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Cabrera v. Veach

August 31, 2006

STEVEN CABRERA, PETITIONER,
v.
RICK VEACH, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Michael M. Mihm United States District Judge

ORDER

Before the Court is a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 [#2] filed by Petitioner, Steven Cabrera ("Cabrera"). For the following reasons, the Petition is DENIED.

BACKGROUND

Cabrera was convicted in the Northern District of Illinois for conspiracy to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. § 846. On March 22, 2002, he was sentenced to 114 months imprisonment.

On March 6, 2005, a routine search of the cell that was occupied by Cabrera and another inmate was conducted by a Correctional Officer. During the search, the Correctional Officer discovered a government-issued pen in an unsecured open locker in Cabrera's cell. Upon closer inspection, the Correctional Officer noted that the pen smelled strongly of marijuana. The pen was tested and tested positive for cannabinoids. In addition to the pen, the locker contained personal mail belonging to Cabrera. Cabrera denied ownership of the pen.

As a result of the discovery of the pen, the Correctional Officer prepared an Incident Report charging Cabrera with possession of narcotics or related paraphernalia not prescribed by medical personnel in violation of Bureau of Prisons ("BOP") Code 113. Cabrera was given a copy of the Incident Report and a copy was forwarded to the Federal Bureau of Investigation ("FBI") for possible criminal prosecution. On March 9, 2005, the FBI released the charges to the BOP for administrative processing.

On March 13, 2005, the Unit Disciplinary Committee ("UDC") held a hearing. At the hearing, Cabrera stated "I don't know how I became in possession of that pen. I don't do drugs and took a [urinalysis] which will come back clean. I wouldn't keep it if I did drugs with it." The Unit Disciplinary Committee referred the matter to the Disciplinary Hearing Officer ("DHO") and recommended loss of good time credit and time in disciplinary segregation. However, the UDC also recommended that the DHO hearing be post-poned until after the results of the urinalysis were obtained. It is not clear from the record if the hearing was actually postponed until after the results of the urinalysis were available; however, Cabrera passed the urinalysis and addressed this issue in his appeal of the DHO's decision.

A due process hearing was held before the DHO on March 16, 2005. Cabrera waived his right to have a staff member representative at the hearing and indicated that he did not wish to call any witnesses. Cabrera appeared at the hearing and gave a statement. He stated "I grabbed the pen and took it in to the cell. I had it in my locker. I have about 20 of them pens in there. I didn't know there was anything on the pen or that it was used for anything. I didn't smoke out of it."

The DHO found that Cabrera had committed the act of Possession of Narcotic Paraphernalia, in violation of BOP Code 113. The DHO based his decision on the reporting officer's statements regarding finding the pen, the fact that the pen smelled of marijuana, the pen contained a residue that tested positive for cannabinoids, and the contents of the locker were identified as belonging to Cabrera through a review of personal mail found in the locker. Additionally, the DHO noted that Cabrera admitted that he grabbed the pen and took it into his cell along with approximately 20 other pens. The DHO credited the statements of the reporting officer over those of Cabrera. Finally, the DHO found that BOP regulations require all inmates to keep their assigned areas free of contraband, that the pen was in Cabrera's locker smelling of marijuana, and therefore Cabrera used the pen to smoke marijuana. Cabrera was sanctioned with 60 days in disciplinary segregation, loss of 40 days good conduct time, and loss of visiting privileges for one year. Cabrera received the DHO report on April 12, 2005.

On May 5, 2005, Cabrera filed a Regional Administrative Remedy Appeal. Cabrera argued that the pen was not in his possession but was actually in a spare unlocked locker in his cell, that the officers had ulterior motives for filing the Incident Report, that the UDC hearing was untimely, and that he passed the urinalysis test and therefore had not smoked marijuana. In denying the appeal, the Regional Director found that Cabrera was provided with sufficient due process, that inmates are responsible for items found in their living areas, and that the Incident Report was supported by the record. Additionally, the Regional Director found that Cabrera's UDC hearing was held in a timely manner and that the sanctions imposed were commensurate with the act that Cabrera committed.

On July 7, 2005, Cabrera filed a Central Office Administrative Remedy Appeal arguing raising essentially the same arguments as the ones raised in his previous appeal. In denying the appeal, the Administrator of National Inmate Appeals found that the DHO's decision was supported by the record and that the UDC hearing was timely.

Cabrera filed the instant petition for writ of habeas corpus on June 20, 2006, pursuant to 28 U.S.C. § 2241. In his petition, Cabrera argues that (1) his UDC hearing was untimely; (2) he was denied due process because he was denied exculpatory evidence; and (3) he is actually innocent of the Code violation.*fn1 Cabrera asks the Court to expunge his record and restore his 40 days of good conduct time. The Government responded to Cabrera's petition and Cabrera filed a traverse. As the issues are now fully briefed, this Order follows.

DISCUSSION

A petition seeking habeas corpus relief is appropriate under 28 U.S.C. § 2241 when a defendant is challenging the fact or duration of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 490 (1973); Waletzki v. Keohane, 13 F.3d 1079, 1080 (7th Cir. 1994). The writ of habeas corpus may be granted where the defendant is in custody in violation ...


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