                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 06-6699



JEFFREY PRESTON MCCLUNG,

                                             Petitioner - Appellant,

     versus


LISA HOLLINGSWORTH, Warden,

                                              Respondent - Appellee,

     and


ROBERT P. SHEARIN,
                                                          Respondent.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(1:02-cv-03557-WDQ)


Argued:    March 16, 2007                   Decided:   April 26, 2007


Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit
Judge.


Affirmed by unpublished per curiam opinion.


ARGUED: Brett Alan Pisciotta, KING & ATTRIDGE, Rockville, Maryland,
for Appellant.     Jennifer A. Wright, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United States
Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                               -2-
PER CURIAM:

     Jeffrey Preston McClung, a federal prisoner, seeks to vacate

and expunge a prison disciplinary conviction for possession of

contraband and restore the good time credits lost as a result of

that conviction.      We affirm.



                                       I.

     On September 1, 2001, McClung shared a first-floor cell in a

139-inmate    unit    in    the    Federal   Correctional    Institution     in

Cumberland, Maryland with one other inmate. At 11 p.m. that night,

Officer Donald Strain, the unit officer on duty, conducted a random

search of McClung’s cell and discovered a sharpened instrument

underneath the desk.        Neither McClung nor his cellmate was present

in the cell at that time.            The instrument was seven inches in

length and was made of sharpened metal with a foam handle; a

photograph of the object shows a clear resemblance to a home-made

knife.      Officer   Strain      immediately   secured   the   cell   and   the

instrument and documented the incident in a report.

     Not surprisingly, this type of home-made weapon is considered

prison contraband and its possession is an offense meriting a

disciplinary proceeding.          Because Officer Strain found the weapon

in McClung’s cell, McClung was brought up on disciplinary charges.

McClung’s cellmate, Richard Stach, was also charged with possession

of   this    weapon   and    convicted;      Stach’s   similar    appeal     was


                                       -3-
unsuccessful.   See Stach v. Shearin, 80 Fed. Appx. 821 (4th Cir.

2003) (unpublished).

     At his disciplinary hearing, McClung denied ownership of the

weapon, arguing that it must have been planted.         The hearing

officer considered McClung’s testimony, as well as Officer Strain’s

incident report, a brief memorandum from Lieutenant H. Clifton

Gray, a photograph of the weapon, and various prison rules and

regulations. Relying on the prison’s constructive possession rule,

which holds each cell occupant responsible for all contraband found

in his cell when the positive ownership of the contraband cannot be

determined, the disciplinary hearing officer found McClung guilty

of possessing a dangerous weapon.    Consequently, McClung lost 41

days of good conduct time and was placed into segregated housing.

     McClung challenged his disciplinary conviction by petitioning

for a writ of habeas corpus in the district court, see 28 U.S.C.

§ 2241 (2000), seeking to have his conviction vacated and expunged

and his good time credit restored.   JA at 58.   McClung argued that

insufficient evidence supported his conviction and that various

procedural defects in the prison hearing process violated his due

process rights. The district court granted summary judgment to the

Warden and dismissed McClung’s petition with prejudice.

     We affirmed the district court with regard to McClung’s

procedural claims, finding them procedurally defaulted, but vacated

and remanded the case for an evidentiary hearing on the sufficiency


                               -4-
of the evidence underlying McClung’s conviction.                  See McClung v.

Shearin,    90    Fed.      Appx.    444   (4th   Cir.    2004)   (unpublished).

Specifically, we directed the district court to explore McClung’s

assertion that his cell was accessible, not only to McClung and his

one cellmate, but also to any of the approximately 140 inmates in

his unit.      See id.      If his cell had been accessible to all inmates

in the unit, we noted, there would have been “insufficient evidence

to   connect     him   to    the    weapon”   arising    from   the    constructive

possession rule.         Id. at 446.



                                           II.

      On remand, at the evidentiary hearing, both sides presented

extensive evidence to the district court on the issue of the

accessibility of McClung’s cell to non-occupants.                     After hearing

the evidence, the district court found that McClung’s unit is not

in a state of perpetual “lock-down.”                    Instead, inmates’ cells

remain unlocked during the day, except during pre-set “head counts”

or if an inmate makes a special request to have his cell locked.

When inmates are not locked in their cells, no regulations restrict

them from walking through the corridors, stopping in front of cell

doors, or spending time in the common areas such as the television

or laundry rooms.        They can, of course, also remain in their cells.

Prison policy states, however, that an inmate may not be in the

cell of another without an occupant present.               Although the precise


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number of inmates present in a unit over the day will vary --

inmates may be out, for example, at work placements or at a meal --

inmates are present in the unit, and around the unlocked cells, in

significant numbers over the course of the day.

     Supervision of the inmates is performed by one correctional

officer    within   the    unit.     That       officer     is   responsible   for

maintaining the security of the unit generally, and also for

performing certain discrete tasks, notably conducting five random

cell or common area searches per shift. During those searches, the

officer cannot visually monitor the full unit.               McClung introduced

evidence that there were other times during the day that the

correctional officer on duty could not observe all areas within the

unit.     For example, when the officer patrolled the second floor

cells, he could not see all of the cells on the first floor.

