McClung v. Hollingsworth ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-6699
JEFFREY PRESTON MCCLUNG,
Petitioner - Appellant,
versus
LISA HOLLINGSWORTH, Warden,
Respondent - Appellee,
and
ROBERT P. SHEARIN,
Respondent.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(1:02-cv-03557-WDQ)
Argued: March 16, 2007 Decided: April 26, 2007
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Brett Alan Pisciotta, KING & ATTRIDGE, Rockville, Maryland,
for Appellant. Jennifer A. Wright, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United States
Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
-2-
PER CURIAM:
Jeffrey Preston McClung, a federal prisoner, seeks to vacate
and expunge a prison disciplinary conviction for possession of
contraband and restore the good time credits lost as a result of
that conviction. We affirm.
I.
On September 1, 2001, McClung shared a first-floor cell in a
139-inmate unit in the Federal Correctional Institution in
Cumberland, Maryland with one other inmate. At 11 p.m. that night,
Officer Donald Strain, the unit officer on duty, conducted a random
search of McClung’s cell and discovered a sharpened instrument
underneath the desk. Neither McClung nor his cellmate was present
in the cell at that time. The instrument was seven inches in
length and was made of sharpened metal with a foam handle; a
photograph of the object shows a clear resemblance to a home-made
knife. Officer Strain immediately secured the cell and the
instrument and documented the incident in a report.
Not surprisingly, this type of home-made weapon is considered
prison contraband and its possession is an offense meriting a
disciplinary proceeding. Because Officer Strain found the weapon
in McClung’s cell, McClung was brought up on disciplinary charges.
McClung’s cellmate, Richard Stach, was also charged with possession
of this weapon and convicted; Stach’s similar appeal was
-3-
unsuccessful. See Stach v. Shearin, 80 Fed. Appx. 821 (4th Cir.
2003) (unpublished).
At his disciplinary hearing, McClung denied ownership of the
weapon, arguing that it must have been planted. The hearing
officer considered McClung’s testimony, as well as Officer Strain’s
incident report, a brief memorandum from Lieutenant H. Clifton
Gray, a photograph of the weapon, and various prison rules and
regulations. Relying on the prison’s constructive possession rule,
which holds each cell occupant responsible for all contraband found
in his cell when the positive ownership of the contraband cannot be
determined, the disciplinary hearing officer found McClung guilty
of possessing a dangerous weapon. Consequently, McClung lost 41
days of good conduct time and was placed into segregated housing.
McClung challenged his disciplinary conviction by petitioning
for a writ of habeas corpus in the district court, see 28 U.S.C.
§ 2241 (2000), seeking to have his conviction vacated and expunged
and his good time credit restored. JA at 58. McClung argued that
insufficient evidence supported his conviction and that various
procedural defects in the prison hearing process violated his due
process rights. The district court granted summary judgment to the
Warden and dismissed McClung’s petition with prejudice.
We affirmed the district court with regard to McClung’s
procedural claims, finding them procedurally defaulted, but vacated
and remanded the case for an evidentiary hearing on the sufficiency
-4-
of the evidence underlying McClung’s conviction. See McClung v.
Shearin, 90 Fed. Appx. 444 (4th Cir. 2004) (unpublished).
Specifically, we directed the district court to explore McClung’s
assertion that his cell was accessible, not only to McClung and his
one cellmate, but also to any of the approximately 140 inmates in
his unit. See id. If his cell had been accessible to all inmates
in the unit, we noted, there would have been “insufficient evidence
to connect him to the weapon” arising from the constructive
possession rule. Id. at 446.
II.
On remand, at the evidentiary hearing, both sides presented
extensive evidence to the district court on the issue of the
accessibility of McClung’s cell to non-occupants. After hearing
the evidence, the district court found that McClung’s unit is not
in a state of perpetual “lock-down.” Instead, inmates’ cells
remain unlocked during the day, except during pre-set “head counts”
or if an inmate makes a special request to have his cell locked.
When inmates are not locked in their cells, no regulations restrict
them from walking through the corridors, stopping in front of cell
doors, or spending time in the common areas such as the television
or laundry rooms. They can, of course, also remain in their cells.
Prison policy states, however, that an inmate may not be in the
cell of another without an occupant present. Although the precise
-5-
number of inmates present in a unit over the day will vary --
inmates may be out, for example, at work placements or at a meal --
inmates are present in the unit, and around the unlocked cells, in
significant numbers over the course of the day.
Supervision of the inmates is performed by one correctional
officer within the unit. That officer is responsible for
maintaining the security of the unit generally, and also for
performing certain discrete tasks, notably conducting five random
cell or common area searches per shift. During those searches, the
officer cannot visually monitor the full unit. McClung introduced
evidence that there were other times during the day that the
correctional officer on duty could not observe all areas within the
unit. For example, when the officer patrolled the second floor
cells, he could not see all of the cells on the first floor.
