Jose Cardona v. Warden Lewisburg

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-3173
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JOSE CRISTOBAL CARDONA,
Appellant
v.
WARDEN LEWISBURG
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civ. No. 12-cv-00753)
District Judge: Honorable Robert D. Mariani
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Submitted Pursuant to Third Circuit LAR 34.1(a)
January 3, 2014
Before: FUENTES, GREENBERG and VAN ANTWERPEN, Circuit Judges
(Opinion filed: January 14, 2014)
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OPINION
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PER CURIAM
Appellant Jose Cardona appeals from an order of the District Court denying his
habeas corpus petition. For the reasons that follow, we will affirm.
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Cardona, a federal prisoner, committed a misconduct at his institution and was
adjudicated guilty following a disciplinary hearing. A sanction was imposed on him that
included the loss of 27 days of good conduct time. Cardona filed a petition for writ of
habeas corpus, 28 U.S.C. § 2241, in the United States District Court for the Middle
District of Pennsylvania, seeking restoration of his good conduct time. Cardona
challenged the procedures used to adjudicate him guilty, and he challenged the result
itself as lacking in evidentiary support. In particular, Cardona challenged the impartiality
of those who brought and adjudicated the charges. He argued that his staff representative
failed to meet with him, and that the hearing officer was not impartial. In addition to
including the Disciplinary Hearing Report as an exhibit to his petition, Cardona attached
two incident reports to his petition, Exhibits 4 and 5.
In Exhibit 4 to the petition, an incident report on misconduct # 2180381 that was
purportedly prepared on June 30, 2011, Correctional Officer Donald Johnson charged
Cardona with refusing programs and refusing an order, in violation of Codes 306 and
307. In his description of the incident, Officer Johnson stated that he was helping to
escort an inmate to cell 319. Cardona was ordered to “cuff up” and he refused, stating,
“I’m not going to cuff up, and I’m not talking about it.” In Exhibit 5, an incident report
on misconduct # 2180781 purportedly prepared and delivered on July 1, 2011 but
describing an incident that occurred on June 30, 2011, Officer Johnson charged Cardona
with threatening, in violation of Code 203. In his description of the incident, Officer
Johnson stated that, when he tried to cuff Cardona, in order to place an inmate into his
cell, Cardona said, “If you put him in here I will fuck him up.” Johnson stated that he
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again ordered Cardona to cuff up, and Cardona replied, “I will fuck him up and the team.
I’m done talking.”
The Bureau of Prisons answered the petition, calling the District Court’s attention
to the incident report on misconduct # 2180781 only, wherein Officer Johnson charged
Cardona with threatening, in violation of Code 203; the thorough and well-reasoned
Disciplinary Hearing Report; and the legal standards applicable to Cardona’s petition.
Cardona then submitted a reply brief, in which he complained that the administrative
record submitted to the court by the BOP was incomplete, see Reply Brief, at 1-2, and
that the incident report on misconduct # 2180781, wherein Officer Johnson charged him
with threatening, was fabricated. Cardona argued that the description of the June 30,
2011 incident contained in Exhibit 4 was accurate, in that he merely refused an order to
cuff up and double cell and did not threaten anyone. Cardona argued that the inconsistent
descriptions of the incident contained in his Exhibits 4 and 5 were persuasive evidence
that the threat charge was fabricated by prison officials. See id. at 2, 7. In addition, he
emphasized that Officer Weaver gave a statement that he did not hear Cardona threaten
anyone, see id. at 3, and he argued that the hearing officer “went out of his way to locate
a surprise witness Officer B. Zimmerman to introduce false testimony,” id. at 8.
The Magistrate Judge recommended denying the habeas corpus petition,
concluding that the procedures set forth in the applicable federal regulations meet the
requirements for procedural due process in prison disciplinary proceedings set forth by
the United States Supreme Court in Wolff v. McDonnell, 418 U.S. 539, 556 (1974).
Moreover, Cardona unquestionably received all of his procedural due process rights. His
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criticism that prison staff were not impartial was not supported by any evidence and was
insufficient to show a violation of due process. With respect to Cardona’s challenge to
the substance of the hearing officer’s decision, the Magistrate Judge concluded that there
was “some evidence” in the record, see Superintendent v. Hill, 472 U.S. 445, 454-56
(1985), to support the conclusion that Cardona uttered a threat, citing the statements of
the reporting officer, Officer Johnson, and another eyewitness, Officer Zimmerman. The
Magistrate Judge did not specifically address Cardona’s arguments concerning an
incomplete administrative record and his Exhibit 4. Cardona then submitted Objections.
