The opinion of the court was delivered by: Magistrate Judge Susan Paradise Baxter
Pending before the Court is a petition for a writ of habeas corpus filed by Pedro Figueroa pursuant to 28 U.S.C. § 2241. He is challenging a disciplinary action taken against him when he was incarcerated at the Federal Correctional Institution ("FCI"), Fort Dix, New Jersey, in which he was found to have committed the prohibited act of Assaulting Another (Minor), in violation of Code 224. Petitioner alleges that he was denied his due process rights because: (1) he did not receive his incident report until four days after the staff member who had accused him of the violation had reported the incident; and, (2) he was not permitted to call a witness (his cellmate) during the Discipline Hearing Officer ("DHO") hearing. As relief, he seeks an order directing that his incident report be expunged so that he may be restored the good time credit he lost as a sanction.
For the reasons set forth below, the Court will deny the petition.
A. Relevant Factual Background
Petitioner is a federal prisoner who is currently housed at FCI McKean, which is located within the Western District of Pennsylvania. On November 6, 2009 (while he was at FCI Fort Dix), he was issued an incident report for Possession of a Hazardous Tool, in violation of Code 108, and for Assaulting Another (Minor), in violation of Code 224. The Reporting Officer was R. Santiago, and he described what occurred as follows:
On 11-6-2009 at approximately 01:00 AM in room 304 inmate Figueroa #56594-066 stood up out of his bed B03-042L at the same time that [his cellmate] that was in the room push [sic] me out of the way and ran out of the room. During this time inmate Figueroa #56594-066 also push [sic] me out of his way with the back of his hands, holding a cell phone in his right hand running out of the room down the hallway into the stair well. Operations Lieutenant and the compound officer were notified. Inmate Figueroa #56594-066 was escorted to the Lieutenant's office. (Incident Report, ECF No. 14-3 at 14).
The incident report was written by staff on November 6, 2009, and it was delivered to Petitioner four days later, on November 10, 2009. (Id. at 14-15). Petitioner denied committing the charged infractions. (Id. at 15). Lt. C. Lewars, the investigating staff member, determined that "there is insufficient evidence to substantiate a code 108 due to the fact the cell phone staff stated he observed was never recovered[,]" but he did recommend that the charge related to the minor assault (Code 224) of Officer Santiago proceed to the next phase of the disciplinary process. (Id.)
The Unit Discipline Committee ("UDC") hearing was held on November 12, 2009, and the UDC referred the charges to the DHO for further hearing. Petitioner advised BOP staff that he wanted to call his cellmate to testify at his DHO hearing. (Notice of DHO Hearing, ECF No. 14-3 at 19).
In his Affidavit In Support of Habeas Corpus, Petitioner states that the following occurred regarding his DHO hearing, which was presided over by Anthony Boyce:
3. On November 23, 2009 the . DHO came to the segregated housing unit and interviewed myself and my cell mate [name redacted] who was charged with the same offenses.
4. During the interview I explained to the DHO what transpired on the night of November 6, 2009; and that was that officer R. Santiago came to my room and woke me and my cell mate up . out of our sleep, at which time he ordered us out of our beds and demanded to search us, . at which time we complied with such order.
5. After searching each of us, officer R. Santiago ordered myself and [my cellmate] to stand outside of the room and face the wall while he searched the room.
6. Approximately fifteen to twenty minutes passed and a Lt. Wright approached the scene with two officers while myself and [my cellmate] was facing the wall; at which time I requested that Lt. Wright provide me with my sneakers because I was barefoot and the floor was cold and he did so.
7. Following my request officer R. Santiago exited the room and asked Lt. Wright to speak to him privately because it was a sensitive matter having to do with a possible cellphone.
8. Upon officer R. Santiago and Lt. Wright's return[ ] the two remaining officers were ordered to escort myself and my cell mate to the lieutenant's office; at which time we were placed in segregation for a possible minor assault on staff and possible possession of a cellphone.
9. Upon hearing my side of the incident the DHO suspended the hearing for lack of evidence and in order to retrieve ...