                                     PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                 _________

                     No. 11-1450
                     _________

               Travis Denny, Appellant

                          v.

        Warden Paul Schultz; James Waterfield

                   _____________

    On Appeal from the United States District Court
             for the District of New Jersey
                (D.C. No. 1-10-cv-00371)
      District Judge: Honorable Renee M. Bumb
                    _____________

             Argued: September 19, 2012

Before: SLOVITER, RENDELL, and HARDIMAN, Circuit
                     Judges

              (Filed: February 15, 2013)

                   ______________
Syed A. Huda (Law Student) [Argued]
Stuart T. Steinberg
Sarah L. Wyatt
Dechert LLP
Philadelphia, PA 19104
Attorneys for Appellant

Paul A. Blaine [Argued]
Office of United States Attorney
Camden, NJ 08101

James B. Clark, III
Office of United States Attorney
Newark, NJ 07102
Attorneys for Appellees

                        ________________

                           OPINION
                        _______________


   SLOVITER, Circuit Judge.


          Appellant Travis Denny, who was an inmate at the
   Federal Correctional Institution (“FCI”) at Fairton, New
   Jersey, challenges the Disciplinary Hearing Officer’s
   (“DHO”) findings upheld by the District Court. The DHO
   found that Denny possessed weapons in violation of a prison
   regulation and sanctioned him with the forfeiture of forty
   days of good time credit and imposition of sixty days in
   disciplinary segregation. During a search, prison officials




                                   2
discovered homemade weapons hidden in Denny’s cell.
Based solely on the presence of the weapons in his two-
inmate cell, Denny was sanctioned as set forth above. He
subsequently submitted a petition for a writ of habeas corpus
to the District Court pursuant to 28 U.S.C. § 2241 arguing,
inter alia, that prison officials violated his Fourteenth
Amendment due process rights by requiring him to forfeit the
good time credits. The District Court sua sponte dismissed
the petition, and Denny appealed.

       I.     Background

       The factual record in this appeal was not fully
developed because the District Court acted sua sponte in
dismissing the case pursuant to 28 U.S.C. § 2243 before the
BOP had entered its appearance and before any discovery had
taken place. Accordingly, the record before this court is
limited to the materials submitted by Denny with his habeas
petition.

        Denny shared his cell with one other inmate. During a
routine search of the cell in March 2009, a corrections officer
found a six and one-half inch long pointed weapon in the duct
work of the vent above the sink between Denny’s cell and an
adjacent cell. “The shank appeared to be made out of fencing
that had been straightened, it had a black electrical tape grip,
a piece of white shoelace for a lanyard and a length of dental
floss tied on to the lanyard.” App. at 42. Upon further
inspection of the vent, the officer “noticed a false bottom in
the duct made out of covers from file folders that had been
cut and taped together to fit the length and width of the duct
between [Denny’s cell and the adjacent cell].” Id. When the
false bottom was removed, the officer found another




                               3
sharpened weapon similar to the first one. The second
weapon was seven inches long and was made out of fencing
with a grip made out of electrical tape and a black shoelace
lanyard attached. 1

       Federal Bureau of Prisons (“BOP”) Program Statement
5270.07, Inmate Discipline and Special Housing Units,
provides that it is an inmate’s responsibility to keep his or her
area free of contraband. See 28 C.F.R. § 541.12 (2008).
Relying upon that Program Statement, the DHO of FCI
Fairton found that Denny had committed the prohibited act of
“Possession of a Weapon,” in violation of BOP Code 104. 2
App. at 44. The DHO sanctioned Denny with sixty days in
disciplinary segregation and the forfeiture of forty days good
time credit. 3 According to Denny, both he and his cellmate

1
  Denny asserts that the two weapons were also accessible to
the inmates in the adjacent cell. Appellees state, without
support in the record, that there were two inmates in the
adjacent cell who “possibly” had access to the area where the
weapons were found. Appellees’ Br. at 13. According to
Denny, however, the adjacent cell may have housed as many
as three inmates.
2
  At the time Denny was charged, BOP Code 104 prohibited
the act of “[p]ossession, manufacture, or introduction of a
gun, firearm, weapon, sharpened instrument, knife, dangerous
chemical, explosive or any ammunition.” See 28 C.F.R.
541.13 (2008). There are four categories of prohibited acts
under BOP regulations: Greatest, High, Moderate, and Low
Moderate. Code 104 is in the Greatest Severity Level
Prohibited Acts category.
3
  The DHO’s written report is not part of the record in this
case, and Appellees state that “Denny did not attach a




                               4
were charged with possession of a weapon, but the inmates in
the adjacent cell, whom he posits may have had access to the
weapons, were not charged.