In an order entered on June 27, 2013, the District Court overruled Cardona’s objections,
adopted the Magistrate Judge’s Report and Recommendation, and denied the habeas
corpus petition.
Cardona appeals. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a).
Cardona contends in his Informal Brief that the evidence that he uttered a threat was
insufficient, that the procedures used to obtain the adjudication of guilt were flawed, that
the administrative record was incomplete, that documents were falsified, and he also
referred us to his Objection Nos. 2 and 3. In Objection No. 2, Cardona argued that his
Exhibit 4 was proof that he did not utter a threat and that the incident report concerning
misconduct # 2080781 was fabricated; and in Objection No. 3, he argued that the hearing
officer was lying about Officer Zimmerman’s corroborating statement.
We will affirm. A claim of loss of good conduct time sounds in habeas corpus
because the loss would affect the duration of the inmate’s sentence, Woodall v. Federal
Bureau of Prisons, 432 F.3d 235, 241 (3d Cir. 2005). Accordingly, the District Court had
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jurisdiction to address Cardona’s petition. We exercise plenary review over the District
Court’s legal conclusions and apply a clearly erroneous standard to its factual findings.
See Rios v. Wiley, 201 F.3d 257, 262 (3d Cir. 2000). The BOP, through the Declaration
of L. Cunningham, stated that Cardona had exhausted his available administrative
remedies.
According to the incident report on misconduct # 2180781 that was submitted as
part of the administrative record, Cardona was charged by Officer Johnson with
threatening, in violation of Code 203. In his description of the incident, Officer Johnson
stated that, when he tried to cuff Cardona, in order to place an inmate into his cell,
Cardona said, “If you put him in here I will fuck him up.” The incident occurred on June
30, 2011. The item submitted by the BOP thus corresponds to Cardona’s Exhibit 5. This
incident report goes on to reveal that, on July 1, 2011, an investigating lieutenant met
with Cardona and provided him with a copy of the incident report which charged him
with threatening. After documenting Cardona’s denial of the charge, the lieutenant
referred the matter to the Unit Disciplinary Committee (“UDC”) for an initial hearing.
The administrative record submitted by the BOP further shows that, at the UDC
proceeding, Cardona was provided with a Notice of Discipline Hearing and Inmate
Rights at Discipline Hearing form, and that the charge of threatening was referred to the
hearing officer for a final hearing. The Notice of Discipline Hearing reflects that
Cardona asked for a staff representative, and asked for two witnesses, Officers
Zimmerman and Weaver. These officers eventually gave written statements.
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Cardona’s disciplinary hearing was conducted on August 15, 2011. The hearing
report shows that the hearing officer advised Cardona of his rights in connection with the
proceeding and that Cardona indicated that he understood these rights. The report states
that Cardona presented no documents at the hearing, and that he had asked his staff
representative to obtain statements from Officers Weaver and Zimmerman, and also his
former cellmate (who, as it turned out, had no relevant information to offer). The report
states that Cardona made a statement on his own behalf. He stated that he refused on
June 30, 2011 to cell with another inmate and to “cuff up,” but he did not threaten
anyone. He accused prison officials of fabricating the charge in retaliation for one of his
lawsuits against them. The hearing officer then reviewed with Cardona the statements of
his two witnesses, including Officer Zimmerman’s statement that he heard Cardona utter
the threat and Officer Weaver’s statement that he did not hear Cardona utter the threat.
In response to hearing that his own witness (Officer Zimmerman) did not support his
version of the events, Cardona argued that Officer Zimmerman and Officer Weaver left
the scene at the same time; if Officer Weaver did not hear the threat, then Officer
Zimmerman necessarily was lying about hearing a threat. The hearing officer then
reminded Cardona that both Officers Weaver and Zimmerman stated that Officer
Zimmerman remained in front of Cardona’s cell door with the reporting officer, Officer
Johnson, after Officer Weaver departed the area. Therefore, he could have heard
something that Officer Weaver did not hear. According to the hearing report, Cardona
then admitted that Officer Zimmerman remained at his cell door with Officer Johnson
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throughout the entire incident. Cardona would not give in, however, and argued instead
that no one could have heard him threaten anyone because the range fans are so noisy.
