to 28 U.S.C. Section(s) 636(c). The magistrate judge dismissed the petition on the merits without discussing whether the claims were barred due to a procedural default. In rendering this decision, the magistrate judge noted that Wolff v. McDonnell, 418 U.S. 539 (1974), permitted the use of written statements in lieu of live testimony where the witnesses are "unavailable." The magistrate judge reasoned that because Moscato's witnesses were not imprisoned with Moscato at LSCI Allenwood, they were unavailable, and thus use of their written statements was not in error. The magistrate judge also held that due process did not require the hearing officer to call Officer Ortiz because Ortiz was an adverse witness who had submitted a memorandum describing the incident. See 28 ...

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