        Denny appealed first to the BOP Regional Director
and next to the National Inmate Appeals Administrator, both
of whom denied the appeals. The National Inmate Appeals
Administrator wrote that “the greater weight of the evidence
supports the decision, and the sanctions imposed were
appropriate for the offense and in compliance with policy.”
Id. at 46.

       Denny then filed a pro se petition for writ of habeas
corpus. The District Court sua sponte dismissed the petition,
stating that “it is clear that the findings of the [DHO] are
supported by ‘some evidence,’ including the fact that the
contraband weapons were found in the duct work of
Petitioner’s assigned cell.” Id. at 10. Denny appealed to this
court. After he filed a pro se opening brief, this court
appointed pro bono counsel to represent him. Counsel
subsequently filed opening and reply briefs on Denny’s
behalf. 4


complete copy of the Incident Report to the [habeas] petition,
in which an additional statement made by him is recorded.”
Appellees’ Br. at 4 n.3.
4
  Prior to the issuance of a briefing schedule, this court sua
sponte consolidated this appeal with the factually similar
appeal of Jose Hernandez-Zapata. See Hernandez-Zapata v.
Schultz, No. 11-2018. Denny’s pro bono counsel acted as
amicus counsel on behalf of Hernandez-Zapata in the
consolidated appeals. In December 2012, Appellees filed a
suggestion of mootness with this court stating that




                              5
       II.    Analysis

        The District Court had subject matter jurisdiction
pursuant to 28 U.S.C. § 2241, and this court has appellate
jurisdiction under 28 U.S.C. §§ 1291 and 2253(a). This court
reviews a district court’s denial of federal habeas relief de
novo but reviews its factual findings for clear error. See Vega
v. United States, 493 F.3d 310, 314 (3d Cir. 2007).

       Denny presents one claim: that the DHO’s
disallowance of good time credits violates his due process
rights under the Fourteenth Amendment. 5 Federal prisoners
serving a term of imprisonment of more than one year have a
statutory right to receive credit toward their sentence for good
conduct. See 18 U.S.C. § 3624(b); 28 C.F.R. § 523.20


Hernandez-Zapata had completed serving the custodial
portion of his criminal sentence and had been released to
United States Department of Homeland Security, Immigration
and Customs Enforcement detention. On February 8, 2013,
Appellees informed this court that Hernandez-Zapata had
been removed from the United States to Mexico. Because
Hernandez-Zapata has served the custodial portion of his
criminal sentence and because he can suffer no collateral
consequence or continuing injury from the loss of the forty
days good time credit, we conclude that Hernandez-Zapata’s
claim is now moot. See Burkey v. Marberry, 556 F.3d 142,
148 (3d Cir. 2009).
5
  Denny does not argue that his due process rights were
violated when the DHO required him to spend sixty days in
disciplinary segregation nor does he argue that the DHO
hearings were procedurally defective in any way.




                               6
(2008). When such a statutorily created right exists, “a
prisoner has a constitutionally protected liberty interest in
good time credit.” Young v. Kann, 926 F.2d 1396, 1399 (3d
Cir. 1991) (citing Wolff v. McDonnell, 418 U.S. 539, 556-57
(1974)).

        In evaluating prisoners’ due process rights, the court
must be sensitive to the “intricate balancing of prison
management concerns with prisoners’ liberty.” Sandin v.
Conner, 515 U.S. 472, 478 (1995). “Mindful that internal
security is a chief concern in prisons, the [Supreme] Court
recognized that it would be impossible to prevent the
introduction of weapons, drugs and other contraband into the
premises if prisoners maintained a right of privacy in their
cells.” Doe v. Delie, 257 F.3d 309, 316 (3d Cir. 2001) (citing
Hudson v. Palmer, 468 U.S. 517, 527 (1984)). “In order to
further the safe, secure, and orderly running of its
institutions,” the BOP has specifically authorized “searches of
inmates and of inmate housing and work areas to locate
contraband and to deter its introduction and movement.” 28
C.F.R. § 552.10 (2008).

