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Javier A. Roel v. Ricardo Rios

March 15, 2011

JAVIER A. ROEL, PETITIONER,
v.
RICARDO RIOS, WARDEN, RESPONDENT.



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

E-FILED

Wednesday, 16 March, 2011 09:49:27 AM

Clerk, U.S. District Court, ILCD

ORDER

Before the Court is a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 filed by Petitioner, Ricardo Rios ("Rios"). For the following reasons, the Petition [#1] is DENIED.

BACKGROUND

Roel was convicted in the Southern District of Texas of possession of cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(b). He was sentenced to 97 months' imprisonment. From March 6, 2008, through February 3, 2010, Roel was housed at Reeves County Detention Center ("Reeves") in Pecos, Texas. He has since been transferred to FCI Pekin.

Beginning on January 31, 2009, a number of inmates were involved in a disturbance at Reeves that lasted several days. Special Investigative Services ("SIS") conducted an investigation to determine which inmates had participated in the disturbance, ultimately determining that Roel had been a participant. On April 27, 2009, Roel received an incident report stating that he had been found to be a participant in the January 2009 disturbance and charging him with rioting, possession of a hazardous tool, and conduct which disrupts or interferes with the security or orderly running of the facility.

On April 29, 2009, the Unit Disciplinary Committee ("UDC") held a hearing. Roel stated that the incident report was only partially correct, as he admitted to using another inmate's cellular phone to contact his mother but denied participating in the riot or relaying information to other inmates. After considering the body of the incident report, a memorandum of the Assistant Warden of Programs ("AWP"), and Roel's statement, the Unit Disciplinary Committee found that Roel had committed the acts as charged and referred the matter to the Disciplinary Hearing Officer ("DHO").

A due process hearing was held before the DHO on May 4, 2009. It is undisputed that Roel received notice of the hearing, was presented with a copy of the incident report, and was informed of his rights prior to appearing before the DHO. He waived his right to have a staff member representative at the hearing and indicated that he did not wish to call any witnesses. The hearing was conducted in Spanish. Roel appeared at the hearing and gave a statement. He stated that he had borrowed a phone from another inmate and made only one call to his mother to let her know that he was fine and not to worry if she saw anything about the disturbance on the television. Roel further testified that he did not pass any information on to other inmates, participate in the riot, or attempt to break down doors or windows in his housing unit.

The DHO found that Roel had committed the act of rioting, possession of a hazardous tool, and conduct which disrupts or interferes with the security or orderly running of the facility in violation of Codes 105, 108, and 199 respectively. The DHO based his decision on the report of the AWP detailing his review of the video of the disturbance. According to the AWP, the video showed Roel gathering with a group of inmates on the recreation yard discussing a document that one of them had received from the Warden. Roel was observed stepping away from the group and speaking on a cell phone equipped with an ear piece, returning to the group and addressing them (as though relaying information from his conversation), and then making a second telephone call after the group dispersed. When the AWP asked Roel where the phone was, he initially denied using a cell phone, but then admitted borrowing the phone from another inmate after the AWP said that he had personally observed Roel using the phone. The DHO further noted the results of the SIS investigation and that Roel admitted having borrowed a cell phone from another inmate and made a call. Additionally, a confidential informant indicated that Roel had been a willing participant in the disturbance, had been used by the leaders as a spokesperson to pass on information to the other inmates, and had been observed on several occasions attempting to break down doors and windows in his housing unit.

The DHO credited the statements of the AWP and confidential informant over those of Roel, basing his decision on the reporting officer's statement, the results of the SIS investigation, the supplemental memo summarizing the video surveillance, the information from the confidential informant, and Roel's admission that he had used a cell phone borrowed from another inmate on the date in question. Roel was sanctioned with a loss of 40 days of good conduct time, forfeiture of 100 days of non-vested good conduct time, and the recommendation for a disciplinary transfer for rioting, a loss of 10 days good conduct time, 30 days disciplinary segregation, and a loss of 240 days of telephone privileges for possession of a hazardous tool, and a loss of 3 days good conduct time and 220 days of commissary privileges for conduct which disrupts or interferes with the safety or orderly running of the institution. Roel received the DHO report on May 5, 2009.

On June 2, 2009, Roel filed an appeal to the Privatization Management Branch ("PMB"), which handles appeals for contract facilities such as Reeves. Roel argued that he was sanctioned for violations for which there was no evidence and that he did not commit. In addressing the appeal, the Administrator of the PMB remanded the case to the institution for further consideration to expunge the violation for conduct which disrupts or interferes with the safety or orderly running of the institution, as that offense is a catch-all used only if the offense conduct is not otherwise described by one of the specifically enumerated offenses. In other words, Roel could not be charged with conduct which disrupts or interferes with the safety or orderly running of the institution if he was also charged with the specific offenses of rioting or possession of a hazardous tool. On August 26, 2009, the DHO expunged that violation only and restored the corresponding three days of good conduct time and commissary privileges.

Roel again appealed to the PMB claiming innocence and requesting the restoration of the remainder of his good conduct time. In denying the appeal, the Administrator of the PMB chronicled the evidence considered by the DHO and concluded that ...


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