                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                 Nos. 16-3788 & 17-1562
                                      ___________

                                   EDWIN JACQUET,
                                               Appellant

                                             v.

                              WARDEN FORT DIX FCI
                       ____________________________________

                     On Appeal from the United States District Court
                               for the District of New Jersey
                             (D.N.J. Civ. No. 1-16-cv-04368)
                     District Judge: Honorable Jerome B. Simandle
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   August 17, 2017

              Before: AMBRO, KRAUSE and NYGAARD, Circuit Judges

                            (Opinion Filed: August 29, 2017)
                                     ___________

                                        OPINION*
                                       ___________

PER CURIAM

       Pro se appellant Edwin Jacquet appeals the District Court’s orders denying his

petition under 28 U.S.C. § 2241 and denying his motion under Fed. R. Civ. P. 59(e). We


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
will affirm in part, vacate in part, and remand for further proceedings (including an

evidentiary hearing).

       Jacquet is a federal prisoner. In 2012, he pleaded guilty in the Southern District of

New York to conspiracy to commit bank fraud and was sentenced to 63 months’

imprisonment. He earned a 12-month sentence reduction for participating in the

Residential Drug Abuse Program and approximately 172 days of good-time credit. After

serving 32 months, he was transferred to a halfway house to complete his sentence.

       Jacquet claims that, while in the halfway house, his mother and sister visited him,

bringing a box of Nature Valley Lemon Poppy Seed Breakfast Biscuits. Jacquet says that

he ate six of these biscuits before realizing that they contained poppy seeds. Jacquet

feared that eating these poppy seeds could trigger a positive urinalysis result on one of

the random drug tests to which he was subjected. He thus informed Rohan, a staff

member at his halfway house, that he had eaten the biscuits; Rohan assured him that it

would not be a problem. Nevertheless, at 10:30 that night, LabCorp conducted a

urinalysis drug test. Jacquet tested positive for codeine and morphine.

       On the day that it received the result of this test (October 13, 2015), the halfway

house issued an incident report charging Jacquet with using narcotics. That day, Jacquet

met with a staff member. Jacquet denied the charge, blamed it on the poppy seeds, asked

for a retest or a hair test, and requested that Rohan be interviewed. On October 14, 2015,

the Center Discipline Committee held a hearing on the charge. The parties dispute

whether Jacquet was physically present at this hearing. Relying on the results of the


                                             2
urinalysis test, the Committee found Jacquet guilty of the offense. The Committee

recommended that Jacquet be returned to a more-secure facility and that he be stripped of

his good-time credit; the next day (October 15, 2015), he was transferred to a detention

center. Also on October 15, 2015, the Bureau of Prisons (BOP) revoked Jacquet’s 12-

month sentence credit. On November 4, 2015, a hearing officer sanctioned Jacquet to the

loss of 85 days of good time.

       After making protracted but unsuccessful efforts to challenge the BOP’s decisions

and to obtain hair-follicle testing, Jacquet, through counsel, filed a § 2241 petition.1 In

his petition, he provided a wealth of citations in support of his contention that the

consumption of poppy seeds can cause positive urinalysis results for codeine and

morphine and that a hair test would eliminate this type of “false positive.” He alleged

that his due process rights had been violated in a variety of ways. The District Court

denied each of his claims, and Jacquet filed a timely notice of appeal. That appeal has

been docketed at C.A. No. 16-3788. Jacquet also filed a Rule 59(e) motion, which the

District Court denied. Jacquet appealed that order; this appeal has been docketed at C.A.

No. 17-1562. The Clerk consolidated these two appeals.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Jacquet’s due-process

challenge to the disciplinary hearing was properly brought under § 2241 because it

entailed the loss of good-time credits. See Queen v. Miner, 530 F.3d 253, 254 n.2 (3d

Cir. 2008) (per curiam). We review the District Court’s denial of habeas relief de novo

1
 The Government waived any exhaustion defense. See Gov’t Resp. to § 2241 Petition at
pg. 5 n.5.
                                       3
and its factual findings for clear error. Denny v. Schultz, 708 F.3d 140, 143 (3d Cir.

2013). We review the District Court’s denial of a Rule 59(e) motion for abuse of

discretion. See Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669,

673 (3d Cir. 1999).

