Opinion
Civil Action No. 04-316J.
July 20, 2006
Report and Recommendation
Recommendation
Petitioner, incarcerated at F.C.I. Loretto, has filed a petition for writ of habeas corpus, 28 U.S.C. § 2241, asserting that a disciplinary sanction imposed on him is unconstitutional. I recommend that the petition be denied.
Report
Petitioner challenges the February 4, 2004 determination of a hearing officer that he possessed a prohibited weapon, and the sanction imposed on him: 60 days of segregated detention and loss of 40 days of good conduct time. The loss of good conduct time lengthens a prison sentence, and the process by which petitioner was sanctioned is therefore subject to the requirements of the Due Process Clause. Wolff v. McDonnell, 418 U.S. 539 (1974). When a penalty lengthening a sentence is imposed, the Due Process Clause requires that "some evidence" be produced to support the decision of the hearing officer. Superintendent v. Hill, 472 U.S. 445, 457 (1985).
The weapon, a piece of plastic sharpened to a point and with a grip made from tape, was found under a locker belonging to a cellmate of petitioner, in an "open-door" cell which petitioner shares with five other inmates. Petitioner denied any knowledge of the weapon, as did each of his cell mates. All six inmates were charged and found to have committed a violation of the Bureau of Prisons' regulations, the hearing officer concluding that every inmate assigned to the cell was responsible for a weapon found in an area to which each of the inmates had access. Petitioner argues that this evidence was not sufficient to support the finding that he possessed the weapon: not only was the cell shared with five other inmates, it could have been entered by yet other inmates.
Ascertaining whether the "some evidence" standard is satisfied "does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing the evidence." Hill, 472 U.S. at 455-56. The only issue is whether the finding of constructive possession satisfies the "some evidence" standard. The Court of Appeals for the Third Circuit has set out the elements of constructive possession, United States v. Garth, 188 F.3d 99, 112 (3d Cir. 1999), but has not analyzed how Hill applies the doctrine to prison disciplinary proceedings. The issue was discussed in Cardenas v. Wigen, 921 F.Supp. 286, 288-289 (E.D.Pa. 1996):
Although there was no direct evidence that any individual inmate was responsible for the forbidden materials, Petitioners and their cellmates were adjudged guilty of the charged offenses based upon Program Statement 5270.7 ("Inmate Discipline and Special Housing Units"), which provides that when contraband is discovered, all inmates residing in the room are mutually responsible if the contraband cannot be identified as belonging to a specific individual. The principle embodied by Program Statement 5270.7, known as "constructive possession," see White v. Kane, 860 F.Supp. 1075 (E.D.Pa. 1994), aff'd, 52 F.3d 319 (3d Cir. 1995), is grounded in notions of collective guilt, i.e., all members of a group are responsible for an offense when the specific offender can not be identified. See Hamilton v. O'Leary, 976 F.2d 341, 347 (7th Cir. 1992) (Posner, J., dissenting); Ustrak v. Fairman, 781 F.2d 573, 575 (7th Cir.), cert. denied, 479 U.S. 824, 107 S.Ct. 95, 93 L.Ed.2d 47 (1986).
The court in Cardenas went on to disapprove of a Magistrate Judge's recommendation that a 1 in 12 possibility of involvement was sufficient to satisfy the Hill standard. That court's analysis is set forth at length since it accurately reflects the law in this area:
In the absence of direct evidence pointing to an inmate's guilt, the "some evidence" standard of Hill may be satisfied by application of the constructive possession doctrine. SeeHamilton v. O'Leary 976 F.2d 341 (7th Cir. 1992). InHamilton, plaintiff brought suit after he and his three cellmates were found guilty by their prison disciplinary board of possessing six homemade weapons discovered in a large vent in their cell even though there was no direct evidence linking plaintiff or any of his cellmates to the contraband. In affirming the judgment of the district court dismissing plaintiff's claim, the Hamilton majority adopted a probability approach based upon the number of prisoners having access to the area where the contraband was found. The Court determined that the facts presented to the prison hearing board indicated that there was a 25% (one in four), probability that the plaintiff was responsible for the discovered contraband. Id. at 346. The Court held that this probability constituted "some evidence" of guilt as required by Hill. Id. Writing for the majority, Judge Manion reasoned that at least in cases where "contraband is found where only a few inmates have access," use of the constructive possession doctrine to satisfy the Hill standard is "unproblematical."Id. at 345 (citing Hill, 472 U.S. at 456-57, 105 S.Ct. at 2774-75 (three inmates observed fleeing from the scene of an assault); Mason v. Sargent, 898 F.2d 679, 680 (8th Cir. 1990) (contraband found in locker shared by two inmates)); see Lasley v. Godinez, 833 F.Supp. 714 (N.D.Ill. 1993) (contraband discovered behind panel located above inmate's cell door presented one in two chance of guilt-contraband belonged either to inmate or individual who occupied the cell before him); Harms v. Godinez, 829 F.Supp. 259 (N.D.Ill. 1993) (contraband found bagged with trash in commissary work area staffed by six inmates).
