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Pichardo v. Hanson

United States District Court, N.D. Texas, Abilene Division

May 8, 2017

FRANCISCO PICHARDO, Petitioner,
v.
RALPH HANSON, Warden, FCI-Three Rivers, Respondent.

          OPINION AND ORDER

          Reed O'Connor UNITED STATES DISTRICT JUDGE.

         Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 filed by Petitioner Francisco Pichardo, a federal prisoner who was confined at the FCI-Big Spring in Big Spring, Texas, at the time petition was filed.[1] In addition to two-page § 2241 petition and an amended § 2241 petition, the Court has a response from the Respondent with an Appendix containing copies of the documents related to the disciplinary, and copies of the documents related to Pichardo's exhaustion of administrative remedies. Pet., ECF No. 1, Amend. Pet., ECF No. 6; Response, ECF No.8; Response Appendix (App.), ECF No. 9. Petitioner never filed a reply.[2]

         After considering all of Plaintiff's § 2241 petition as amended, the response and supporting appendix, the relief sought by Petitioner, and the applicable law, the Court has concluded that the § 2241 petition must be dismissed, and alternatively, denied.

         I. BACKGROUND

         Petitioner Francisco Pichardo was convicted in the United States District Court for the Southern District of Florida in cause number 13-CR-20426-2 of conspiracy to import five kilograms or more of cocaine, in violation of 21 U.S.C. § 963; conspiracy to possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846; and possession with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 841. App. at 39. Pichardo was sentenced to 130 months' imprisonment. Id. at 40. His current projected good conduct time release date is September 11, 2023. See www.bop.gov search of Francisco Pichardo, No. 01625-104, last visited on May 8, 2017.

         On June 21, 2014, while conducting a search of the room in which Pichardo and another inmate were housed at FDC-Miami, a BOP employee found a cell phone concealed within a roll of toilet paper. App. at 26, § 11. This roll of toilet paper was found in a common area of the room on the floor next to the bunk bed, and thus it was secured. The cell phone was identified as a Samsung AT&T flip-phone, gray/black in color, with an IMEI #012968004921106. Id. The cell phone was given to the Operations Lieutenant, and both Pichardo and his roommate were escorted and removed to the Special Housing Unit. Id.

         The incident report prepared the next day charged Pichardo with possession of a hazardous tool in violation of BOP disciplinary code 108. App. 26, at § 10. As a part of the investigation of that report, after advising Pichardo of his rights, an investigating employee conducted an interview. Id. at 27, §§ 23 & 24. Pichardo told the investigator that he had nothing to do with the cell phone and that he went to the visiting room, returned to the unit, and “shortly afer the count, he was pulled out his cell and the cell phone was discovered.”[3] Id. at § 24.

         A few days later, Pichardo appeared before a Unit Disciplinary Committee (UDC). App. 26, at § 21. The statement he made to the UDC was summarized as “Inmate stated the phone is not his. The phone belongs to his roommate. I have never used any cell phone.” Id. at § 17. The UDC referred the charges to a Disciplinary Hearing Officer (DHO) for final disposition. Id. at § 19. Pichardo was provided written notice of his rights before the DHO and was given the opportunity to request witnesses and a staff representative. App. 29-31. He did not request a staff representative or any witnesses. Id. at 29.

         On July 10, 2014, Pichardo appeared before the DHO. App. at 31, § I (B). He provided a statement to the DHO which the DHO summarized as: “I went down for a visit, I wasn't in my room. The officer came and searched my room. My Bunkie[4] is an orderly and put all of the toilet paper in there. I never saw the phone.” App. 33 at § III(B). Based on the evidence presented, including the reporting FDC-Miami employee's written account of the incident, Pichardo's statements, and two photographs of the telephone found in Pichardo's cell, the DHO concluded that Pichardo violated BOP disciplinary code 108 as charged. App. 31-37; 34-35, §§ IV(A) & V. The DHO described the evidence relied upon in reaching this conclusion:

The decision is based on the statement of the reporting officer. Specifically, the reporting officer stated that on 06-21-14 he searched your cell (C08-027). During the search he found an ATT Samsung flip cell phone (color = gray/black) concealed inside a roll of toilet paper. The cell was occupied by inmates Pichardo 01625-104 and [redacted].
The reporting officer provided a photo of the cell phone located in your cell. . . .
Based on the officer's eye witness account of the incident and the physical evidence recovered, the DHO finds you committed the prohibited act as charged. Although you stated you were not in the room when the phone was found, you are still responsible for items in your assigned cell. You presented no evidence or information to dispute the charges.

App. 34, § V. Based on these findings, the DHO disallowed 40 days of Pichardo's good conduct time credit, imposed 60 days of disciplinary segregation, and suspended his telephone privileges for one year. Id. at § VI. The DHO also provided an explanation of the reasons for the sanctions imposed. Id. at § VII.

         II. ...


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