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


8-23-2007

Antonakeas v. Sherman
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-5003




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Recommended Citation
"Antonakeas v. Sherman" (2007). 2007 Decisions. Paper 547.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/547


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 CLD-302                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 06-5003
                                   ________________

                        PANTELIS ANTONAKEAS, Appellant

                                            v.

                           JAMES SHERMAN, WARDEN
                      ____________________________________

                    On Appeal From the United States District Court
                        For the Western District of Pennsylvania
                               (D.C. Civ. No. 05-cv-00305)
                     District Judge: Honorable Sean J. McLaughlin
                    _______________________________________

 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                  July 12, 2007

           Before: RENDELL, SMITH AND JORDAN, CIRCUIT JUDGES

                               (Filed: August 23, 2007)
                              _______________________

                                      OPINION
                              _______________________

PER CURIAM

             Pantelis Antonakeas, a federal prisoner, appeals from an order of the United

States District Court for the Western District of Pennsylvania denying his habeas corpus

petition, filed pursuant to 28 U.S.C. § 2241. Because we conclude that Antonakeas’

appeal presents no substantial question, we will summarily affirm the District Court’s

order.
              In his habeas petition, Antonakeas alleged that he was denied due process

during prison disciplinary proceedings. In November 2004, prison staff conducted a

search of Antonakeas’ property. A cellular telephone was discovered. Antonakeas was

charged with the use of a telephone for abuse other than criminal activity (Code 297) and

possession of anything unauthorized (Code 305), both violations of the Bureau of

Prison’s (“BOP”) disciplinary code. In January 2005, a disciplinary hearing was

conducted. Ultimately, the Discipline Hearing Officer (“DHO”) found Antonakeas

committed the acts as charged. The DHO sanctioned Antonakeas with the loss of forty

days good conduct time (“GCT”) in addition to other sanctions.

              Antonakeas unsuccessfully appealed the DHO’s decision to the Regional

Director and to the Bureau of Prisons.1 In October 2005, Antonakeas filed this habeas

petition pursuant to § 2241. In the petition, Antonakeas claimed that the guilty finding

was not based on the greater weight of the evidence (“Claim I”). He requested that

incident report along with the sanctions be expunged. Antonakeas also asserted that the

DHO was biased during the hearing (“Claim II”). Antonakeas claimed that the DHO had

already made up his mind regarding Antonakeas’ guilt before the hearing began. In his

answer, the Defendant asserted that Claim 1 should be denied on the merits and that

Claim II is unexhausted and procedurally defaulted.



  1
   The Regional Director noted that Antonakeas’ behavior “was more accurately
summarized as Codes 297 (Attempted) and 305.” However, Antonakeas’ sanctions
remained intact on appeal.

                                             2
              The Magistrate Judge recommended denying the habeas petition. The

Magistrate Judge determined that the DHO had “some evidence” to find Antonakeas

guilty of the charged offenses. Furthermore, the Magistrate Judge determined that Claim

II is unexhausted and procedurally defaulted. The District Court adopted the report and

recommendation. Antonakeas timely filed a notice of appeal. The Appellee filed a

motion for summary action.

              We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). We

exercise plenary review over the District Court’s legal conclusions and apply a clearly

erroneous standard to its findings of fact. See Ruggiano v. Reish, 307 F.3d 121, 126 (3d

Cir. 2002).

              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 v.

McDonnell, 418 U.S. 539, 563-71 (1974). In order to comport with due process, a

disciplinary decision must have some support, but only by “some evidence” in the record.

See Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454-56 (1985). 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, 501-02 (3d Cir. 1989).

                                              3
              With respect to Claim I, we agree with the Magistrate Judge that this claim

was exhausted and that “some evidence” exists to support the DHO’s conclusions. As

noted by the Magistrate Judge, the cellular phone was found within Antonakeas’ property

in a cooler which had his nickname and prison number on it.

              With respect to Claim II, we note that “[f]ederal prisoners are ordinarily

required to exhaust their administrative remedies before petitioning for a writ of habeas

corpus pursuant to § 2241.” See Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 760 (3d

Cir. 1996)(citations omitted). Where a federal prisoner fails to exhaust his administrative

remedies and procedural default renders the administrative process unavailable, “review

of his habeas claim is barred unless he can demonstrate cause and prejudice.” Id. at 761.

In his administrative appeal, Antonakeas failed to allege that he was denied due process

because the DHO was biased. He does not demonstrate cause and prejudice for his

failure to raise this claim in his administrative appeal. Therefore, Claim II is unexhausted

and procedurally defaulted.

              For the foregoing reasons, Appellee’s motion is granted as we will

summarily affirm the District Court judgment denying Antonakeas’ habeas petition. All

other pending motions are denied.

                                             4