Additionally, if the officer stepped outside the unit to enforce

the smoking policy, he would not be able to observe all areas

within    the   unit.      The    unit    did   not   contain     any   automated

surveillance      system     to     supplement        the    officer’s    visual

observations.

     McClung’s particular cell was located near the front door

leading to the unit, 20 to 30 feet away from the officer’s station,

and close to the common area television. Officer Strain discovered

the contraband underneath the desk in McClung’s cell, in an area




                                         -6-
that even McClung called “inaccessable” [sic].*        The construction

of the desk was such that a person could not slide the weapon under

the desk from the front, but would have had to lift the desk to

secret the weapon underneath.     Therefore, in order to have planted

the weapon in the cell, another inmate would have had to have been

fully inside the cell for some period of time.             Officer Strain

testified that on September 1, he had not seen another inmate go

into McClung’s cell, nor had McClung complained about anyone

entering his cell without his permission or asked that his cell

door be locked.

     The district court concluded that McClung had presented “no

evidence that other inmates had entered his cell.”           Instead, the

district court found, as a factual matter, that the cell in which

the contraband was found was the “exclusive domain” of McClung and

his cellmate.   In so finding, the district court observed that the

“Due Process Clause does not require continuous lock-down as a

prerequisite    to   imposing   punishment   for   joint   possession   of

contraband in an inmate’s cell.”         Therefore, the court again

dismissed McClung’s petition with prejudice and, again, McClung

appealed.




     *
      We understand McClung’s comment to indicate only that the
area under the desk was not easily or immediately accessible, not
to contradict his principal argument that other inmates could have
entered his cell to plant the contraband.

                                   -7-
                                III.

     When an inmate brings a habeas petition to challenge the

sufficiency of the evidence underlying a revocation of his good

time credits, the requirements of due process are met when “the

findings of the prison disciplinary board are supported by some

evidence in the record.” Superintendent v. Hill, 472 U.S. 445, 454

(1985).   On appeal from denial of such a habeas petition, we review

the district court’s conclusions of law de novo and its findings of

fact for clear error.     Billings v. Polk, 441 F.3d 238, 243 (4th

Cir. 2006).

     If a disciplinary conviction for possession of contraband is

based on the presence of contraband in a particular location, the

constructive possession rule provides “some evidence” of guilt only

when relatively few inmates have access to the area.       Thus, if

McClung were correct that the record demonstrated that scores of

other inmates in the unit had access to the area of his cell in

which the weapon was discovered, the constructive possession rule

standing alone would be insufficient to provide “some evidence” to

support his conviction.    But McClung is not correct.

     Although he did produce evidence at the hearing to suggest

deficiencies in correctional officers’ ability to monitor the

unlocked cell doors at all times, the evidence as a whole tended to

show that gaining access to the interior of McClung’s cell, and the

area beneath the cell’s desk, would have been difficult for another


                                 -8-
inmate.     McClung’s cell was located in a particularly public area

of   the   unit,    and    the   weapon    was    located   in   a   particularly

inaccessible area within that cell.              Furthermore, McClung provided

no evidence that showed that any other inmate had actually gained

access to his cell or that he had requested that his cell be locked

because he feared such occurrence. Given this record, we certainly

cannot say that the factual finding of the district court -- that

McClung’s cell was the “exclusive domain” of its occupants -- was

clearly erroneous.         See United States v. Hill, 473 F.3d 112, 115

(4th Cir. 2007) (noting that a factual finding is only clearly

erroneous if the reviewing court is “left with a definite and firm

conviction that a mistake has been committed after reviewing the

entire record”) (citing United States v. United States Gypsum Co.,

333 U.S. 364, 395 (1948)).

      This situation differs markedly from those cases in which

courts     have    found   the   constructive       possession   rule   provides

insufficient proof of ownership to satisfy the “some evidence”

standard.     For instance, Broussard v. Johnson, 253 F.3d 874, 877

(5th Cir. 2001), relied upon by McClung, held that the constructive

possession rule did not provide some evidence when the contraband

at issue was found in the kitchen area –- an area accessible to 100

inmates.     Cf. Hamilton v. O’Leary, 976 F.2d 341, 346 (7th Cir.

1992) (constructive possession rule would provide some evidence if

inmate was one of four with access).


                                          -9-
      We decline to hold today that an inmate’s unlocked cell,

simply by virtue of being unlocked, becomes transformed into a

common area akin to a kitchen or television lounge in which the

constructive possession rule has no application.                The Due Process

Clause      does   not   require   continuous   lock-down   before    allowing

punishment for possession of contraband found in inmates’ cells.

Therefore, since a dangerous weapon was discovered in a cell that

was   the    “exclusive    domain”   of   McClung   and   his    cellmate,   the

constructive possession rule provides the necessary “some evidence”

sufficient to sustain McClung’s disciplinary conviction.



                                       IV.

      For the foregoing reasons, the judgment of the district court

is

                                                                      AFFIRMED.




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