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Hancock v. White

United States District Court, M.D. Pennsylvania

November 4, 2019

THOMAS HANCOCK, Petitioner
v.
WARDEN WHITE, Respondent

          MEMORANDUM

          Christopher C. Conner, Chief Judge

         Presently 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.

         I. Background

         Hancock 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.)

         In the 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).

         II. Discussion

         On July 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 follows:

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).

         On July 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).

         On July 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).

         On 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).

         In 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 number.” (Id.)

         After 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, ...


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