United States District Court, D. Minnesota
Hunter, Sr., Federal Prison Camp-Duluth, pro se Petitioner.
Samie, U.S. Attorney's Office, for Respondent.
REPORT AND RECOMMENDATION
T. SCHULTZ UNITED STATES MAGISTRATE JUDGE
John Hunter, Sr., an inmate at FPC-Duluth, seeks a Writ of
Habeas Corpus from this Court reinstating 41 days of good
conduct time he lost following a disciplinary hearing. At the
hearing, a Disciplinary Hearing Officer (DHO) concluded that
Hunter had violated prison rules by possessing a cellphone.
In his Petition, Hunter contends he was denied adequate due
process before being deprived of the good time credit. Upon
review, the Court is satisfied that Hunter received adequate
due process, and so recommends that Hunter's petition be
April 13, 2017, a cellphone was discovered in vegetation near
the Visiting Road of the Federal Prison Camp in Duluth,
Minnesota (FPC-Duluth). Decl. of Mark DeLoia Ex.
1, 6, Docket No. 7-1. The area where the phone was found is
“accessible to inmates, even if they would be out of
bounds.” Id. at ¶ 19. The phone was sent
to the Bureau of Prisons Forensic Lab for analysis.
Id. at ¶ 9, Ex D at 5. FPC-Duluth officials
subsequently received the results of that analysis, including
a call log. Id. at Ex. D at 7-8. The investigating
officer identified the phone number for an outgoing call on
April 12, 2017, as belonging to Hunter's parent or
parents. Id. at Ex. D at 1, 8-10. The number was
unique to Hunter's prison phone account. Id. at
Ex. D at 1. From this, the officer drafted an incident report
charging Hunter with possession of a portable telephone,
which prison policy considers a hazardous tool. Id.
at Ex. D at 1, Ex. A (Inmate Discipline Program) at 44.
evening of September 19, 2017, Hunter received the incident
report charging him with possessing the cellphone.
Id. at Ex. D at 1-2. The report contained the
following description of the incident:
On September 19, 2017, an SIS review of BOP Forensic Lab
Extraction Report conducted on an Alcatel model 4060A
cellular phone, IMEI: 014699005810190, with an AT&T sim
card 89014103279161986817, was recovered on April 13, 2017
at 9:30 pm, near the FPC Duluth Visiting Road, south of the
Visiting Center Parking lot. During the review, I
discovered seven phone numbers unique only to Hunter, John,
Reg. No. 18434-041, active TRUPHONE account, this numbers
[sic] appear on the phone log for April 12, 2017. The
report showed that the cell phone was used to place a call
to [the phone number associated with Hunter's account].
Id. at Ex. D at 1. Hunter was also informed of his
right to remain silent through the disciplinary proceedings.
Id. at Ex. D at 2. The report states that, after
being advised of his right to remain silent, Hunter told the
investigating officer that he never used the phone himself,
but asked a friend to make a call for him, and acknowledged
that the phone number belonged to his father. Id. at
Ex. D at 2.
next day, a Unit Discipline Committee conducted an initial hearing
of the charge. Id. at Ex. D at 1. At the hearing,
Hunter stated that he wanted “the full report.”
Id. Because of the nature of the charge, the
Committee referred the report to a Discipline Hearing
Officer. Id. at Ex. D at 1, Ex. A at 23,
44. Hunter was informed of and acknowledged his rights for
the DHO hearing. Pet. Ex. B, Docket No. 1-1. He requested to
have Ms. Olson, an education technician, as his staff
representative for the hearing, but did not request any
witnesses be called. Pet. Ex. C; DeLoia Decl. ¶ 11.
hearing took place the following week. Before the hearing,
Hunter learned that his selected staff representative would
not be at FPC-Duluth on the day of hearing. DeLoia Decl.
¶ 13; Pet. Ex. D at 1. The DHO Report indicates Hunter
waived his right to a staff representative at the outset of
the hearing. Pet. Ex. D at 1. Besides not calling witnesses,
Hunter presented no documentary evidence. Id. at Ex.
D at 2. He did make a statement during the hearing, which the
DHO summarized as follows:
My dad got hurt. I gave the number to another inmate. His
name was chief, but he is no longer here. He called my dad
[sic] I was standing right there in the phone room and I
never used the cell phone. I never told anyone to use a
Id. at Ex. D at 1.
found that Hunter had committed the charged offense of
possessing a cellphone. In his report, the DHO listed the
evidence he believed supported his finding. Id. at
Ex. D at 2. This included the investigating officer's
summary in the incident report, the forensic documents from
Forensic Lab, printouts of Hunter's prison telephone
account,  and the investigator's summary of
Hunter's statement when given the incident report.
Id. The DHO stated that he considered Hunter's
denial of ever actually using the phone, but did not credit
it because Hunter could not provide any corroborating
evidence, including the actual name of the prisoner he only
knew as “Chief.” Id. The DHO's list
of specific evidence contained two statements attributed to
Hunter that apparently were made by other inmates during
hearings held the same day. Id.; DeLoia Decl. ¶
20. Based on his determination that Hunter committed a
prohibited act, the DHO sanctioned Hunter by deducting 41
days of his earned good conduct time, as well as imposing a
120-day loss of certain privileges. Pet. Ex. D at 2. Hunter
filed an administrative appeal of the DHO's decision, but
it was denied. Pet. 2-3.
habeas petition under 28 U.S.C. § 2241, Hunter
challenges the adequacy of the due process he received at the
DHO hearing. Fairly construing Hunter's Petition and
supporting memoranda, he argues his rights were violated
because (1) he was never provided a full version of the
investigator's report after he requested it, (2) he was
denied a staff representative, (3) the DHO Report contained
several false or inaccurate statements attributed to him, and
(4) the evidence was otherwise not sufficient to find ...