                                                                  NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   ___________

                                       No. 10-1147
                                       ___________

                             DAMIEN STEPHEN DONAHUE,
                                               Appellant
                                        v.

                      J. GRONDOLSKY, WARDEN, F.C.I. - FT. DIX
                         ____________________________________

                       On Appeal from the United States District Court
                              for the District of New Jersey
                               (D.C. Civ. No. 08-cv-05533)
                             District Judge: Noel L. Hillman
                        ____________________________________

                      Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     August 24, 2010

             Before: RENDELL, HARDIMAN and ALDISERT, Circuit Judges

                            (Opinion filed: September 13, 2010)
                                        ___________

                                        OPINION
                                       ___________

PER CURIAM

          Appellant Damian Donahue appeals from the District Court’s order denying his

petition for writ of habeas corpus, 28 U.S.C. § 2241. For the foregoing reasons, we will

affirm.

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       Donahue was sentenced in United States District Court for the District of

Minnesota on May 30, 2003 to a term of imprisonment of 120 months for conspiracy to

possess with intent to distribute in excess of 900 grams of methamphetamine in violation

of 21 U.S.C. § 841(b)(1)(A) and § 846. While incarcerated at the Federal Prison Camp in

Duluth, on December 3, 2007, a correctional officer found a piece of white tape on the

outside back of Donahue’s bottom clothing drawer in dorm M room 208. Inside the tape

was a cellular phone SIM (Subscriber Identity Module) card. Donahue was charged with

violating code 199 for engaging in: “Conduct which disrupts or interferes with the

security or orderly running of the institution” by engaging in conduct most like

“Possession, manufacture, or introduction of a hazardous tool (code 108).” A code level

100 misconduct is the most serious form of misconduct. 28 C.F.R. § 541.13 Tables 3-5.

       Donahue denied that the SIM card was his. He maintained throughout the

disciplinary proceedings that he had been set up by other inmates, but he had no witnesses

or documentary evidence to support this assertion. Because of the seriousness of the

misconduct, the Unit Disciplinary Committee referred the matter for a hearing.

Following a hearing on December 14, 2007 before a Disciplinary Hearing Officer

(“DHO”), at which Donahue was present, the DHO found that Donahue had committed

the prohibited act and imposed the following sanctions: (1) 15 days disciplinary

segregation; (2) disallowance of 41 days Good Conduct Time (“GCT”); and (3) forfeiture




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of 166 days of non-vested GCT. He also recommended a disciplinary transfer.1 The

DHO explained the reason for the sanctions as follows:

             Inmates are provided an account number to enter into the Inmate Telephone
             System (ITS), to ensure that staff can identify inmates using the phone for
             illicit or illegal purposes. Inmates who circumvent the ITS monitoring by
             using a cell phone have been known to disrupt the safety and security of the
             institution, by arranging drug-contraband introductions, providing messages
             related to gang activity, and/or to extort money. Sanctions were imposed to
             express the seriousness of the infraction. Although not directly related to
             the infraction, privileges were taken to deter the inmate from this behavior
             in the future.

Supp. App. at 60. Donahue’s release date prior to the imposition of these sanctions was

May 4, 2012, assuming he earned all GCT available to him; now Donahue will not be

released until November 19, 2012.

       Donahue pursued the Bureau of Prison’s Administrative Remedy Program, 28

C.F.R. § 542.10 et seq. He submitted a Regional Administrative Remedy Appeal to the

BOP’s Northeast Regional Office, contending generally that there was a lack of evidence

to support the charge, because, for example, just about anyone in the prison camp had

access to his dorm room. Also, his room had been thoroughly searched that morning and

no contraband was discovered. Donahue also asserted that on December 6, 2007 he asked

a Lieutenant to investigate the SIM card by verifying the cellular phone number assigned

to it. Donahue also asked for a list of telephone numbers on the card. He never received




   1
     Donahue is now incarcerated at the Federal Correctional Institution in Fort Dix, New
Jersey.

                                            3
this information, which he claimed was exculpatory, and thus his right to procedural due

process at his hearing was violated. Donahue asked the Regional Director to restore his

GCT.