        Notwithstanding the prison’s interest in ensuring
safety and security, a prisoner’s interest in good time credits
“entitle[s] him to those minimum procedures appropriate
under the circumstances and required by the Due Process
Clause to insure that the state-created right is not arbitrarily
abrogated.” Wolff, 418 U.S. at 557. “[R]evocation of good
time does not comport with the minimum requirements of
procedural due process unless the findings of the prison
disciplinary [officer] are supported by some evidence in the




                                7
record.” 6 Superintendent v. Hill, 472 U.S. 445, 454 (1985)
(internal quotation marks and citation omitted). As this court
has clarified, the “some evidence” standard is a standard of
appellate review to be applied by the district court rather than
a burden of proof in a prison disciplinary proceeding. See
Brown v. Fauver, 819 F.2d 395, 399 n.4 (3d Cir. 1987).

        In Hill, a Massachusetts state prison guard opened a
door to a walkway to find an inmate bleeding from the mouth
and suffering from a swollen eye. The guard observed three
inmates jogging together down the walkway, away from the
scene. The guard “concluded that one or more of the three
inmates had assaulted [the victim] and that they had acted as a
group.” Hill, 472 U.S. at 448. Two of the inmates were
found to have planned, aided, or participated in the assault, in
violation of prison regulations, despite written statements
from the victim that they had not caused his injuries. Based
solely upon the testimony and written statements of the guard,
prison officials sanctioned each of the two inmates with the
forfeiture of 100 days of good time credits as well as 15 days
in isolation. The Supreme Court upheld the deprivation of
good time credits, noting that “[a]lthough the evidence in this

6
  Denny concedes that Hill’s “some evidence” standard
applies to his claim but argues that “[r]evocation of an
inmate’s good conduct time must be based on the greater
weight of the evidence.” Appellants’ Br. at 8-9. According
to BOP regulations, the DHO’s decision “shall be based on at
least some facts, and if there is conflicting evidence, it must
be based on the greater weight of the evidence.” 28 C.F.R. §
541.17(f) (2008). Denny, however, points to no conflicting
evidence that would trigger the regulation’s greater weight of
the evidence requirement.




                               8
case might be characterized as meager, and there was no
direct evidence identifying any one of three inmates as the
assailant, the record is not so devoid of evidence that the
findings of the disciplinary board were without support or
otherwise arbitrary.” Id. at 457.

         The key question in this case is what limit the Due
Process Clause places on the constructive possession theory
in the prison context. Denny argues that constructive
possession in the prison context requires a showing of
“dominion and control over the contraband, as well as
knowledge of it.” Appellants’ Br. at 9. While it is true that
this is the standard definition of constructive possession in
this circuit, Denny does not cite a single case from this court
or any other court applying this definition of constructive
possession in the prison context. 7 As noted above, the
Supreme Court has held that a prison disciplinary decision
need only be supported by “some evidence” in order to satisfy
due process. Hill, 472 U.S. at 454. Though the “some
evidence” standard is a standard of appellate review and not a
burden of proof, see Brown, 819 F.2d at 399 n.4, a reviewing

7
  Judge Rendell asserts that “[i]t is axiomatic that constructive
possession requires either the exercise of control or dominion,
or the power and intention to exercise dominion or control,
over property.” Dissenting Op. of Rendell, J. at 1. As with
Denny, Judge Rendell does not cite any case applying this
definition of constructive possession in the prison context.
There are no such cases because to apply this standard of
constructive possession in the prison context would place an
unreasonably high burden on prison officials, given their
significant interest in maintaining safety and security within
the prison.




                               9
court need only find that the DHO’s decision had “some basis
in fact” in order to affirm the decision as comporting with the
Due Process Clause. Hill, 472 U.S. at 456.

