                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 13-3173
                                     ____________

                            JOSE CRISTOBAL CARDONA,

                                                        Appellant

                                            v.

                              WARDEN LEWISBURG
                        __________________________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                              (D.C. Civ. No. 12-cv-00753)
                     District Judge: Honorable Robert D. Mariani
                      __________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   January 3, 2014

      Before: FUENTES, GREENBERG and VAN ANTWERPEN, Circuit Judges

                            (Opinion filed: January 14, 2014)
                                    ____________

                                       OPINION
                                     ____________


PER CURIAM

       Appellant Jose Cardona appeals from an order of the District Court denying his

habeas corpus petition. For the reasons that follow, we will affirm.



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       Cardona, a federal prisoner, committed a misconduct at his institution and was

adjudicated guilty following a disciplinary hearing. A sanction was imposed on him that

included the loss of 27 days of good conduct time. Cardona filed a petition for writ of

habeas corpus, 28 U.S.C. § 2241, in the United States District Court for the Middle

District of Pennsylvania, seeking restoration of his good conduct time. Cardona

challenged the procedures used to adjudicate him guilty, and he challenged the result

itself as lacking in evidentiary support. In particular, Cardona challenged the impartiality

of those who brought and adjudicated the charges. He argued that his staff representative

failed to meet with him, and that the hearing officer was not impartial. In addition to

including the Disciplinary Hearing Report as an exhibit to his petition, Cardona attached

two incident reports to his petition, Exhibits 4 and 5.

       In Exhibit 4 to the petition, an incident report on misconduct # 2180381 that was

purportedly prepared on June 30, 2011, Correctional Officer Donald Johnson charged

Cardona with refusing programs and refusing an order, in violation of Codes 306 and

307. In his description of the incident, Officer Johnson stated that he was helping to

escort an inmate to cell 319. Cardona was ordered to “cuff up” and he refused, stating,

“I’m not going to cuff up, and I’m not talking about it.” In Exhibit 5, an incident report

on misconduct # 2180781 purportedly prepared and delivered on July 1, 2011 but

describing an incident that occurred on June 30, 2011, Officer Johnson charged Cardona

with threatening, in violation of Code 203. In his description of the incident, Officer

Johnson stated that, when he tried to cuff Cardona, in order to place an inmate into his

cell, Cardona said, “If you put him in here I will fuck him up.” Johnson stated that he

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again ordered Cardona to cuff up, and Cardona replied, “I will fuck him up and the team.

I’m done talking.”

       The Bureau of Prisons answered the petition, calling the District Court’s attention

to the incident report on misconduct # 2180781 only, wherein Officer Johnson charged

Cardona with threatening, in violation of Code 203; the thorough and well-reasoned

Disciplinary Hearing Report; and the legal standards applicable to Cardona’s petition.

Cardona then submitted a reply brief, in which he complained that the administrative

record submitted to the court by the BOP was incomplete, see Reply Brief, at 1-2, and

that the incident report on misconduct # 2180781, wherein Officer Johnson charged him

with threatening, was fabricated. Cardona argued that the description of the June 30,

2011 incident contained in Exhibit 4 was accurate, in that he merely refused an order to

cuff up and double cell and did not threaten anyone. Cardona argued that the inconsistent

descriptions of the incident contained in his Exhibits 4 and 5 were persuasive evidence

that the threat charge was fabricated by prison officials. See id. at 2, 7. In addition, he

emphasized that Officer Weaver gave a statement that he did not hear Cardona threaten

anyone, see id. at 3, and he argued that the hearing officer “went out of his way to locate

a surprise witness Officer B. Zimmerman to introduce false testimony,” id. at 8.

       The Magistrate Judge recommended denying the habeas corpus petition,

concluding that the procedures set forth in the applicable federal regulations meet the

requirements for procedural due process in prison disciplinary proceedings set forth by

the United States Supreme Court in Wolff v. McDonnell, 418 U.S. 539, 556 (1974).

Moreover, Cardona unquestionably received all of his procedural due process rights. His

                                              3
criticism that prison staff were not impartial was not supported by any evidence and was

insufficient to show a violation of due process. With respect to Cardona’s challenge to

the substance of the hearing officer’s decision, the Magistrate Judge concluded that there

was “some evidence” in the record, see Superintendent v. Hill, 472 U.S. 445, 454-56

(1985), to support the conclusion that Cardona uttered a threat, citing the statements of

the reporting officer, Officer Johnson, and another eyewitness, Officer Zimmerman. The

Magistrate Judge did not specifically address Cardona’s arguments concerning an

incomplete administrative record and his Exhibit 4. Cardona then submitted Objections.

