United States District Court, E.D. Kentucky, Southern Division, Pikeville
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE.
morning of June 29, 2015, inmate Jose Cristobal Cardona
attempted to obtain an envelope from a fellow prisoner which
Cardona told an officer contained legal materials. But when
the officer searched the envelope he found a red foil wrapper
which contained a small quantity of a sticky black substance.
That substance later tested positive for opium alkaloids, and
the prison charged Cardona with possession of narcotics. [R.
disciplinary hearing held three days later, Cardona claimed
that he never “possessed” the drugs, but offered
no other evidence in defense. The Disciplinary Hearing
Officer disagreed, found Cardona guilty of the disciplinary
offense, and imposed various sanctions including the
disallowance of good time credits. [R. 6-2]
appealed the disciplinary conviction on numerous grounds,
including that the incident report did not give adequate
notice of the offense or name the other inmate involved, he
did not possess the envelope, he did not know the envelope
contained drugs, the envelope did not belong to him, the
other inmate was not charged, and the hearing officer was
biased. The Bureau of Prisons rejected those contentions and
denied relief. [R. 1-1]
has now filed a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 to challenge the prison
disciplinary conviction. [R. 1] Cardona's first and
fourth grounds for relief make no sense: he states only that
“[t]he targeting a limited group of prisoners for
imposition of $5.00 maintenance pay constitutes an unlawful
bill of attainder” and “[t]he taking of good time
credit without evidence for the purpose of imposing $5.00
maintenance pay conspiracy is to impose involuntary
servitude.” [R. 1 at 7, 8] Cardona makes no effort to
explain the reference to “$5.00 maintenance pay”
nor is one self-evident. As these statements have no obvious
bearing upon Cardona's disciplinary conviction they will
be disregarded. Cardona's second and third grounds for
relief challenge the DHO's finding that he was in
possession of the drugs and allege discrimination because the
other inmate was not charged. [R. 1 at 7]
Court conducts an initial review of habeas corpus petitions.
28 U.S.C. § 2243; Alexander v. Northern Bureau of
Prisons, 419 F. App'x 544, 545 (6th Cir. 2011). When
a prison disciplinary board takes action that results in the
loss of good time credits in which the prisoner has a vested
liberty interest, the Due Process Clause requires prison
officials to observe certain protections for the prisoner.
Specifically, the prisoner is entitled to advanced notice of
the charges, the opportunity to present evidence in his or
her defense, whether through live testimony or documents, and
a written decision explaining the grounds used to determine
guilt or innocence of the offense. Wolff v.
McDonnell, 418 U.S. 539, 563-66 (1974). Further, the
board's findings used as a basis to revoke good time
credits must be supported by some evidence in the record.
Superintendent v. Hill, 472 U.S. 445, 454 (1985);
Selby v. Caruso, 734 F.3d 554, 559 (6th Cir. 2013).
When determining whether a decision is supported by
“some evidence, ” the Court does not conduct an
independent review of the evidence or assess the credibility
of witnesses. It asks only “whether there is any
evidence in the record that could support the conclusion
reached by the disciplinary board.” Hill, 472
U.S. at 455-56; Higgs v. Bland, 888 F.2d 443, 448-49
(6th Cir. 1989).
DHO's decision satisfied all of these requirements.
Cardona's challenge to the DHO's finding that he
possessed the drugs is a challenge to the sufficiency of the
evidence. The narcotics were found in an envelope which
Cardona had just told an officer that he was going to get
from another inmate. The Incident Report states that Cardona
“obtained” the envelope; if so, the envelope - as
well as the drugs contained within it - were not merely in
Cardona's constructive possession, they were in his
actual possession. Another portion of the DHO Report suggests
that perhaps the officer intercepted the envelope before
Cardona got his hands on it. [R. 6-2 at 3 (“…
the envelope at that time was not in your possession and 
the narcotics were located prior to it reaching you.”)]
If so, the DHO's finding that Cardona obtained
constructive possession of the envelope and its contents when
he stated his intention to retrieve it and immediately
attempted to do so is supported by “some
evidence.” Cf. Hill, 472 U.S. at 456-57;
Tweedy v. Vannatta, 101 F. App'x 158 (7th Cir.
2004) (marijuana found in cup in common area in two person
cell); Triplett v. Fondren, No. 07-2343 (JRT/RLE),
2008 WL 1819183, at *4-5 (D. Minn. Apr. 23, 2008)
(inmate's possession of pen constituted “some
evidence” that he possessed marijuana contained
extent Cardona's argument regarding possession hinges
upon whether he knew the drugs were inside the envelope, his
knowledge does not affect whether he possessed them at all
-his knowledge poses only a question of intent. In that
regard, the DHO concluded that Cardona knew that drugs were
inside the envelope based upon his deliberate attempt to
obtain it and because drugs are very valuable in a prison
setting, rendering their voluntary transfer to Cardona
certainly intentional. [R. 6-2] That finding was also
supported by “some evidence” to satisfy
constitutional due process requirements.
third ground for relief asserts that the prison's failure
to charge the other inmate involved constitutes
discrimination against him. [R. 1 at 7] While he
characterizes this as a due process claim, it plainly invokes
his right to equal protection under the law. But the Equal
Protection Clause does not require that all persons be
treated alike; instead it directs that all
similarly-situated persons be treated alike.
City of Cleburne v. Cleburne Living Center, 473 U.S.
432, 439 (1985). Inmates retain some of their constitutional
rights in prison, including the right to be free from
discrimination based upon race or suspect classifications.
Angstadt v. Midd-West Sch. Dist., 377 F.3d 338 (3d
Cir. 2004). But Cardona makes no claim that such an
impermissible basis was used to treat him differently, and a
prison's sanction of one inmate does not constitute
discrimination merely because it did not sanction another. Cf
Knaub v. Zickefoose, No. 11-938(RMB), 2011 WL
6153791, at *7-8 (D.N.J. Dec. 12, 2011).
IT IS ORDERED that:
Cardona's petition for a writ of habeas corpus [R. 1] is
Court will enter an appropriate judgment.
matter is STRICKEN ...