       While Jacquet raised numerous claims before the District Court, he has presented

only three in his opening brief, and we thus limit ourselves to reviewing those three

claims. See, e.g., United States v. Jackson, 849 F.3d 540, 555 n.13 (3d Cir. 2017). Of

these three arguments, Jacquet focuses primarily on his contention that the Community

Based Program Agreement — which set forth the terms and conditions of his pre-release

transfer to the halfway house — is an unenforceable contract of adhesion. However, he

presented this argument for the first time in his Rule 59(e) motion. The District Court

denied the claim on the ground that Rule 59(e) motions are appropriate only to rectify

plain errors of law or to offer newly discovered evidence, and may not be used to assert

new arguments that could have been raised earlier. The District Court did not err in so

holding. See Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008); Max’s

Seafood Café, 176 F.3d at 677.2

       Next, Jacquet argues that he was excluded from the disciplinary hearing in

derogation of his due process rights. The District Court rejected this claim, concluding

2
 Jacquet blames his attorney for failing to press this claim earlier, but “[t]he remedy in a
civil case, in which chosen counsel is negligent, is an action for malpractice,” not an
appeal. Kushner v. Winterthur Swiss Ins. Co., 620 F.2d 404, 408 (3d Cir. 1980) (internal
quotation marks omitted); see also Nelson v. Boeing Co., 446 F.3d 1118, 1119 (10th Cir.
2006) (“The general rule in civil cases is that the ineffective assistance of counsel is not a
basis for appeal or retrial.”).
                                              4
both that Jacquet had been physically present and that, in any case, he had not been

prejudiced. We conclude that the District Court should not have disposed of this claim

without holding an evidentiary hearing.

       Turning first to the factual question of whether Jacquet was excluded from this

hearing, as the District Court explained, the Government offered some evidence that

Jacquet had been present — he placed his initials on a report from the hearing next to

statements setting forth the time and date of the hearing and that he had been advised of

various rights, and, while he filed a variety of administrative grievances and appeals, he

never previously alleged that he had been excluded. However, Jacquet also squarely

asserted, in both his verified § 2241 petition and his reply brief, that he had not been

present. We conclude that, in these circumstances, the Government’s evidence was not

so strong as to permit the District Court to reject Jacquet’s allegations and resolve the

factual dispute without first holding an evidentiary hearing. See generally Zettlemoyer v.

Fulcomer, 923 F.2d 284, 301 (3d Cir. 1991) (“A district court must hold a hearing if the

petitioner has alleged facts that, if proved, would entitle him or her to relief and an

evidentiary hearing is necessary to establish the truth of those allegations.”).

       The District Court also ruled that, even if Jacquet had been excluded, he was not

prejudiced because the BOP was already familiar with his consumption-of-poppy-seeds

defense. However, this analysis undervalues the importance of Jacquet’s presence at the

hearing. His entire defense depended on the BOP’s finding credible his explanation that

his positive urinalysis test was caused by his consumption of poppy seeds; given the


                                              5
importance of his credibility, a written or second-hand statement would be a poor

substitute for in-person testimony. See Goldberg v. Kelly, 397 U.S. 254, 269 (1970)

(stating, in a benefits-termination case, that “where credibility and veracity are at

issue . . . written submissions are a wholly unsatisfactory basis for decision”); Wheeler v.

Sims, 951 F.2d 796, 801 (7th Cir. 1992) (stating that oral testimony is superior to written

statements in prison-disciplinary proceedings “for the vast majority of prisoners are not

well educated and thus are better able to express themselves orally than in writing”).

Moreover, being excluded from the hearing would have prevented Jacquet from

monitoring the Government’s presentation of evidence and otherwise administering his

defense. Thus, we conclude that the District Court also erred in denying this claim for

lack of prejudice. We will therefore vacate the District Court’s judgment as to this claim

and remand for an evidentiary hearing to resolve the factual dispute concerning whether

Jacquet was physically present at the hearing.

       Jacquet’s final argument is that the BOP violated his due process rights by

denying his request to obtain hair-testing evidence at his own expense. The Supreme

Court has held that an inmate facing the loss of good-time credits has a due process right

to “present documentary evidence in his defense when permitting him to do so will not be

unduly hazardous to institutional safety or correctional goals.” Wolff v. McDonnell, 418

U.S. 539, 566 (1974); see also Young v. Kann, 926 F.2d 1396, 1399 (3d Cir. 1991).

“Although prison officials are afforded deference regarding whether evidence might be

unduly hazardous or undermine institutional safety or correctional goals, ‘the discretion


                                              6
afforded prison officials is not without limits.’” Burns v. Pa. Dep’t of Corr., 642 F.3d

163, 173 (3d Cir. 2011) (quoting Young, 926 F.2d at 1400). Thus, we typically require

prison officials to “determine whether there are legitimate penological reasons to deny

the prisoner access to the evidence requested.” Id. at 174. Here, the Government has

presented no evidence whatsoever detailing its rationale for preventing Jacquet from

obtaining hair-testing evidence. We will therefore vacate the District Court’s order as to

this claim and remand the matter to the District Court for it to determine whether the

BOP had a legitimate basis to deny Jacquet access to this secondary testing.

       Accordingly, we will vacate the District Court’s judgment as to Jacquet’s claims

that the BOP violated his due process rights by (a) excluding him from the hearing and

(b) denying hair testing, and will remand for further proceedings as to these claims. On

remand, the District Court should conduct an evidentiary hearing as to claim (a). In all

other respects, we will affirm the District Court’s judgment.




                                             7