Additionally, if the officer stepped outside the unit to enforce
the smoking policy, he would not be able to observe all areas
within the unit. The unit did not contain any automated
surveillance system to supplement the officer’s visual
observations.
McClung’s particular cell was located near the front door
leading to the unit, 20 to 30 feet away from the officer’s station,
and close to the common area television. Officer Strain discovered
the contraband underneath the desk in McClung’s cell, in an area
-6-
that even McClung called “inaccessable” [sic].* The construction
of the desk was such that a person could not slide the weapon under
the desk from the front, but would have had to lift the desk to
secret the weapon underneath. Therefore, in order to have planted
the weapon in the cell, another inmate would have had to have been
fully inside the cell for some period of time. Officer Strain
testified that on September 1, he had not seen another inmate go
into McClung’s cell, nor had McClung complained about anyone
entering his cell without his permission or asked that his cell
door be locked.
The district court concluded that McClung had presented “no
evidence that other inmates had entered his cell.” Instead, the
district court found, as a factual matter, that the cell in which
the contraband was found was the “exclusive domain” of McClung and
his cellmate. In so finding, the district court observed that the
“Due Process Clause does not require continuous lock-down as a
prerequisite to imposing punishment for joint possession of
contraband in an inmate’s cell.” Therefore, the court again
dismissed McClung’s petition with prejudice and, again, McClung
appealed.
*
We understand McClung’s comment to indicate only that the
area under the desk was not easily or immediately accessible, not
to contradict his principal argument that other inmates could have
entered his cell to plant the contraband.
-7-
III.
When an inmate brings a habeas petition to challenge the
sufficiency of the evidence underlying a revocation of his good
time credits, the requirements of due process are met when “the
findings of the prison disciplinary board are supported by some
evidence in the record.” Superintendent v. Hill, 472 U.S. 445, 454
(1985). On appeal from denial of such a habeas petition, we review
the district court’s conclusions of law de novo and its findings of
fact for clear error. Billings v. Polk, 441 F.3d 238, 243 (4th
Cir. 2006).
If a disciplinary conviction for possession of contraband is
based on the presence of contraband in a particular location, the
constructive possession rule provides “some evidence” of guilt only
when relatively few inmates have access to the area. Thus, if
McClung were correct that the record demonstrated that scores of
other inmates in the unit had access to the area of his cell in
which the weapon was discovered, the constructive possession rule
standing alone would be insufficient to provide “some evidence” to
support his conviction. But McClung is not correct.
Although he did produce evidence at the hearing to suggest
deficiencies in correctional officers’ ability to monitor the
unlocked cell doors at all times, the evidence as a whole tended to
show that gaining access to the interior of McClung’s cell, and the
area beneath the cell’s desk, would have been difficult for another
-8-
inmate. McClung’s cell was located in a particularly public area
of the unit, and the weapon was located in a particularly
inaccessible area within that cell. Furthermore, McClung provided
no evidence that showed that any other inmate had actually gained
access to his cell or that he had requested that his cell be locked
because he feared such occurrence. Given this record, we certainly
cannot say that the factual finding of the district court -- that
McClung’s cell was the “exclusive domain” of its occupants -- was
clearly erroneous. See United States v. Hill, 473 F.3d 112, 115
(4th Cir. 2007) (noting that a factual finding is only clearly
erroneous if the reviewing court is “left with a definite and firm
conviction that a mistake has been committed after reviewing the
entire record”) (citing United States v. United States Gypsum Co.,
333 U.S. 364, 395 (1948)).
This situation differs markedly from those cases in which
courts have found the constructive possession rule provides
insufficient proof of ownership to satisfy the “some evidence”
standard. For instance, Broussard v. Johnson, 253 F.3d 874, 877
(5th Cir. 2001), relied upon by McClung, held that the constructive
possession rule did not provide some evidence when the contraband
at issue was found in the kitchen area –- an area accessible to 100
inmates. Cf. Hamilton v. O’Leary, 976 F.2d 341, 346 (7th Cir.
1992) (constructive possession rule would provide some evidence if
inmate was one of four with access).
-9-
We decline to hold today that an inmate’s unlocked cell,
simply by virtue of being unlocked, becomes transformed into a
common area akin to a kitchen or television lounge in which the
constructive possession rule has no application. The Due Process
Clause does not require continuous lock-down before allowing
punishment for possession of contraband found in inmates’ cells.
Therefore, since a dangerous weapon was discovered in a cell that
was the “exclusive domain” of McClung and his cellmate, the
constructive possession rule provides the necessary “some evidence”
sufficient to sustain McClung’s disciplinary conviction.
IV.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
-10-