       The Regional Director denied the appeal, explaining:

              Your involvement in the incident was based upon the fact that the [SIM]
              card was discovered in your assigned area. Program Statement 5270.07,
              Inmate Discipline, states, it is an inmate’s responsibility to keep his or her
              area free of contraband. You had access to the area where the card was
              found. You are responsible for checking your area for contraband.... There
              is no evidence to support your argument that the card was taped to your
              drawer by another inmate. Even if other inmates had access to the area in
              question, you were responsible for items in the particular area where the
              card was found.

Supp. App. at 22. The Regional Director specifically rejected Donahue’s argument that

the contents of the SIM card had any bearing on his guilt, explaining:

              The conduct involved in this incident involved a SIM card, which, in a
              prison setting, is deemed a hazardous tool. Thus, you were properly
              charged with an infraction categorized as a Greatest Severity misconduct.
              As noted above, your involvement in this incident was based upon the
              discovery of the card in your assigned area. The contents of the card are
              irrelevant to this particular charge.

Id.

       Donahue appealed the Regional Director’s decision to the Central Office,

repeating his assertion that the clothes drawer where the SIM card was found was not

secured by a lock and thus was accessible to other inmates. Donahue did not pursue any

issue with respect to prison officials’ failure to investigate the contents of the SIM card.

In a response dated August 25, 2008, the Administrator, National Inmate Appeals, denied

                                              4
Donahue’s Central Office appeal.

      The instant habeas corpus petition, 28 U.S.C. § 2241, in which Donahue sought

restoration of 207 GCT days and expungement of the misconduct, followed. Donahue

claimed that his right to procedural due process during the disciplinary proceedings was

violated because the information on the SIM card was exculpatory and not disclosed to

him. He also contended that the evidence of misconduct was insufficient. The BOP,

through the respondent Warden, answered the petition and argued that Donahue had only

partially exhausted his administrative remedies because he abandoned the SIM card

exculpatory evidence claim on appeal to the Central Office. The BOP also addressed

each of Donahue’s arguments on the merits. Donahue then filed a reply.

      In an order entered on November 5, 2009, the District Court denied the habeas

corpus petition. The court found that there was no denial of procedural due process in

Donahue’s case, notwithstanding that the contents of the SIM card remained unrevealed

(to both Donahue and the BOP, evidently). The court reasoned, in pertinent part, that

Donahue did not timely request this information from anyone involved in the

investigation or involved in the disciplinary proceedings before or at his DHO hearing, or

even at his UDC hearing. In the alternative, even if Brady v. Maryland, 373 U.S. 83

(1963), applied to prison disciplinary proceedings, there was no exculpatory evidence

obtained during the investigation that was not disclosed to Donahue. The contents of the

SIM card could not have exonerated Donahue because of the nature of the charge against



                                            5
him.

       In addition, the District Court concluded that the DHO’s findings were supported

by “some evidence in the record,” Superintendent v. Hill, 472 U.S. 445, 454-55 (1985).

The DHO found, and Donahue did not dispute, that the SIM card was found taped to the

back of his clothes drawer in his dorm room. The court rejected Donahue’s constructive

possession argument for lack of any evidence to support it other than his self-serving

assertion that another inmate had set him up.

       Donahue timely appeals. In his brief on appeal, Donahue again suggests that the

SIM card was planted. He asserts that his area was thoroughly searched prior to 9:00 a.m.

on the morning of December 3, 2007. He asserts that his clothes drawers were

completely removed and searched and no contraband was discovered in his presence.