        Courts that have considered this question have
uniformly held that the discovery of contraband in a shared
cell constitutes “some evidence” of possession sufficient to
uphold a prison disciplinary sanction against each inmate in
the cell, including depriving that inmate of his or her liberty
interest in good time credits. The Seventh Circuit, applying a
probability-based approach, held that a twenty-five percent
probability that contraband found in a four-person cell
belonged to one of the inmates constituted “some evidence.”
See Hamilton v. O’Leary, 976 F.2d 341, 345-46 (7th Cir.
1992) (“The proposition that constructive possession provides
‘some evidence’ of guilt when contraband is found where
only a few inmates have access is unproblematical.”). More
recently, the Eighth Circuit concluded that discovery of two
homemade weapons found above the entry door to the
common area of an eight-person cell constituted “some
evidence” of possession. See Flowers v. Anderson, 661 F.3d
977, 980-81 (8th Cir. 2011) (relying on a collective
responsibility theory whereby each inmate is collectively
culpable for contraband found in a shared area).

       The BOP relies exclusively on a theory of collective
responsibility to argue that the DHO’s findings and sanctions
should be upheld. “Through the judicially recognized
adaptation of collective responsibility . . . the courts have
been willing to accept the probabilities that an inmate has
committed a sanctionable prohibited act when no direct
evidence links him to it.” Appellees’ Br. at 8. The BOP
further asserts that “[i]ncarcerated inmates are often violent




                              10
people with demonstrated proclivities for antisocial criminal
conduct. Having stripped them of virtually every means of
self-protection and outside aid, the BOP is not free to let the
state of nature take its course.” Id. at 8-9.

       Not only has the Eighth Circuit endorsed the
application of collective responsibility, see Flowers, 661 F.3d
at 980-81, but a judge of the Seventh Circuit has also
suggested that he would subscribe to the collective
responsibility theory. See Hamilton, 976 F.2d at 347 (stating
that “purely collective guilt” might be deemed to satisfy due
process in the prison context) (Posner, J., dissenting).

        The application of collective responsibility in the
prison context has its foundation in BOP Program Statement
5270.07, Inmate Discipline and Special Housing Units, which
provides that it is an inmate’s responsibility to keep his or her
area free of contraband. See 28 C.F.R. § 541.12 (2008).
Although the BOP Program Statement does not define the
term “area,” a prisoner’s area at a minimum includes the
prisoner’s cell as well as any other space accessible from
within the cell. In a shared cell, all parts of the cell are
equally accessible to each prisoner housed in the cell. Thus,
each individual prisoner is responsible for keeping the entire
cell free from contraband. Because each prisoner in a shared
cell has an affirmative responsibility to keep the entire cell,
and all other space accessible from within the cell, free from
contraband, it follows that any contraband found within the
cell is constructively possessed by each of the inmates housed
in that cell. Thus, the mere discovery of contraband in a
shared cell constitutes “some evidence” that each prisoner in
that cell possessed the contraband.




                               11
        Judge Rendell suggests that “this reasoning would
allow prison officials to ignore the clear dictates of Hill, and
be held to a lesser–indeed, unrelated–standard, i.e., collective
guilt, as a substitute for the ‘some evidence’ of possession
requirement.” Dissenting Op. of Rendell, J. at 4. She further
asserts that “[t]he offense of ‘possession’ (just like ‘killing’
and ‘assault’) is no different in the prison context than outside
that context.” Id. Contrary to Judge Rendell’s mistaken
understanding of Hill, the “some evidence” standard of
appellate review dramatically reduces the amount of evidence
required for an inmate to be held responsible for offenses
such as killing, assault, and possession of a weapon. In Hill,
prison officials found two inmates responsible for assaulting
another prisoner and deprived them each of 100 days of good
time credits based solely on the testimony of a guard who
observed them and a third prisoner leaving the scene. Such
evidence would never be enough to find a defendant guilty of
assault in a regular criminal courtroom, yet the Supreme
Court held that it was sufficient to satisfy the Due Process
Clause.