Upon consideration of all of the evidence, the hearing officer determined that
Cardona had committed the prohibited act of threatening another. In reaching this
decision, the hearing officer documented the specific evidence he relied upon, explaining
that his decision was based on witness statements, including the statement of Officer
Zimmerman who confirmed Officer Johnson’s contention in the incident report relating
to misconduct # 2180781 that Cardona uttered a threat. The hearing officer discounted
Cardona’s claim of fabrication, and found that there was no material inconsistency
between the statements of Officers Johnson and Zimmerman, on the one hand, who heard
Cardona utter a threat, and Officer Weaver, on the other hand, who did not hear a threat,
because Officer Weaver had departed the scene early on. The hearing officer discounted
Cardona’s denial of the threat charge on the basis that it was not credible, noting that
Cardona had given inconsistent and contradictory testimony at his hearing regarding how
long Officer Zimmerman remained in front of his cell.
We have carefully reviewed all of the exhibits submitted by the BOP and Cardona,
and conclude that there is no plausible argument to be made that Cardona’s procedural
due process rights were violated in any way. For the reasons given by the Magistrate
Judge, Cardona received all of the process due him under the regulations, 28 C.F.R. §§
541.5-541.8, and Wolff, 418 U.S. 539.1 The administrative record establishes that
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Wolff requires 24-hour advance written notice of the disciplinary charges, the
opportunity when consistent with institutional and correctional goals to call witnesses and
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Cardona made full and complete use of his procedural due process rights. As explained
by the Magistrate Judge, due process also requires that a prison disciplinary tribunal be
sufficiently impartial, Meyers v Aldredge, 492 F.2d 296, 305-07 (3d Cir. 1974), but no
due process violation was made out here because Cardona’s contentions that his staff
representative did not assist him and acted in bad faith, and that the hearing officer lied
about the evidence and was not impartial, had no evidentiary support.
Turning to the adjudication of guilt itself, we note that a prison disciplinary
determination comports with due process if it is based on “some evidence” in the record.
Hill, 472 U.S. at 454-56. This standard is minimal. It does not require a reviewing court
to exam the entire record, independently assess the credibility of witnesses, or even
weigh the evidence. See id. at 455; Thompson v. Owens, 889 F.2d 500, 501-02 (3d Cir.
1989). Once the reviewing court determines that there is some evidence in the record to
support the finding of the hearing officer, an inmate’s challenge to the weighing of the
evidence must be rejected. Cf. at 502 (“Positive urinalysis results based on samples that
officials claim to be appellant’s constitute some evidence of appellant’s drug use. A
chain of custody requirement would be nothing more or less than an ‘independent
assessment’ into the reliability of the evidence, and Hill tells us, explicitly, that such a
‘credibility’ determination is not required.”). In Cardona’s case, two eyewitnesses,
Officers Johnson and Zimmerman, stated that they heard him utter a threat. That
evidence satisfies Hill, particularly in view of the fact that Officer Zimmerman was
present documentary evidence, assistance in complex cases, and a written statement from
the factfinder as to the evidence relied on and the reasons for the disciplinary action. See
id. at 563-67.
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Cardona’s own witness, and Cardona admitted at his hearing that Officer Zimmerman
remained at his cell door with Officer Johnson throughout the entire incident.
We do not think that Cardona’s Exhibit 4 is the “smoking gun” he thinks it is. We
doubt seriously that any claim related to Exhibit 4 is exhausted, because the
administrative record gives no indication that Cardona tried to introduce this exhibit at
his disciplinary hearing, or argue that Officer Johnson gave a prior inconsistent statement
regarding the events of June 30, 2011 as reflected in Exhibit 4. Federal prisoners are
required to exhaust their administrative remedies completely prior to filing a petition for a
writ of habeas corpus. Moscato v. Federal Bureau of Prisons, 98 F.3d 757 (3d Cir.1996).
Moreover, Cardona made no effort to establish the authenticity of his Exhibit 4, which
contains a different misconduct number than the one at issue in this case; and he
originally claimed that “Lt. R. Miller” and not Officer Johnson was responsible for
charging him with the misconduct at issue in Exhibit 4, see Petition, at 5-6, and offered
no explanation for having done so. In any event, Hill prevents us from independently
assessing Officer Johnson’s credibility. 472 U.S. at 455.
For the foregoing reasons, we will affirm the order of the District Court denying
Cardona’s habeas corpus petition.
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