United States District Court, W.D. Virginia, Roanoke Division
Colon, Pro Se Petitioner; Matthew Miller, Assistant United
States Attorney, Roanoke, Virginia, for Respondent.
P. JONES UNITED STATES DISTRICT JUDGE
Julio Colon, a federal inmate proceeding pro se, filed this
Petition for a Writ of Habeas Corpus under 28 U.S.C. §
2241. Colon contends that he was convicted of
prison disciplinary offenses without due process. After
review of the record parties' submissions,  I conclude that
Colon's petition must be dismissed as without merit.
was incarcerated at United States Penitentiary Lewisburg
(“USP Lewisburg”) when the disciplinary
proceedings at issue occurred. On June 13, 2016, an
investigator there completed an Incident Report, charging
Colon with three prison disciplinary infractions:
introduction of any narcotic, use of the mail for an illegal
purpose, and use of the telephone for an illegal
purpose. According to the Incident Report and an
investigation report by authorities at USP Lewisburg,
evidence indicated that in March 2016, Colon had placed a
telephone call and then used coded language in telephone
conversations with a female acquaintance to arrange for her
to send him fifty N8 Suboxone strips hidden in legal mail.
The attempted transaction was thwarted in the USP Lewisburg
mailroom. Investigators discovered that the law firm listed
as the return address on Colon's incoming legal mail item
was false, opened the package, and found the Suboxone strips
and other items used as evidence against Colon.
documentation indicates that Colon received a copy of the
Incident Report on June 13, 2016, and again on August 9,
2016, after a possible criminal prosecution was declined. A
Unit Discipline Committee (“UDC”) reviewed the
Incident Report and held a hearing at which Colon was
present. He made no comment. Based on the seriousness of the
charges, the UDC then referred the report to a Disciplinary
Hearing Officer (“DHO”) for further proceedings.
On August 10, 2016, Colon signed forms indicating that he had
been given notice and advised of his rights regarding the
upcoming DHO proceedings. In writing, he declined
opportunities to have a staff representative and to present
conducted a hearing on August 15, 2016. Colon declined to
present evidence on his behalf. When the DHO asked if he
wished to admit or deny committing the prohibited acts
charged in the report, Colon made no comment.
final DHO Report in the record is dated September 1, 2016. It
indicates that as evidence in the case, the DHO considered
the Incident Report, the investigation report, a transcript
of the telephone conversation between Colon and his
accomplice, and photographs of the legal mail package
addressed to Colon that contained the concealed Suboxone
strips. The DHO also considered the fact that Colon had
elected not to make any statement or offer any documentary
evidence in his defense at the hearing. Specifically, the DHO
found that these facts supported an adverse inference that
Colon had committed the charged infractions, because if Colon
had not committed the infractions, he would have taken the
opportunity that the hearing offered to deny doing so. Based
on this listed evidence, the DHO determined that Colon
had committed the prohibited acts as charged. The
DHO then imposed sanctions, including the loss of forty-one
days of good conduct time for each offense, sixty days of
disciplinary segregation, and the temporary loss of several
privileges. The DHO Report indicates that Colon was advised
of his right to pursue an administrative appeal of the
DHO's rulings and that he was provided a copy of the
final DHO report on September 1, 2016. Colon did not appeal.
§ 2241 petition contends that the DHO proceeding
occurred less than 24 hours after Colon received the Incident
Report; that he was denied the right to call witnesses and to
present documentary evidence; that he did not receive a copy
of the DHO's written decision; and that the evidence was
insufficient to support the DHO's ruling. The respondent
filed a pleading asking for dismissal of the
petition. The court notified Colon of the
respondent's pleading as required by Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975). Colon has
responded, making the matter ripe for consideration.
disciplinary proceedings are not part of a criminal
prosecution, and the full panoply of rights due a defendant
in such proceedings does not apply.” Wolff v.
McDonnell, 418 U.S. 539, 556 (1974). The inmate facing a
prison disciplinary charge enjoys these limited,
constitutionally guaranteed due process protections: (1)
written notice of the charged violations at least twenty-four
hours before the hearing; (2) disclosure of evidence against
him; (3) the right to call witnesses and present documentary
evidence absent safety concerns; (4) a neutral and detached
factfinder; and (5) a written statement by the fact finder of
the evidence relied on and reasons for disciplinary action.
Id. at 564-71.
documents now in the record demonstrate that Colon received
the following Wolff protections: (1) proper and
timely notice of the charges, (2) disclosure in the Incident
Report of what evidence would be considered in support of
those charges, and (3) an opportunity to present witnesses
and documentary evidence at the hearing. Therefore, I must
deny relief on his claims to the contrary.
find it undisputed that Colon has now received a copy of the
DHO's Report, listing the evidence relied on, the reasons
for the finding of guilt, and the reasons for the sanctions
imposed. Finally, the documentation of the
disciplinary proceedings does not support any claim that the
DHO failed to remain neutral and detached as the factfinder,
and Colon has not asserted such a claim. Therefore, I
conclude that Colon has failed to demonstrate denial of any
procedural protection constitutionally required under
Wolff related to the challenged disciplinary
Colon's petition and later submissions, in essence,
contend that the DHO had insufficient evidence to support his
findings or the penalties imposed. In a sworn affidavit,
Colon avers that he never instructed anyone to send Suboxone
to any prison. He complains that he never saw the
transcript of the telephone conversation or the photographs
of the legal mail package. Colon believes that USP Lewisburg
authorities “manufactured the DHO report” and
“have no evidence” that he actually committed the
charged offenses. Pet'r's Resp. Ex. B, ECF No. 15.
Because the respondent has failed to produce all ...