United States District Court, W.D. Virginia, Roanoke Division
E. Conrad Chief United States District Judge.
Hubbard ("Hubbard"), a federal inmate proceeding
pro se, filed this petition for a writ of habeas corpus,
pursuant to 28 U.S.C. § 2241, alleging that he was
denied due process during a prison disciplinary
proceeding. Upon review of the record, the court
grants respondent's motion to dismiss.
January 28, 2013, while Hubbard was incarcerated at the
Federal Correctional Institution in Butner, North Carolina
("FCI Butner II"), officials placed him in
administrative segregation, pending an investigation, after
he was involved in an incident with another inmate. After
nearly ten months, on October 9, 2013, Hubbard received
Incident Report No. 2502030, charging him with violating the
Federal Bureau of Prisons ("BOP") prohibited acts
code, sections 104 (possession of a weapon) and 224 (minor
assault of any person). The incident report described the
On October 9, 2013, . . . an SIS investigation concluded that
inmate [Hubbard] did in fact Possess a Weapon and Assault
inmate [Doe] by striking him repeatedly with a 13 % inch pipe
(weapon) he took out of inside recreation at 7:33
The pipe had a lock attached to one end.
Specifically, [in institutional video recorded] on January
28, 2013 . . . inmate Hubbard can be seen exiting the
Physical Therapy room. ... As he turns away from the camera
the white pipe can be seen in his left front pocket....
On January 28, 2013, at approximately 10:45 am, as seen on
... video, [Hubbard] is observed in Housing Unit OD walking
out of cell 18... with the weapon (pipe) in his right hand as
he enters [cell 19]. At 10:47 am, [Hubbard] and [Doe] are
observed exiting the cell hanging on to each other as they
move to the center of the common area. [Hubbard] can be seen
striking [Doe] in the head with the weapon (pipe) in his
right hand at least twice. [Doe] can then be seen going to
the floor on his back and pulling Hubbard on top of him. At
10:48 am [Doe] takes the weapon (pipe) away from [Hubbard].
[Doe] can be seen swinging the weapon (pipe) at [Hubbard] to
back him up. Hubbard then walks away [and Doe] takes the
weapon (pipe) to the Unit Officer.
During an interview conducted with [Hubbard that day], he
admitted that he was in possession of the weapon (pipe). As a
result of this altercation [Hubbard] suffered a small
superficial abrasion to his left index finger.
As a result of this assault, [Doe] suffered two 2-3mm
lacerations on left side of head.
Aff. Attach. A, at 2, ECF No. 5-2.)
prison disciplinary hearing officer ("DHO")
conducted Hubbard's first formal hearing on these charges
on December 12, 2013. Hubbard alleges that during the
hearing, he asked to know all the evidence being used against
him, but the DHO denied this request. Hubbard then allegedly
exercised his right to remain silent. The DHO ruled that
Hubbard had committed the prohibited acts as charged and
imposed sanctions: for the 104 offense, disallowance of 41
good conduct days; for the 224 offense, disallowance of 27
good conduct days; and for each offense, 30 days of
disciplinary segregation and loss of commissary privileges
for six months.
appealed the DHO's findings, and in May 2014, the BOP
regional director granted the appeal in part, expunged the
disciplinary conviction, and remanded the incident report for
a rehearing. By this time, Hubbard had been transferred
to USP Lee. On September 18, 2014, an officer served him with
a copy of Incident Report No. 2502030 for purposes of the
rehearing. The DHO report of the rehearing indicated that on
September 18, 2014, Hubbard signed a form waiving 24-hour
notice of the hearing that occurred later that same day. The
form also indicated that Hubbard did not request an advisor
or witnesses for the hearing.
report stated that at the hearing, Hubbard indicated again
that he did not request a staff representative or any
witnesses and did not present any documentation as evidence.
Hubbard allegedly asked the DHO to tell him the reasons that
the regional director granted a rehearing on the two charges,
and the DHO stated that according to policy, Hubbard could
not know the reasons. According to the report, the DHO read
the description of events from the incident report and asked
Hubbard if the report was true. The DHO noted that Hubbard
said, "Yes, sir, " and indicated that he "had
his reasons." (Wahl Aff Art. B, at 7, ECF No. 5-2.)
found that Hubbard had committed the act as charged. In the
written report, the DHO stated that he based this guilty
finding on the evidence in the incident report and
Hubbard's admission that he had committed the prohibited
acts. The DHO also noted that Hubbard had presented no
evidence to show that he had not committed the acts charged,
and that the DHO found no such evidence in the record.
Therefore, the DHO report stated, "the DHO finds you
violated Code 104, Possession of a Dangerous Weapon, and code
224, Minor Assault." (Id. at 8.) As penalty for
the offenses, the DHO upheld the sanctions imposed after the
December 2013 hearing and noted that Hubbard had already
served all of them. The DHO report also states reasons for
the sanctions: to hold Hubbard accountable for his possession
and use of a weapon to assault another person, because such
conduct "threatens the health, safety, and welfare of
not only the inmate involved, but all other inmates and staff
alike. In the past, this action/behavior has been shown to