While the search was ongoing, he was taken away to attend a disciplinary hearing on a

different charge, and then taken immediately to disciplinary confinement. He did not

return to his dorm room prior to the SIM card being discovered at 12:40 p.m. He also

contends that, contrary to the District Court’s finding, he repeatedly and timely made

numerous requests for the contents of the SIM card. Moreover, the UDC refused to

document his request for this evidence. Donahue contends that he is entitled to the

contents of the SIM card, which would have been relatively easy for the BOP to extract,

in order to prove his innocence. He also contends that the evidence of his guilt was

insufficient because “140 inmates all had opportunity and potential access to his



                                             6
unsecured clothes drawers.” See Appellant’s Informal Brief, at 6.

       We will affirm. We have jurisdiction under 28 U.S.C. § 1291. United States v.

Ceparo, 224 F.3d 256, 264-65 (3d Cir. 2000) (certificate of appealability not required to

appeal from denial of section 2241 petition). A challenge to the BOP’s execution of a

sentence is properly brought under 28 U.S.C. § 2241. See Burkey v. Marberry, 556 F.3d

142, 146 (3d Cir.), cert. denied, 130 S. Ct. 458 (U.S. 2009). We exercise plenary review

over the District Court’s legal conclusions and apply a clearly erroneous standard to its

factual findings. See Rios v. Wiley, 201 F.3d 257, 262 (3d Cir. 2000).

       The BOP has argued that Donahue did not fully and properly exhaust his

administrative remedies, because he abandoned his specific argument concerning the

exculpatory contents of the SIM card on appeal to the Central Office. Although there is a

procedural default defense available under Moscato v. Federal Bureau of Prisons, 98 F.3d

757, 760 (3d Cir. 1996), because Donahue’s claims plainly lack merit, we will not reach

the exhaustion of administrative remedies argument.

       Under BOP regulations, an inmate is entitled: (a) to 24-hour advance written

notice of the charge before the inmate’s initial appearance before the DHO; (b) to a staff

representative at the DHO hearing; (c) to make a statement and present documentary

evidence at the DHO hearing; (d) to call witnesses to testify on his behalf and submit

questions for those witnesses; and (e) to be present throughout the hearing, except during

a period of deliberation or when institutional security would be jeopardized. 28 C.F.R. §



                                             7
541.17(a)-(d). The DHO must prepare a record of the proceedings that documents,

among other things, the DHO’s findings, the specific evidence relied upon by the DHO,

and the DHO must give a brief statement of the reasons for the imposition of sanctions,

see id. at § 541.17(g). The inmate must be given a written copy of the DHO’s decision

and disposition, see id.

       These procedures generally comport with the constitutional procedural due process

requirements prescribed by Wolff v. McDonnell, 418 U.S. 539 (1974). Wolff requires

24-hour advance written notice of the disciplinary charges, the opportunity when

consistent with institutional and correctional goals to call witnesses and present

documentary evidence, assistance in complex cases, and a written statement from the

fact-finder as to the evidence relied on and the reasons for the disciplinary action. See id.

at 563-67.

       Donahue does not contend that the above procedures were not followed in his

case. As to his contention concerning his right to an examination of the contents of the

SIM card, the District Court properly found that Donahue did not make a timely request

to anyone directly involved in the disciplinary proceedings. The record reflects that

Donahue first raised the exculpatory evidence issue on appeal to the Regional Director

from the DHO’s decision. That was too late for any prison official at the hearing level to

respond appropriately to the request. At a minimum, Donahue should have brought his

concern about the contents of the SIM card to the attention of the DHO at his disciplinary



                                              8
hearing on December 14, 2007, and he should have asked for a postponement of the

hearing. Cf. 28 C.F.R. § 541.17(b) (“The DHO shall afford a staff representative

adequate time to speak with the inmate and interview requested witnesses where

appropriate. While it is expected that a staff member will have had ample time to prepare

prior to the hearing, delays in the hearing to allow for adequate preparation may be

ordered by the Discipline Hearing Officer.”). And if, as Donahue asserts on appeal, the

UDC had previously refused to document his request for this evidence, he should have

called that alleged refusal to the attention of the DHO as well.

