     Case: 09-10322     Document: 00511043183          Page: 1    Date Filed: 03/05/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            March 5, 2010

                                     No. 09-10322                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



BOYD JIM FLANNAGAN,

                                                   Petitioner-Appellant,
v.

REBECCA TAMEZ, WARDEN, FCI FORT WORTH,

                                                   Respondent-Appellee.




                      Appeals from United States District Court
                         for the Northern District of Texas
                               U.S.D.C. No. 08CV465


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        This is an appeal from the district court’s order denying Boyd Jim
Flannagan’s1 28 U.S.C. § 2241 application for habeas corpus challenging his
prison disciplinary conviction on due process grounds. For the reasons that
follow, we AFFIRM the judgment of the district court.


        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
        1
        Petitioner Boyd Jim Flannagan, Reg. No. 05210-090, is a federal prisoner who is
currently incarcerated in the Federal Correctional Institution (“FCI-Fort Worth”) in Fort
Worth, Texas.
   Case: 09-10322         Document: 00511043183        Page: 2     Date Filed: 03/05/2010

                                        No. 09-10322

       On August 17, 2007,2 Flannagan was charged by incident report with the
prohibited act of Conduct Which Disrupts, code 199; and Possession,
Manufacture, or Introduction of a Hazardous tool, code 108, after a search of his
room revealed contraband, specifically: a cell phone and charger located in a
concealed hole in the wall next to a bed assigned to him and another inmate.
Thus, the contraband was found in a common area that adjoined the sleeping
quarters of five inmates, including Flannagan. All five inmates, however, denied
ownership of the contraband.3 Flannagan received a copy of the incident report,
was advised of his rights in connection with the disciplinary proceeding, and
subsequently appeared for a disciplinary hearing before a disciplinary hearing
officer (“DHO”) on September 6, 2007.
       On September 12, 2007, after reviewing the evidence– including the
incident report, Flannagan’s statements, and the Bureau of Prisons Program
Statement 5270.7 (requiring inmates to keep their assigned areas free of
contraband)– the DHO found that constructive possession applied and found
Flannagan guilty of the charged offense.4 Flannagan received a copy of the
DHO’s report and filed an appeal to the Regional Director on September 26,
2007. After exhausting his administrative remedies, Flannagan filed the instant
habeas corpus petition. In his petition, Flannagan argues that there was no
evidence to justify the DHO’s determination that he had constructive possession
over the contraband in the common area of his cell, and consequently, he asserts



       2
         These events first unfolded at Federal Prison Camp, in Yankton, South Dakota, as
Flannagan’s transfer to FCI-Fort Worth was a disciplinary transfer that did not occur until
after and as a result of the DHO’s September 12, 2007 decision.
       3
           All five were charged with constructive possession of the contraband.
       4
          As a result of the DHO’s decision, Flannagan lost 40 days of good conduct time; he
forfeited 270 days of non-vested good conduct time; he lost telephone and visiting privileges;
he incurred 60 days of disciplinary segregation; and he was subjected to a disciplinary transfer
to FCI-Fort Worth.

                                               2
   Case: 09-10322    Document: 00511043183       Page: 3   Date Filed: 03/05/2010

                                   No. 09-10322

that his due process rights were violated.        The district court granted the
Defendant-Appellee’s motion for summary judgment and entered judgment
against Flannagan. Flannagan timely filed this appeal.
      “In an appeal from a district court’s denial of habeas relief, we review the
findings of fact for clear error and rulings of law de novo.” Free v. Miles, 333 F.3d
550, 552 (5th Cir. 2003). On appeal, Flannagan contends that his due process
rights were violated since no evidence supports the DHO’s decision to discipline
him. Having reviewed the facts and the district court’s application of the law to
them, we conclude that the district court did not err in denying Flannagan’s
habeas petition.
      First, we begin our analysis by noting that although prisoners do not shed
all constitutional rights by virtue of their incarceration, their “rights are . . .
subject to restrictions imposed by the nature of the regime to which they have
been lawfully committed.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974).
“Consequently, in identifying the safeguards required by due process, the Court
has recognized the legitimate institutional needs of assuring the safety of
inmates and prisoners, avoiding burdensome administrative requirements that
might be susceptible to manipulation, and preserving the disciplinary process
as a means of rehabilitation.” Superintendent, Mass. Corr. Inst., Walpole v. Hill,
472 U.S. 445, 454-455 (1985). As a result of these important considerations, we
have held that “[t]he federal courts cannot assume the task of retrying all prison
disciplinary disputes.” Smith v. Rabalais, 659 F.2d 539, 545 (5th Cir. 1981).
      Instead, in reviewing prison disciplinary findings under federal habeas
corpus, “the standard to be applied is whether or not actions of the disciplinary
committee were arbitrary and capricious or an abuse of discretion.” Id. That is,
“[n]o de novo review of the disciplinary board’s factual finding is required, but
the courts must consider whether at least the decision is supported by ‘some
facts’ ‘whether any evidence at all’ supports the action taken by the prison