While the Hamilton Court's approach may be appropriate where only a small number of inmates are potentially guilty of the offense charged, as the number of inmates potentially guilty of the offense increases, i.e., as the probability that any individual inmate is the one responsible for the contraband decreases, use of the constructive possession fiction to satisfy the Hill "some evidence" standard becomes tenuous. In his Report and Recommendation for Mr. Perez's case, Magistrate Judge Smith, while finding that the Hill standard had been satisfied, recognized that this case "stretches the [probability] rationale to a one-in-twelve [or an 8.3%] chance of actual guilt." (Report and Recommendation, 95 CV 3500, doc. no. 12 at 6) Similar due process concerns over the elasticity of the probability approach have been echoed by other courts. See, e.g., White v. Kane, 860 F.Supp. 1075, 1079 n. 5 (E.D.Pa. 1994), aff'd, 52 F.3d 319 (3d Cir. 1995) (finding that the probability approach would prove "problematic" where the disciplined inmate's cell was unlocked at the time of the cell search and every prisoner in the cell block had access to the inmate's cell); Harms, 829 F.Supp. at 263 ("Were we writing on a clean slate we would be sorely tempted to agree" that a one in six or 16.7% chance of guilt does not satisfy the Hill standard.); cf. Zavaro v. Coughlin, 970 F.2d 1148 (2d Cir. 1992) (where prison riot occurred in large mess hall occupied by at least one hundred inmates, witnesses' statements that "every inmate" participated did not provide "some evidence" of plaintiff's guilt). In fact, in Hamilton, even as the Seventh Circuit validated use of the probability approach to satisfy the Supreme Court's mandate in Hill, at the same time it expressed doubt about its viability in all cases. Although the Court found a 25% probability of guilt adequate to uphold the decision of the prison disciplinary board, it also reasoned that a 3.1% (one in thirty-two) probability would not constitute "some evidence" against any particular inmate. Hamilton, 976 F.2d at 345. In his dissent, Judge Posner contended that on the record, plaintiff's probability of guilt was no greater than 12.5% (one in eight), and concluded, "[t]hat is not my idea of `some evidence.'" Id. at 347.
921 F.Supp. at 288-289. The Cardenas court agreed with Judge Posner's position in dissent in Hamilton v. O'Leary 976 F.2d 341 (7th Cir. 1992) and determined that, in the absence of any direct evidence linking the weapon to a specific prisoner, the presence of a weapon in a cell shared by 12 inmates was not "some evidence" of guilt:
Here the 8.3% (one in twelve), probability that any individual Petitioner committed the offenses is only half as great as the 16.7% (one in six), probability which was reluctantly found acceptable in Harms and 1/3 as great as the 25% (one in four), chance of guilt validated as sufficient under Hill by theHamilton majority. Under these circumstances, the Court can not say that there was "some evidence" to support the disciplinary board's decision that Petitioners were guilty of the violations charged.
If Cardenas' holding is accepted, ex ante odds of 1 in 12 (8.25%) are two low, while 1 in 6 (16.7%), see Harms v. Godinez, 829 F.Supp. 259 (N.D.Ill. 1993) would be begrudgedly sufficient. However, while it is tempting to reduce the law merely to a numerical threshold (certainly 1 in 100 (1%) is too low, see Broussard v. Johnson, 253 F.3d 874, 877 (5th Cir. 2001), while 1 in 4 (25%), is more than adequate, see Hamilton), it is important to remember that "some evidence" does not approach proof beyond a reasonable doubt, clear and convincing evidence, or even proof by a preponderance of the evidence. The level of proof required by the Due Process Clause must prevent the findings of a hearing officer from being ungrounded and arbitrary without hampering the maintenance of discipline in prison. In that light, a 1 in 6 ex ante likelihood of petitioner's involvement is sufficient to warrant a finding of constructive possession.
Petitioner asserts, however, that it was error to find that only he and six other inmates had access to the area where the weapon was found, because it is an "open door" cell on a range where inmates have some freedom of movement. Petitioner asserted this argument on appeal to the Regional Director and has not waived this argument, but the possibility of open access does not change the validity of the finding of guilt. Petitioner's argument reduces the probabilities by factoring in the possibility that some inmate, not assigned to his cell and whose presence in his cell would be a cause for comment, constructed a weapon and then concealed it his cell. As the court in Hamilton observed, not every possible alternative renders evidence of constructive possession inadequate:
We also note that it is highly improbable that all of the 32 inmates could have placed the weapons in the vent so that they could be reached from Hamilton's cell. There were 8 prisoners on the floor below Hamilton who allegedly had access to the vent, and 16 prisoners with access on the two floors above Hamilton. Although we do not know much about the construction of the vent, the laws of nature tell us it would be difficult for these 24 prisoners to get the six weapons in the part of the vent accessible from Hamilton's cell. The most likely scenario is that one (or more) of the prisoners in Hamilton's cell or the cell next to Hamilton was the owner of the weapons-that gives Hamilton a 1 in 8, or 12.5% chance, of guilt. But, of course, all this is speculation; and we need not speculate to affirm the district court.
Hamilton, 976 F.2d at 346, n. 1. While it is possible that the weapon was a "plant," it is speculation that an inmate not assigned to the cell concealed a weapon where it would do him little or no good: it is more likely that the weapon in question here was hidden by one of the six inmates, including petitioner, who would have the readiest access to the weapon if needed. There is a difference between the low but real probability that petitioner is guilty, and the pure speculation that could make that probability as low as one would like. If the latter course were adopted, any prison that does not operate on continuous lockdown in single cells would be unable to convict an inmate of possessing contraband.See Quintanilla v. O'Brien, 127 Fed.Appx. 887 (7th Cir. 2005). A legal rule which produces absurd results is not one which is commanded by the Due Process Clause. Because there was "some evidence" to support the finding petitioner had constructive possession of a weapon, the petition should be denied.
Pursuant to 28 U.S.C. § 636(b) (1), the parties are given notice that they have ten days to serve and file written objections to this Report and Recommendation.