The opinion of the court was delivered by: Judge Sylvia H. Rambo
Petitioner Edward Barber, an inmate formerly confined at the Schuylkill Federal Prison Camp in Minersville, Pennsylvania ("FCI Schuylkill"), filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, alleging that his due process rights were violated during a disciplinary hearing in which he was found guilty of making, possessing, or using intoxicants. Barber requests that the court expunge his disciplinary record, restore his previous status of minimum custody, and order his placement in "his previous housing status camp." For the reasons that follow, the petition will be denied.
Barber arrived at FPC Schuylkill on March 20, 2007. (Doc. 5 at 2.) On July 19, 2007, Officer Craig Patrick discovered a twenty ounce Barq's brand soda bottle containing a light brown liquid in Barber's locker while securing Barber's property. (Doc. 5-2 attach. 4.) Officer Patrick identified the locker as Barber's based on personal papers and receipts located inside the locker. (Id.) As a result of the suspicious contents of the bottle, Officer Patrick conducted an alcohol content test on the liquid using the Alco-Sensor III, a "handheld (pocket sized) breath alcohol testing device designed to read both breath alcohol concentration (BrAC) or estimate blood alcohol concentration (BAC)." (See id.; Dfndts. ex. 2 from December 17, 2008 Hearing.) The Alco-Sensor III, which had been calibrated in accordance with the Operator's Manual on July 2, 2007, showed a positive reading of .091 alcohol concentration for the suspicious brown liquid discovered by Officer Patrick. (Doc. 5-2 attach 4; see Dfndts. ex. 1 from December 17, 2008 Hearing.)
In response to the discovery of a bottle possessing intoxicants, Officer Patrick issued an incident report to Barber for violating Bureau of Prisons ("BOP") disciplinary code 222, which prohibits making, possessing, or using intoxicants. (Doc. 5 at 2.) Barber received a copy of this incident report on July 19, 2007 at approximately 9:20 p.m. The report explained that on July 19, 2007 at approximately 10:15 a.m., Officer Patrick discovered a bottle in Barber's locker containing a light brown liquid that tested positive for intoxicants. (Id. at 2--3.)
On July 24, 2007, the Unit Discipline Committee ("UDC") held a hearing on Barber's incident report. (Id. at 3.) Barber received a "Notice of Discipline Hearing Before the (DHO) Department of Justice" that same day along with an "Inmate Rights at Discipline Hearing" form from the BOP. (Doc. 5-2 attach. 3.) Barber expressed his intent not to call witnesses on the "Notice" form and waived his right to a staff representative at the UDC hearing. (Id.) At the UDC hearing, Barber testified that the bottle contained apple cider vinegar. (Doc. 5-2 attach. 4.) The DHO did not find Barber's testimony credible and ultimately determined that Barber had violated disciplinary code 222. (Id.) The DHO based these findings on the "eye witness account of a staff member," concluding that the "greater weight of the evidence and reporting officer's account" justified holding Barber accountable for violating the code. (Id.) Barber received a disallowance of Good Conduct Time, a sentence of disciplinary segregation, and restrictions on phone, visitation, and commissary privileges for the violation. (Id.)
On July 21, 2008, Barber filed a petition for writ of habeas corpus and supporting memorandum of law, alleging that his due process rights had been violated because the BOP failed to provide adequate notice prior to the hearing and the DHO based his findings on insufficient evidence. (Doc. 1.) Respondent filed a response to the petition on August 12, 2008. (Doc. 5.) Barber filed a traverse on August 25, 2008. (Doc. 6.) On November 7, 2008, the court ordered a hearing to clarify the evidentiary foundation for the DHO's ruling. (Doc. 11.) The court conducted the hearing on December 17, 2008. (Doc. 16.) The court is now prepared to consider the merits of the petition.
Barber filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, alleging that his due process rights were violated because (1) he did not receive proper notice of the charges against him and (2) the DHO lacked an evidentiary basis for finding that he violated code 222.
A. The BOP Disciplinary Process
The BOP outlines its disciplinary process in the Code of Federal Regulations, Title 28, §§ 541.10--541.23. (See Doc. 5 at 7.) These regulations dictate the manner in which disciplinary action may be taken if BOP staff have reason to believe that an inmate has committed a prohibited act. (Id.) Where an inmate raises such suspicion, the Code first requires staff to file an incident report and conduct an investigation pursuant to 28 C.F.R. § 541.14. After the investigation, staff must refer the incident to the UDC for an initial hearing. 28 C.F.R. § 541.15. Once referred to the UDC, the UDC may reach a finding regarding whether the inmate committed the prohibited act or may refer the case to the DHO for a further hearing. 28 C.F.R. § 541.15(f). The Code empowers the DHO to dismiss any charge, to find that the inmate committed the prohibited act, and to impose any available sanction for the act. 28 C.F.R. § 541.18.
The Code, however, mandates that the DHO conduct the hearing in accordance with specific procedures. See 28 C.F.R. § 541.17. Specifically, the regulations require that the warden of the institution give the accused inmate written notice of the charges no less than twenty-four hours before the DHO hearing. 28 C.F.R. § 541.17(a). The warden must, additionally, provide the inmate with a full time staff member to represent him or her at the DHO hearing. 28 C.F.R. 541.17(b). At the DHO hearing, the inmate has a right to make a statement and present documentary evidence and to submit names of requested witnesses, whom may testify or present documents. 28 C.F.R. § 541.1(c). In addition, the Code requires the DHO to call witnesses who have information ...