        Instead, the record shows that Donahue waived his right to a staff representative

who might have been able to assist him, and limited his defense to a statement that

“[s]taff are in my room every week looking for something” and “I was set up.” Supp.

App. at 59-60. This is not sufficient to put the DHO on notice that he wanted to present

specific evidence of the contents of the SIM card. Further, we conclude that the District

Court did not clearly err in determining that Donahue’s alleged prior effort to raise the

issue with a staff member involved in some other investigation was not sufficient to bring

the matter to the attention of prison officials actually involved in disciplining him in this

case.

        In any event, even if Donahue had timely requested the information, because he

was charged only with possession of a SIM card as hazardous contraband, the content of

the SIM card was not material evidence, just as the Regional Director concluded. The



                                              9
Seventh Circuit Court of Appeals has held that the rule of Brady v. Maryland requiring

the disclosure of material exculpatory evidence applies to prison disciplinary proceedings.

See Chavis v. Rowe, 643 F.2d 1281, 1285-86 (7th Cir. 1981). See also Piggie v. Cotton,

344 F.3d 674, 678 (7th Cir. 2003) (citing Young v. Kann, 926 F.2d 1396, 1403 (3d Cir.

1991) (claim that hearing officer violated inmate’s right to due process by refusing to

produce letter in which inmate allegedly threatened cell-mate should not have been

dismissed as frivolous)). But see Griffin v. Spratt, 969 F.2d 16, 22 (3d Cir. 1992)

(limiting due process violation to circumstance where “existing evidence is improperly

withheld and hearsay is offered in its place”). But identifying the true owner of the SIM

card (assuming it was not Donahue) by verifying the cellular phone number assigned to it

and/or revealing the list of calls made and received would not have exonerated Donahue

of possession of contraband. The contents of the SIM card was not material evidence,

and the fact remains that it was found taped to the back of his bottom clothes drawer, and

Donahue does not dispute that SIM cards are properly prohibited in the prison setting; nor

does he dispute the reasonableness of the requirement that inmates keep their assigned

area free of contraband.

       As to his assertion that the evidence was insufficient to find him guilty of the

prohibited act, the record shows that Donahue came forward with no evidence to

substantiate his assertion that he had been set up. Donahue argues on appeal that his area

was thoroughly searched on the morning of December 3, 2007 and no contraband was



                                             10
discovered; thereafter, he had no opportunity to hide the SIM card. But, under Hill,

neither we nor the District Court are required to re-weigh the evidence, or re-assess the

credibility of Donahue’s defense. 472 U.S. at 455-56. All that is required for the District

Court to uphold the DHO is evidence in the record to support the conclusion. See id.

(“The fundamental fairness guaranteed by the Due Process Clause does not require courts

to set aside decisions of prison administrators that have some basis in fact.”). That record

evidence plainly exists in Donahue’s case in that the SIM card was found taped to the

back of his bottom clothing drawer. In view of Donahue’s unsupported defense that he

had been “set up,” the discovery of the SIM card is plainly “some evidence” supporting

the determination that he possessed a hazardous tool. Id. at 455.

       Further, Donahue’s “constructive possession” argument – that he shared a cell with

three other inmates and any of the numerous inmates assigned to his dorm could have had

access to his area – has little or no force in view of the fact that the SIM card was taped to

the back of his clothes drawer. Again, Donahue did not dispute the reasonableness of the

requirement that inmates keep their assigned area free of contraband, and this is not a case

where the contraband was found concealed within a structure that was not assigned to any

particular inmate. See, e.g., Hamilton v. O’Leary, 976 F.2d 341, 343 (7th Cir. 1992)

(addressing weapons found in vent which ran vertical length of eight cells).

       For the foregoing reasons we will affirm the order of the District Court denying the

habeas corpus petition.



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