United States District Court, M.D. Pennsylvania
WILLIAM J. NEALON, District Judge.
Petitioner, Clifford Liabhen, an inmate currently confined in the United States Penitentiary at Allenwood-Low Security, White Deer, Pennsylvania, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. He alleges that his due process rights were violated during a disciplinary hearing after which he was found guilty of the prohibited acts of "Disposing of any Item During a Search or Attempt to Search" in violation of Code 115, and "Refusing to Obey an Order of any Staff Member" in violation of Code 307. (Doc. 1, Pet.). The petition is ripe for consideration and, for the reasons that follow, will be denied.
Petitioner is currently serving a term of imprisonment for his conviction in the Middle District of North Carolina. He is scheduled for release on July 12, 2017, via good conduct time. On January 21, 2013, while confined in the Schuylkill Federal Correctional Institution ("FCI-Schuylkill") in Minersville, Pennsylvania, Petitioner was stopped by staff in the laundry area. Officer Switay and Counsel or Kranzel entered the camp, and Officer Switay began to perform a pat-down search of Petitioner. As he began the search, Petitioner ran out of the unit. Although both Switay and Kranzel ordered him to stop, Petitioner continued to run. As Officer Switay chased after Petitioner, he observed him throw something into the food service area. After Petitioner stopped running near the Unicor Warehouse, he was handcuffed and placed in the Special Housing Unit. A search of the food service area where Petitioner threw the item revealed a Samsung cell phone which was still open.
The cellphone was later examined and revealed that calls had been made to two (2) telephone numbers on Petitioner's phone listing. The persons listed for these numbers were his spouse and a friend. Also found on the cellphone was a photograph of Petitioner holding dumbbells while in the weight room at FCI-Schuylkill.
On January 21, 2013, Incident Report No. 2399874 was issued to Petitioner charging him with Code 108, 115, 198 and 307 violations (possession of a cell phone; disposing of an item during a search; interfering with staff; and refusing an order). He was provided with a copy of the report at 6:00 p.m. that evening. The incident report was suspended, pending referral of the matter to the FBI for possible prosecution. The FBI subsequently released the matter and the incident report was reactivated with Petitioner being questioned on February 22, 2013. At that time, he made no statement in response to the charges. Due to the severity of the charges, the Unit Disciplinary Committee ("UDC") referred the charges to a Disciplinary Hearing Officer ("DHO") for disciplinary proceedings.
On February 27, 2013, Petitioner was provided with a copy of the "Notice of Discipline Hearing Before the DHO" form advising him of the charges against him and the right to have a staff representative and witnesses present at the DHO hearing. (Doc. 5-1 at 20). He signed the form indicating that he wanted to have Ms. Lucas as his staff representative and did not wish to have witnesses. He was also provided with and signed the "Inmate Rights at Discipline Hearing" form on the same date, specifically advising him that he had the following rights at the DHO hearing:
1. The right to have a written copy of the charge(s) against [him] at least 24 hours prior to appearing before the [DHO];
2. The right to have a full-time member of the staff who is reasonably available to represent [him] before the [DHO];
3. The right to call witnesses (or present written statements of unavailable witnesses) and to present documentary evidence in [his] behalf, provided institutional safety would not be jeopardized;
4. The right to present a statement or to remain silent. [His] silence may be used to draw an adverse inference against [him]. However, [his] silence alone may not be used to support a finding that [he] committed a prohibited act;
5. The right to be present throughout the discipline hearing except during a period of deliberation or when institutional safety would be jeopardized. If [he] elect[ed] not to appear before the DHO, [he] may still have witnesses and a staff representative appear on [his] behalf;
6. The right to be advised of the DHO's decision, the facts supporting that decision, except where institutional safety would be jeopardized, and the DHO's disposition in writing; and
7. The right to appeal the decision of the DHO by means of the Administrative Remedy Procedure to the Regional Director within 20 calendars days of ...