                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-23-2007

Santiago v. Nash
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4396




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Recommended Citation
"Santiago v. Nash" (2007). 2007 Decisions. Paper 1428.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1428


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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 06-4396
                                   ________________

                                   NERY SANTIAGO,

                                             Appellant

                                              v.

                                JOHN NASH, Warden
                       ____________________________________

                     On Appeal From the United States District Court
                               For the District of New Jersey
                                (D.C. Civ. No. 05-cv-04552)
                      District Judge: Honorable Jerome B. Simandle
                     _______________________________________

                     Submitted Under Third Circuit LAR 34.1(a)
                                 March 22, 2007
           Before: SLOVITER, MCKEE AND AMBRO, CIRCUIT JUDGES

                                 (Filed March 23, 2007)

                               _______________________

                                      OPINION
                               _______________________

PER CURIAM

       Nery Santiago, a federal prisoner, appeals from an order of the United States

District Court for the District of New Jersey denying his habeas corpus petition, filed

pursuant to 28 U.S.C. § 2241, in which he challenged a prison disciplinary proceeding
and requested expungement of a disciplinary finding on due process grounds. For the

reasons that follow, we will affirm the District Court’s judgment.

       This case arises from the result of a routine search of Santiago’s prison bunk at the

Federal Correctional Institution at Fort Dix, New Jersey. During this search, conducted

on December 22, 2004, a correctional officer was injured by a tattoo gun needle

surreptitiously taped to the frame of Santiago’s bunk. Santiago was charged with

possession of a hazardous tool (Code 108A) and conduct which disrupts the orderly

running of the institution (Code 299), both violations of the Bureau of Prison’s (“BOP”)

disciplinary code.

       On December 22, 2004, Santiago was provided a copy of an incident report

describing the charges against him. Santiago was then given a timely hearing before the

Unit Discipline Committee (“UDC”) where he denied the charges. Citing the seriousness

of the charges, the UDC referred the case to a Disciplinary Hearing Officer (“DHO”). At

the initial DHO hearing, on January 3, 2005, Santiago claimed he had never received a

copy of the incident report. A rescheduled hearing was held on January 6, 2005. Prior to

that hearing, Santiago was informed of his rights and a staff representative was appointed

for him. Santiago requested no witnesses at the hearing and again reiterated his

innocence. The DHO reviewed the incident report, Santiago’s statement, three

photographs showing the needle, and a medical report describing the injury to the officer

who discovered the needle. The DHO determined that the weight of that evidence



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supported a finding that Santiago’s actions were consistent with a violation of the BOP

Code. For the Code 108A violation, Santiago received 60 days in disciplinary

segregation, 40 days disallowance of good-conduct time, and 108 days forfeiture of non-

vested good-conduct time. On the Code 299 violation, the DHO imposed 30 days in

disciplinary segregation, 27 days disallowance of good-conduct time, and 54 days

forfeiture of non-vested good-conduct time.

       After exhausting his administrative remedies, Santiago filed the instant § 2241

petition claiming that the DHO’s finding of guilt was not supported by sufficient evidence

and that he was denied due process. In support of these claims, Santiago argued that the

BOP failed to conduct an adequate investigation into whether he was responsible for the

needle and that certain witnesses and testimony were not made available to him during his

hearing. In an order entered on September 20, 2006, the District Court denied Santiago’s

habeas petition, holding that Santiago received procedural due process, in accordance

with Wolff v. McDonnell, 418 U.S. 539 (1974).1 The Court specifically noted that the

DHO’s disciplinary finding was supported by sufficient evidence, and that the sanctions

imposed were within the permissible range for Santiago’s offenses. Santiago filed a



       1
         At a prison disciplinary hearing, due process requires that the inmate: (i) appear
before an impartial decision-making body; (ii) be given at least 24 hours’ written notice
of the charges; (iii) be afforded an opportunity to call witnesses and present documentary
evidence; (iv) be permitted assistance from an inmate representative; and (v) receive a
written decision explaining the decision-maker’s conclusions. See Wolff, 418 U.S. at
563-71. Further, the decision-maker’s conclusion must be supported by at least “some
evidence.” Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454-56 (1985).

                                            -3-
timely appeal.2

       To the extent that Santiago argues that the DHO’s finding of guilt was false

because there was no evidence to support it, we disagree. In order to comport with due

process, a disciplinary decision must have support, but only by “some evidence” in the

record. Hill, 472 U.S. at 454-56. The Hill standard is minimal and does not require

examination of the entire record, an independent assessment of the credibility of

witnesses, or even a weighing of the evidence. See Thompson v. Owens, 889 F.2d 500,

502 (3d Cir. 1989). We agree with the District Court that some evidence existed to

support the DHO’s conclusions. Id. at 564-65; see also Hill, 472 U.S. at 455-56.

Although Santiago argues that he had no knowledge of the needle’s presence, it was

found within an area that Santiago was responsible for keeping contraband-free. Further,

in the absence of direct evidence indicating an inmate’s guilt of possession, the “some

evidence” standard may be satisfied by application of the constructive possession doctrine

in limited circumstances where a small number of inmates are potentially guilty of the

offense charged. See White v. Kane, 860 F. Supp. 1075, 1079 n.5 (E.D. Pa. 1994), aff’d,

52 F.3d 319 (3d Cir. 1995). During the disciplinary proceeding, Santiago also received




       2
         We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). In reviewing a
federal habeas judgment, we exercise plenary review over a district court’s legal
conclusions and apply a clearly erroneous standard to its findings of fact. See Rios v.
Wiley, 201 F.3d 257, 262 (3d Cir. 2000). Although the issues in Santiago’s appeal
contain some elements of a factual nature, the inquiry is legal in nature, and we therefore
exercise plenary review over the District Court’s conclusions regarding this matter. Id.

                                            -4-
the process due him in accordance with established Supreme Court precedent. See Wolff,

418 U.S. at 563-71. Finally, even if we were to assume that a due process right to

expungement exists, the District Court properly denied Santiago’s request because he

failed to establish that the information he sought to have expunged was faulty. Cf. Paine

v. Baker, 595 F.2d 197 (4th Cir. 1979).

       The remainder of Santiago’s claims can be disposed of with little discussion. We

have reviewed these remaining arguments and find that they are either meritless or

precluded from review. To the extent that Santiago failed to raise these allegations at any

point during his prison disciplinary proceedings, or in his § 2241 petition, we will not

consider them for the first time on appeal. See Morris v. Hoffa, 361 F.3d 177, 191 (3d

Cir. 2004) (“[A]bsent compelling circumstances an appellate court will not consider

issues that are raised for the first time on appeal.”)

       For the foregoing reasons, we will affirm the judgment of the District Court

denying Santiago’s habeas petition.




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