United States District Court, Middle District of Pennsylvania
Magistrate Judge Carlson
Sylvia H. Rambo United States District Judge
Before the court is a report and recommendation of the magistrate judge in which he recommends that Petitioner Jacob Howell’s petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 be granted. The Respondent has filed objections to the report and recommendation to which Howell has responded. the matter is ripe for resolution. For the reasons set forth below, this court will reject the report and recommendation of the magistrate judge.
On or about April 13, 2012, a Bureau of Prisons officer discovered two metal weapons in Howell’s prison cell which was also occupied by another inmate. An incident report was filed and a Disciplinary Hearing Officer (DHO) heard the case on May 2, 2012. At the hearing, Howell’s defense is purportedly as follows:
The report is false. It’s got to be false. I’m not looking to do nothing. I just moved there the night before. I was in the common area for nine months. I understand I’m responsible for what’s in the cell. My cellmate said he cleaned the cell. If it was mine, I’d take responsibility for it.
(Doc. 5, Ex. G.) Thereafter, the DHO concluded that Howell was guilty of possessing a weapon based on the constructive possession theory.
On November 23, 2012, Howell filed a petition for writ of habeas corpus challenging this finding. His allegations are that his due process rights were violated during the disciplinary hearing for the following reasons:
(1) the DHO lacked “some evidence” to support the finding that Howell violated code 104, possession of a weapon, when weapons were discovered in his prison cell, . . .
(2) the BOP did not provide Howell with a staff representative . . .; and
(3) the DHO hearing took place beyond the two-week deadline required by BOP regulations.
(Doc. 1, pp. 3 - 6.) Respondent filed a response (Doc. 5) and Petitioner filed a traverse (Doc. 6). The magistrate judge filed his report and recommendation on July 21, 2014 (Doc. 8).
The report and recommendation addressed only the “some evidence” argument made by Howell. The magistrate judge opined that a DHO “must either consider potentially exculpatory evidence provided by an inmate or provide an adequate explanation of a refusal to examine potentially exculpatory evidence.” (Doc. 8 at p. 1.) The magistrate judge further opined that “due process is not satisfied . . . if a DHO engages in a wholly unexplained failure to examine or consider such exculpatory evidence.” (Id.) The magistrate judge suggests that the exculpatory evidence that should have been considered is (a) Howell had been moved from general population ...