United States District Court, M.D. Pennsylvania
Christopher C. Conner, Chief Judge
pending before the court is a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241 (Doc. 1), filed by
petitioner Thomas Hancock (“Hancock”), an inmate
confined at the United States Penitentiary, Allenwood,
Pennsylvania. Hancock contends that his due process rights
were violated in the context of a disciplinary hearing held
at the at the Federal Correctional Institution in Morgantown,
West Virginia (“FCI-Morgantown”). For the reasons
set forth below, the court will deny the habeas petition.
is serving a 100-month sentence for conspiracy to distribute,
and possession with intent to distribute, 100 grams or more
of a mixture and substance containing a detectable amount of
heroin. (Doc. 1, at 5-7, Public Information Inmate Data). His
projected release date is January 1, 2023, via good conduct
release time. (Id.)
instant petition, Hancock challenges disciplinary proceedings
that were held at FCI-Morgantown in which he was found guilty
of violating code 108, possession of a hazardous tool - cell
phone. (Doc. 1). Hancock contends that he did not receive
proper notice of the offense, and he challenges the
sufficiency of evidence. Hancock claims that constructive
possession cannot apply to this charge because there is no
evidence that physically connects him to the smuggled cell
phone. (Id. at 2-3). For relief, Hancock seeks
expungement of the incident report, and restoration of
forty-one (41) days good conduct time. (Id. at 4).
28, 2017, a staff member at FCI-Morgantown issued incident
report 3015333 charging Hancock with possession of a
hazardous tool - cell phone. (Doc.7-1, at 13, Incident
Report, §§ 1-16). The incident is described as
On July 24, 2017, at approximately 10:45 p.m., staff
discovered a ZTE cell phone in the possession of [another
inmate]. While the Operation's Lieutenant was taking a
photograph of the cell phone, at 10:56 p.m., an incoming
“Whatsapp video call” from phone number [ending
in] 0665 appeared on the screen. On July 25, 2017, at
approximately 8:06 a.m., I reviewed TRUVIEW, revealing the
phone number [ending in] 0665 only appears on the inmate list
of Thomas Hancock, Register Number 60821-007. This cell phone
was issued Evidence Control Number (ECN) MRG-17-0080. This
phone number is not associated with any other inmate in the
Bureau of Prisons in any way. Hancock has been at FCI
Morgantown since June 02, 2016. This is a re-write.
(Doc. 7-1, at 13, § 11). On July 28, 2017, the
investigating lieutenant delivered a copy of the incident
report to Hancock. (Id. at 13-14, §§
14-16, 22-24). After receiving the incident report, Hancock
responded, “I have no statement.” (Id.
at 14, § 24).
31, 2017, Hancock appeared before the Unit Discipline
Committee (“UDC”), and again made no statement.
(Doc. 7-1, at 13, §§ 17-21). Due to the severity of
the charge, the UDC referred the incident report for a
hearing before a Discipline Hearing Officer
(“DHO”), with a recommendation that sanctions be
imposed. (Id. at 13, §§ 19-20).
31, 2017, a staff member informed Hancock of his rights at
the DHO hearing and provided him with a copy of the
“Inmate Rights at Discipline Hearing” form. (Doc.
7-1, at 16, Inmate Rights at Discipline Hearing). Hancock was
also provided with a “Notice of Discipline Hearing
before the Discipline Hearing Officer (DHO)” form.
(Doc. 7-1, at 17, Notice of Discipline Hearing before the
Discipline Hearing Officer (DHO)). Hancock signed both forms,
did not request representation by a staff member, but elected
to call a witness on his behalf. (Doc. 7-1, at 16-17).
August 17, 2017, a DHO hearing was conducted. (Doc. 7-1, at
9-12). During the August 17, 2017 hearing, the DHO confirmed
that Hancock received advanced written notice of the charge,
that he had been advised of his rights before the DHO, he did
not request representation by a staff member, and waived the
right to call the previously requested witness. (Id.
at 9). The DHO again advised Hancock of his rights, Hancock
indicated that he understood them, and that he was ready to
proceed with the hearing. (Id. at 10). During the
DHO hearing, Hancock denied the charge and stated, “No
I didn't use that phone.” (Id. at 9, 11).
addition to the incident report and investigation, the DHO
considered documentary evidence including the chain of
custody log, two digital photo spreadsheets, a memorandum
dated July 24, 2017 from Lieutenant Montgomery, a four-page
TRUVIEW report, and seven emails between Hancock and other
individuals. (Doc. 7-1, at 10, § III(D)). The DHO noted
that Lieutenant Montgomery's memorandum stated that while
taking a photograph of the cell phone, “an incoming
‘Whatsapp video call' from phone number [ending in]
0665 appeared on the screen.” (Id. at p. 13,
§ V). The DHO noted that photographic evidence of the
cellular phone which displays the incoming video call and the
phone number in which the call originates supports his
decision. (Id. at pp. 12, 14, § V). The DHO
also noted that, in accordance with his rights, Hancock chose
to make no statements during the disciplinary process.
(Id. at § V). The DHO found that if Hancock was
innocent of the charge, he would have provided a statement to
refute the charge. (Id. at p. 11, § V).
Ultimately, the DHO determined that Hancock's defense,
denial of the charge and that the cell phone was found on
another inmate, did not outweigh the evidence presented by
the reporting officer. (Id.) The DHO stated,
“[t]he DHO does not believe that it is mere coincidence
that a phone number associated only with [Hancock], was
observed to be calling this cellular phone and this
information confirms that you in fact did possess this
cellular phone at some point during your incarceration at FCI
Morgantown and used it to communicate with this phone
consideration of the evidence, the DHO found that Hancock
committed the code 108 offense of possession of a hazardous
tool or other electronic device (cellular phone). (Doc. 7-1,
at 10-11, § V). The DHO sanctioned Hancock with
forty-one (41) days loss of good conduct time, thirty (30)
days disciplinary segregation, and loss of commissary and
phone privileges for one (1) year. (Id. at 11,