In an order entered on June 27, 2013, the District Court overruled Cardona’s objections,

adopted the Magistrate Judge’s Report and Recommendation, and denied the habeas

corpus petition.

       Cardona appeals. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a).

Cardona contends in his Informal Brief that the evidence that he uttered a threat was

insufficient, that the procedures used to obtain the adjudication of guilt were flawed, that

the administrative record was incomplete, that documents were falsified, and he also

referred us to his Objection Nos. 2 and 3. In Objection No. 2, Cardona argued that his

Exhibit 4 was proof that he did not utter a threat and that the incident report concerning

misconduct # 2080781 was fabricated; and in Objection No. 3, he argued that the hearing

officer was lying about Officer Zimmerman’s corroborating statement.

       We will affirm. A claim of loss of good conduct time sounds in habeas corpus

because the loss would affect the duration of the inmate’s sentence, Woodall v. Federal

Bureau of Prisons, 432 F.3d 235, 241 (3d Cir. 2005). Accordingly, the District Court had

                                             4
jurisdiction to address Cardona’s petition. 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, through the Declaration

of L. Cunningham, stated that Cardona had exhausted his available administrative

remedies.

       According to the incident report on misconduct # 2180781 that was submitted as

part of the administrative record, Cardona was charged by Officer Johnson with

threatening, in violation of Code 203. In his description of the incident, Officer Johnson

stated that, when he tried to cuff Cardona, in order to place an inmate into his cell,

Cardona said, “If you put him in here I will fuck him up.” The incident occurred on June

30, 2011. The item submitted by the BOP thus corresponds to Cardona’s Exhibit 5. This

incident report goes on to reveal that, on July 1, 2011, an investigating lieutenant met

with Cardona and provided him with a copy of the incident report which charged him

with threatening. After documenting Cardona’s denial of the charge, the lieutenant

referred the matter to the Unit Disciplinary Committee (“UDC”) for an initial hearing.

       The administrative record submitted by the BOP further shows that, at the UDC

proceeding, Cardona was provided with a Notice of Discipline Hearing and Inmate

Rights at Discipline Hearing form, and that the charge of threatening was referred to the

hearing officer for a final hearing. The Notice of Discipline Hearing reflects that

Cardona asked for a staff representative, and asked for two witnesses, Officers

Zimmerman and Weaver. These officers eventually gave written statements.



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       Cardona’s disciplinary hearing was conducted on August 15, 2011. The hearing

report shows that the hearing officer advised Cardona of his rights in connection with the

proceeding and that Cardona indicated that he understood these rights. The report states

that Cardona presented no documents at the hearing, and that he had asked his staff

representative to obtain statements from Officers Weaver and Zimmerman, and also his

former cellmate (who, as it turned out, had no relevant information to offer). The report

states that Cardona made a statement on his own behalf. He stated that he refused on

June 30, 2011 to cell with another inmate and to “cuff up,” but he did not threaten

anyone. He accused prison officials of fabricating the charge in retaliation for one of his

lawsuits against them. The hearing officer then reviewed with Cardona the statements of

his two witnesses, including Officer Zimmerman’s statement that he heard Cardona utter

the threat and Officer Weaver’s statement that he did not hear Cardona utter the threat.

In response to hearing that his own witness (Officer Zimmerman) did not support his

version of the events, Cardona argued that Officer Zimmerman and Officer Weaver left

the scene at the same time; if Officer Weaver did not hear the threat, then Officer

Zimmerman necessarily was lying about hearing a threat. The hearing officer then

reminded Cardona that both Officers Weaver and Zimmerman stated that Officer

Zimmerman remained in front of Cardona’s cell door with the reporting officer, Officer

Johnson, after Officer Weaver departed the area. Therefore, he could have heard

something that Officer Weaver did not hear. According to the hearing report, Cardona

then admitted that Officer Zimmerman remained at his cell door with Officer Johnson



                                             6
throughout the entire incident. Cardona would not give in, however, and argued instead

that no one could have heard him threaten anyone because the range fans are so noisy.