        Furthermore, though the term collective responsibility
or collective guilt does not appear in the Supreme Court’s
opinion in Hill, in that case the Court implicitly endorses the
application of collective responsibility to facts such as those
at issue here. Three inmates were observed leaving the scene
of an assault in Hill, and two of those inmates were held
responsible. In the absence of evidence directly linking any
one of the inmates to the assault, the Supreme Court upheld
the prison’s sanctioning of two of those inmates as being not
“without support or otherwise arbitrary.” Hill, 472 U.S. at
457. In this case, two inmates shared a cell in which two
homemade shanks were found, and one of those inmates,




                               12
Denny, was sanctioned for possession of a weapon. The
weapons may have belonged to Denny’s cellmate, but in
accordance with Hill, prison officials did not violate Denny’s
due process rights when they deprived him of his good time
credits. Prison officials here had as evidence not only the
presence of the weapons in a two-inmate cell but also the
affirmative responsibility, of which the inmates were clearly
on notice, that they were to keep their “area” free from
contraband. 8 The evidence in this case, therefore, is more
substantial than the evidence presented against the inmates in
Hill.

         We are not oblivious to the realities of prison life that
might make it difficult or even dangerous for prisoners in
shared cells to be affirmatively responsible for policing the
illicit activities of their cellmates. Nonetheless, the Due
Process Clause requires us to balance a prisoner’s liberty
interest in good time credits against the prison’s interest in

8
 Judge Rendell states in a footnote that “[i]f possession in the
prison context embraces collective responsibility, as the
majority contends, then any cellmate of a prisoner who is
authorized to take medication would impermissibly be in
‘possession’ of another prisoner’s medication by virtue of its
presence in their shared cell.” Dissenting Op. of Rendell, J. at
4 n.7. Assuming, as Judge Rendell does in her hypothetical,
that one of the prisoners is authorized to take the medication
in question, the medication would not be contraband, and the
prisoner’s cellmate would have no affirmative responsibility
to keep the cell free from such authorized medication. Thus,
under this court’s opinion, the cellmate would not be
impermissibly in “possession” of the medication simply
because of its presence in the cell.




                                13
maintaining a safe and secure environment. See Sandin, 515
U.S. at 478. Assaults by inmates on both staff and other
inmates are a major problem facing the federal prison system.
From January to May 2012, there were approximately 215
serious assaults by inmates on other inmates and twelve
serious assaults by inmates on prison staff. See Federal
Bureau of Prisons, Assault Graphs, available at
http://www.bop.gov/news/research_projects/assaults/assaults.
jsp (last visited Oct. 12, 2012). For the same time period,
there were over 1,000 less serious assaults by inmates on
other inmates as well as nearly 700 less serious assaults by
inmates on prison staff.9 Id. Prison safety concerns are
particularly acute where, as here, the contraband consisted of
weapons that even Denny’s counsel conceded were
potentially lethal.

       In the case before us, it is undisputed that two
homemade shanks were found in a space accessible from
within Denny’s cell. This evidence, by itself, constitutes
“some evidence” that Denny possessed the weapons in
question. Furthermore, and as noted herein, both the Seventh
and Eighth Circuits have held inmates responsible for
possession of contraband under circumstances similar to those

9
  Under BOP regulations, an inmate commits a Code 101
serious assault for “[a]ssaulting any person, or [for] an armed
assault on the institution’s perimeter (a charge for assaulting
any person at this level is to be used only when serious
physical injury has been attempted or accomplished).” 28
C.F.R. § 541.3(b), Table 1 (2012). An inmate commits a
Code 224 less serious assault “when less serious physical
injury or contact has been attempted or accomplished by an
inmate.” Id.




                              14
present here. We see no reason to diverge from these courts.
It follows that the DHO did not violate Denny’s due process
rights when it found that he had committed the prohibited act
of “Possession of a Weapon,” in violation of BOP Code 104,
and sanctioned him with the forfeiture of forty days good
time credit.

      III.   Conclusion

       Accordingly, we will affirm the judgment of the
District Court




                             15
RENDELL, Circuit Judge, dissenting.

       The Supreme Court has recognized for over three decades that prison
inmates have a fundamental liberty interest in good-time credits, which is
protected by the mantle of the Due Process Clause. See Superintendent v. Hill,
472 U.S. 445, 454 (1985); Wolff v. McDonnell, 418 U.S. 539, 557 (1974). An
inmate cannot be deprived of good-time credits for a transgression unless the
prison official’s findings are supported by “some evidence” in the record, “some
basis in fact.” Hill, 472 U.S. at 454.