                                         3
   Case: 09-10322       Document: 00511043183          Page: 4    Date Filed: 03/05/2010

                                       No. 09-10322

officials.” Id. (citation omitted). “Prison disciplinary proceedings are overturned
only where no evidence in the record supports the decision.” Broussard v.
Johnson, 253 F.3d 874, 877 (5th Cir. 2001); see also Superintendent, Mass. Corr.
Inst., 472 U.S. at 455-456 (“[T]he relevant question is whether there is any
evidence in the record that could support the conclusion reached by the
disciplinary board.”); Morgan v. Dretke, 433 F.3d 455, 456 (5th Cir. 2005) (“The
‘some evidence’ standard is extremely deferential-we have found a single report
or testifying witness sufficient to support an adverse disciplinary decision.”).
       In this case, and specifically in light of Program Statement 5270.7, we
conclude that there was “some” evidence to support the DHO’s guilty finding.
The incident report provides evidence that the contraband was found in an area
that Flannagan shares with only five other inmates– in the wall near his bunk
bed. Since the DHO considered this report in making his finding, we find that
there is “some” evidence in the record to support the DHO’s conclusion that
Flannagan was guilty of constructive possession of the contraband.5 See United
States v. McKnight, 953 F.2d 898, 901 (5th Cir. 1992) (“In general, a person has
constructive possession if he knowingly has ownership, dominion, or control over
the contraband itself or over the premises in which the contraband is located.”).6


       5
         On appeal, Flannagan argues that, after the DHO’s September 12, 2007 decision
finding Flannagan guilty, one of his cell-mates confessed to having placed the contraband in
their common area. However, because we are reviewing the evidence to determine whether
the evidence before the DHO supported his disciplinary finding, we do not consider evidence
that was not before the DHO at the time he made his decision. Furthermore, even if we were
to adopt the factual finding that one of the other five inmates placed the contraband in the
wall next to his bunk bed, that would not preclude the DHO’s finding of constructive
possession, since Flannagan would still have “dominion[] or control over the . . . the premises
in which the contraband is located.” United States v. McKnight, 953 F.2d 898, 901 (5th Cir.
1992).
       6
         We note that this Court in Broussard reversed a disciplinary board’s finding and held
that contraband found in an area to “which approximately one hundred inmates had access”
did not qualify as the sort of evidence upon which the prison disciplinary board could base its
adverse finding of constructive possession. Broussard v. Johnson, 253 F.3d 874, 877 (5th Cir.
2001). The present case is distinguished, however, on the basis that in Broussard, the

                                              4
   Case: 09-10322      Document: 00511043183         Page: 5    Date Filed: 03/05/2010

                                      No. 09-10322

Contrary to Flannagan’s contentions, this is not a case where the record is
devoid of any evidence to support the DHO’s decision. Accordingly, this court is
not free to retry the disciplinary charge and substitute its opinion for that of the
DHO.
       For the aforementioned reasons, we AFFIRM the district court’s denial of
the Petitioner-Appellant’s habeas corpus.




contraband was found “in an area in which he worked[, where] . . . approximately one hundred
inmates had access.” Id. Although Flannagan contends that the Yankton facility is a low-
security facility, and consequently, any of the inmates could have entered his living space
through the unlocked door– the fact that the contraband was found in a hole in the wall near
his bunk bed– in his living space as opposed to his work space– renders the present case
outside of this Court’s reasoning in Broussard. The plausible common access in the present
case does not preclude the disciplinary board’s construction possession conclusion since the
contraband was found in Flannagan’s living quarters. Furthermore, the fact that four other
inmates shared the same common living area does not prevent the DHO from finding
constructive possession since constructive possession “may be joint amount several
individuals.” United States v. Riggins, 563 F.2d 1264, 1266 (5th Cir. 1977); see also United
States v. Maspero, 496 F.2d 1354, 1359 (5th Cir. 1974) (“Dominion and control can be either
exclusive or shared.”).


                                             5