       Upon consideration of all of the evidence, the hearing officer determined that

Cardona had committed the prohibited act of threatening another. In reaching this

decision, the hearing officer documented the specific evidence he relied upon, explaining

that his decision was based on witness statements, including the statement of Officer

Zimmerman who confirmed Officer Johnson’s contention in the incident report relating

to misconduct # 2180781 that Cardona uttered a threat. The hearing officer discounted

Cardona’s claim of fabrication, and found that there was no material inconsistency

between the statements of Officers Johnson and Zimmerman, on the one hand, who heard

Cardona utter a threat, and Officer Weaver, on the other hand, who did not hear a threat,

because Officer Weaver had departed the scene early on. The hearing officer discounted

Cardona’s denial of the threat charge on the basis that it was not credible, noting that

Cardona had given inconsistent and contradictory testimony at his hearing regarding how

long Officer Zimmerman remained in front of his cell.

       We have carefully reviewed all of the exhibits submitted by the BOP and Cardona,

and conclude that there is no plausible argument to be made that Cardona’s procedural

due process rights were violated in any way. For the reasons given by the Magistrate

Judge, Cardona received all of the process due him under the regulations, 28 C.F.R. §§

541.5-541.8, and Wolff, 418 U.S. 539.1 The administrative record establishes that


1
 Wolff requires 24-hour advance written notice of the disciplinary charges, the
opportunity when consistent with institutional and correctional goals to call witnesses and
                                              7
Cardona made full and complete use of his procedural due process rights. As explained

by the Magistrate Judge, due process also requires that a prison disciplinary tribunal be

sufficiently impartial, Meyers v Aldredge, 492 F.2d 296, 305-07 (3d Cir. 1974), but no

due process violation was made out here because Cardona’s contentions that his staff

representative did not assist him and acted in bad faith, and that the hearing officer lied

about the evidence and was not impartial, had no evidentiary support.

       Turning to the adjudication of guilt itself, we note that a prison disciplinary

determination comports with due process if it is based on “some evidence” in the record.

Hill, 472 U.S. at 454-56. This standard is minimal. It does not require a reviewing court

to exam the entire record, independently assess the credibility of witnesses, or even

weigh the evidence. See id. at 455; Thompson v. Owens, 889 F.2d 500, 501-02 (3d Cir.

1989). Once the reviewing court determines that there is some evidence in the record to

support the finding of the hearing officer, an inmate’s challenge to the weighing of the

evidence must be rejected. Cf. at 502 (“Positive urinalysis results based on samples that

officials claim to be appellant’s constitute some evidence of appellant’s drug use. A

chain of custody requirement would be nothing more or less than an ‘independent

assessment’ into the reliability of the evidence, and Hill tells us, explicitly, that such a

‘credibility’ determination is not required.”). In Cardona’s case, two eyewitnesses,

Officers Johnson and Zimmerman, stated that they heard him utter a threat. That

evidence satisfies Hill, particularly in view of the fact that Officer Zimmerman was

present documentary evidence, assistance in complex cases, and a written statement from
the factfinder as to the evidence relied on and the reasons for the disciplinary action. See
id. at 563-67.
                                               8
Cardona’s own witness, and Cardona admitted at his hearing that Officer Zimmerman

remained at his cell door with Officer Johnson throughout the entire incident.

       We do not think that Cardona’s Exhibit 4 is the “smoking gun” he thinks it is. We

doubt seriously that any claim related to Exhibit 4 is exhausted, because the

administrative record gives no indication that Cardona tried to introduce this exhibit at

his disciplinary hearing, or argue that Officer Johnson gave a prior inconsistent statement

regarding the events of June 30, 2011 as reflected in Exhibit 4. Federal prisoners are

required to exhaust their administrative remedies completely prior to filing a petition for a

writ of habeas corpus. Moscato v. Federal Bureau of Prisons, 98 F.3d 757 (3d Cir.1996).

Moreover, Cardona made no effort to establish the authenticity of his Exhibit 4, which

contains a different misconduct number than the one at issue in this case; and he

originally claimed that “Lt. R. Miller” and not Officer Johnson was responsible for

charging him with the misconduct at issue in Exhibit 4, see Petition, at 5-6, and offered

no explanation for having done so. In any event, Hill prevents us from independently

assessing Officer Johnson’s credibility. 472 U.S. at 455.

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

Cardona’s habeas corpus petition.




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