       The majority opinion acknowledges that “some evidence” is our standard of
review, and that possession of a weapon—here, constructive possession—is the
offense that must be established. It is axiomatic that constructive possession
requires either the exercise of control or dominion, or the power and intention to
exercise dominion or control, over property. 1 Where, as here, the items in
question were not in plain view, and the accused did not exclusively occupy the
premises, there is no inference of the power and intention to exercise dominion or
control, and some other factual support for the accused’s connection to the item is
required. 2 Thus, as a reviewing court, we can affirm the District Court’s dismissal

1
 See, e.g., United States v. Jenkins, 90 F.3d 814, 817 (3d Cir. 1996) (recognizing
that under federal criminal law, “[c]onstructive possession necessarily requires
both ‘dominion and control’ over an object and knowledge of that object’s
existence”) (quoting United States v. Brown, 3 F.3d 673, 680 (3d Cir. 1993)); 1A
Kevin O’Malley, Federal Jury Practice & Instructions, Criminal § 16:05 (6th ed.
2006) (“A person who, although not in actual possession, knowingly has both the
power and the intention at a given time to exercise dominion or control over a
thing, either directly or through another person or persons, is then in constructive
possession of it.”); Black’s Law Dictionary 1282 (9th ed. 2009) (defining the term
as the fact of having “[c]ontrol or dominion over a property without actual
possession or custody of it”). The majority suggests that these authorities are not
controlling because they do not apply to the prison context, but I cannot imagine
that the Prohibited Acts listed by the prison (see infra p. 2) are somehow to be
defined differently than they are defined as a matter of law; that, too, would have
due process implications, as I discuss below.
2
 Courts generally have held that when a defendant “was not in exclusive
possession of the premises, it may not be inferred that he knew of the presence of
the [hidden contraband] and had control over them, unless there are other
incriminating statements or circumstances tending to buttress such an inference.”
United States v. Bonham, 477 F.2d 1137, 1139 (3d Cir. 1973) (en banc) (quoting
Evans v. United States, 257 F.2d 121, 128 (9th Cir. 1958)); see also United States
v. Griffin, 684 F.3d 691, 697-98 (7th Cir. 2012) (affirming a similar approach and

                                         1
of Travis Denny’s petition for habeas corpus only if the alleged facts provided
“some basis in fact” that supported the prison officials’ determination that the
inmate actually exercised or intended to exercise dominion or control over the
shanks in question. 3 However, relying on an unrelated section of the prison
regulations, and substituting “collective responsibility” for individual guilt, the
majority opinion sidesteps this standard of review, and sanctions the deprivation of
Denny’s due process without any evidence to support the determination that he
“possessed” the shanks in question.

       “Possession” of a weapon is an offense listed under Code 104 of the federal
prison regulations, along with over 80 other offenses, including:

        Code     Prohibited acts
        ...
        100      Killing
        101      Assaulting any person (includes sexual assault) or an armed
                 assault on the institution’s secure perimeter (a charge for
                 assaulting any person at this level is to be used only when
                 serious physical injury has been attempted or carried out by
                 an inmate)
        102      Escape from escort; escape from a secure institution (low,
                 medium, and high security level and administrative
                 institutions); or escape from a minimum institution with
                 violence
        103      Setting a fire (charged with this act in this category only
                 when found to pose a threat to life or a threat of serious
                 bodily harm or in furtherance of a prohibited act of Greatest
                 Severity . . .)
        104      Possession, manufacture, or introduction of a gun, firearm,
                 weapon, sharpened instrument, knife, dangerous chemical,
                 explosive or any ammunition

recognizing it is consistent with the reasoning of sister courts of the Third, Fifth,
Ninth, Tenth, and D.C. Circuits).
3
 Under 28 U.S.C. § 2243, a district court may dismiss a habeas corpus petition
without an evidentiary hearing if it plainly appears from the face of the petition
that the petitioner is not entitled to relief. See Zettlemoyer v. Fulcomer, 923 F.2d
284, 291 (3d Cir. 1991). In reviewing such a decision, we are effectively in the
position of the district court, and undertake a two-step inquiry, which requires us
to determine: (1) whether the petitioner has alleged facts that would suggest he is
entitled to relief, and if so, (2) whether an evidentiary hearing is necessary to
establish the truth of those allegations. Id. at 291 & n.5.

                                         2
        105     Rioting
        106     Encouraging others to riot

        ***

28 C.F.R. § 541.13 tbl. 3 (2008). Under Superintendent v. Hill, in order for Denny
to have been deprived of good-time credits based upon “possession” of a weapon,
there must have been some evidence in the record, i.e., some basis in fact, to
support the prison officials’ determination that he exercised, or intended to
exercise, dominion or control over the shanks. On the record before us, there is no
such evidence—none, not just less than “some evidence.” 4

       According to the record, the two shanks were found in an area that Denny
did not occupy or exclusively enjoy. The shanks were found in a duct, spanning
the distance between his cell and another cell, which was situated behind a vent
located above the sink in the cell Denny shared with his cellmate. There were no
other indicia to suggest that Denny had any connection or nexus to the shanks that
would suggest dominion or control.

       Had the items in question been attached to Denny’s locker or bed, or even
in plain view, there may have been a basis in fact for concluding that he possessed
them. A permissible inference of actual exercise of dominion or control, or power
and intent to do so, could have been drawn from such facts and there would then
be “some evidence” of constructive possession. See note 2, supra. In Hill, the
security guard heard a scuffle and upon immediate investigation saw the three
inmates leaving the scene of the assault, which—importantly—occurred in an
enclosed walkway, where no other individuals, except the victim, were present in
the area. 472 U.S. at 456. 5 These facts led to the prison officials’ determination

4
 It is interesting to note that evidence of de minimis probative value, i.e., any
evidence that would faintly tend to make an inmate’s guilt more probable, does not
constitute “some evidence” under this standard of review. See, e.g., Zavaro v.
Coughlin, 970 F.2d 1148, 1152-53 (2d Cir. 1992) (concluding that prison guard
statements that “every inmate” participated in a riot were not plausible and thus
could not constitute “some evidence” of an inmate’s participation when the inmate
was one of a hundred inmates in a large mess hall); see also Gerald L. Neuman,
The Constitutional Requirement of ‘Some Evidence,’ 25 San Diego L. Rev. 631,
662-63, 678 (1988) (explaining why the term “some evidence” “cannot be taken
literally—the smallest quantum of relevant evidence will not suffice”).
5
 This is a key fact (one that the majority omits) that clearly provides, in the form
of circumstantial evidence, “some evidence” to support the prison officials’
determination that the three inmates committed the assault in Hill.

                                         3
that the three prisoners were the perpetrators, and the Supreme Court held that
these facts satisfied the “some evidence” test on review. Id. By contrast, there are
no facts that support the determination that Denny exercised, or intended to
exercise, dominion or control over the weapons.

        Instead of addressing this issue, the majority opinion takes us on a detour
to an unrelated provision of the prison regulations that contains twenty-two rights
and responsibilities of prisoners. One of these responsibilities advises:

       It is your responsibility not to waste food, to follow the laundry and
       shower schedule, to maintain neat and clean living quarters, to keep
       your area free of contraband, and to seek medical and dental care as
       you may need it.

28 C.F.R. § 541.12 (emphasis added). 6 This, the majority opinion urges, provides
for “collective responsibility,” such that inmates are collectively responsible for
contraband if their “areas” are not “free” of such contraband. Thus, the majority
opinion reasons, Denny can be deprived of good-time credits for “possessing” the
shanks in question because all of the inmates in his “area” are collectively
responsible. However, this reasoning would allow prison officials to ignore the
clear dictates of Hill, and be held to a lesser—indeed, unrelated—standard, i.e.,
collective guilt, as a substitute for the “some evidence” of possession requirement.
This cannot be.

       Had the prison officials desired to define “possession” in some broader
manner so as to sweep in an inmate’s association with any article found in or near
his cell, they could have done so. Similarly, they could have dictated that non-
adherence to “responsibilities” could result in loss of good-time credits. But they
have done neither. Instead, they have prohibited “possession,” which would
appear—like killing, assault, and the other listed offenses—to require evidence
probative of the inmate’s commission of the offense in question. There is no basis
for ascribing vague concepts of collective responsibility onto the legal meaning of
“possession” when a prisoner is the offender. The offense of “possession” (just
like “killing” or “assaulting”) is no different in the prison context than outside that
context. 7

6
 The regulations do not attach any sanction for an inmate’s failure to adhere to this
responsibility or any of the other delineated responsibilities.
7
 Other sections of the prison regulations buttress the conclusion that no such
difference exists, as demonstrated by examining other “possession” offenses listed
as Prohibited Acts. One such offense, for example, is “[p]ossession of any . . .
drugs . . . not prescribed for the individual by the medical staff” is a prohibited act

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        To the extent that the majority opinion adopts the view that the standard for
“possession” is somehow different in prison, it ignores the fact that the regulations
fail to give inmates notice of this alternative standard. Although our Court has
“reject[ed] the view that the degree of specificity required of such regulations is as
strict in every instance as that required of ordinary criminal sanctions,” we
nonetheless have recognized that “[d]ue process undoubtedly requires certain
minimal standards of specificity in prison regulations.” Meyers v. Aldredge, 492
F.2d 296, 310 (1974).

       To say, as the majority opinion does, that all of the inmates share
responsibility is not the same as saying that there is “evidence” that a particular
inmate “possessed” the weapon. 8 Courts that have said otherwise are just plain
wrong. 9 Adopting such reasoning endorses the exact arbitrary deprivation of
good-time credits that Hill proscribed. 472 U.S. at 455.

       The majority opinion urges that it is our job to “balance” a prisoner’s
liberty interest against the interest of the prison in maintaining the safety and
security of inmates and prison staff. But in Hill, the Supreme Court settled upon
the “some evidence” standard, a standard of review that is admittedly deferential
to the prison authorities, so as to achieve the necessary balance between an

under Code 113. 28 C.F.R. § 541.13 tbl. 3. Possession by the inmate for whom
the medicine is prescribed is permitted, but as to that inmate’s cellmate, it
constitutes contraband since “contraband” is defined as, inter alia, “material
prohibited by law, or by regulation,” 28 C.F.R. § 500.1, and the regulation
prohibits possessing medication that was “not prescribed for the individual.” If
possession in the prison context embraces collective responsibility, as the majority
contends, then any cellmate of a prisoner who is authorized to take medication
would impermissibly be in “possession” of another prisoner’s medication by virtue
of its presence in their shared cell.
8
 One case upon which the majority relies to support its position that “collective
responsibility” can constitute “some evidence” is Flowers v. Anderson, 661 F.3d
977 (8th Cir. 2011). This case, however, is distinguishable because the inmates
there did “not contest the general proposition that an inmate’s failure to keep his
living area free of contraband may constitute some evidence of a violation when
contraband is found in that area”—which is the centrally disputed issue in this
appeal. Id. at 981.
9
 Similarly, a probability-based approach to possession is also flawed. See, e.g.,
Hamilton v. O’Leary, 976 F.2d 341, 345-46 (7th Cir. 1992). It is essentially akin
to speculation; probabilities alone are not “some evidence.” See note 4, supra.


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inmate’s interests and a prison’s interests. See id. (“Requiring a modicum of
evidence to support a decision to revoke good time credits will help to prevent
arbitrary deprivations without threatening institutional interests or imposing undue
administrative burdens.”); see also Wolff, 418 U.S. at 560-71 (recognizing that
consideration of what minimum procedures due process requires in prison
disciplinary proceedings, e.g., advance written notice of the alleged violation or a
written statement of findings, necessitates balancing “the inmate’s interest in
avoiding loss of good time against the needs of the prison”). That balance has
been struck; the majority’s analysis essentially dilutes the “some evidence”
standard, effectively resetting the balance in favor of the prison and against the
inmate. That is uncalled for.

        I, thus, respectfully dissent from the majority’s view that Denny has failed
to set forth a constitutional violation in his petition for habeas corpus relief. When
viewed in the light most favorable to him, the petition clearly reveals that the
prison officials’ determination that Denny possessed weapons is not supported by
“some basis in fact,” so as to support the denial of good-time credits. This is
sufficient to bar dismissal under 28 U.S.C. § 2243. I would accordingly vacate the
District Court’s dismissal order.




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