GONZALEZ v. MARSHALL et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ERIC YANCY GONZALEZ, 	:
Petitioner 	:
v. 	: Case No. 3:25-cv-190-SLH-KAP
MICHAEL UNDERWOOD, WARDEN, 	:
F.C.I LORETTO, et al., 	:
Respondents
Report and Recommendation
Recommendation
Petitioner, currently an inmate at F.C.I. Loretto, filed a petition at ECF no. 3 for a
writ of habeas corpus pursuant to 28 U.S.C.§ 2241, attacking the forfeiture of 41 days good
conduct time (GCT), see 18 U.S.C.§ 3624, ordered as a result of disciplinary proceedings
at F.C.I. Coleman, where petitioner was confined between June 2023 and November
2024. For the reasons below, I recommend that the Court deny the petition.
Report
As the Court is aware, this is the second of three unrelated habeas petitions by
Gonzalez, see also Gonzalez v. Underwood, Case No. 3:24-cv-307-SLH-KAP (W.D. Pa.),
report and recommendation pending; Gonzalez v. Underwood, Case No. 3:25-cv-223-
SLH-KAP (W.D. Pa.), after Gonzalez changed his plea to guilty in the Southern District of
Florida to Count five of the indictment in United States v. Gonzalez, Case No. 1:22-cr-
20067-KMM (S.D.Fla. October 27, 2022), appeal dismissed for lack of prosecution, No.
22-13802-DD (11 th Cir. April 3, 2023). The Honorable K. Michael Moore sentenced
Gonzalez to 60 months imprisonment followed by a 5-year term of supervised release.
The offense of conviction was possession of a firearm in furtherance of a drug trafficking
offense in violation of 18 U.S.C.§ 924(c)(1)(A)(i). With credit for time served and
assuming no loss of Good Conduct time, the Bureau of Prisons projects Gonzalez’s release
date as March 1, 2027. Response, Exhibit 1 (Jensen Declaration), Attachment 1.
Gonzalez asserts in this habeas corpus petition that the Bureau of Prisons illegally
forfeited 41 days GCT as a result of a disciplinary proceeding in which petitioner was
charged with possession of a hazardous tool, namely a cell phone, in violation of
disciplinary Code 108, see 28 C.F.R.§ 541.3, table 1.
According to the Bureau of Prisons, on the evening of June 29, 2023, a corrections
officer on routine rounds at F.C.I. Coleman encountered Gonzalez with a cell phone in his
hand. She ordered Gonzalez to turn it over and he complied. He was escorted to the
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lieutenant’s station without incident and was given an incident report the next day. When
an investigator read him the report Gonzalez allegedly made an inculpatory statement by
commenting that the phone was not his and that he rented it. After proceedings before
the Unit Disciplinary Committee on July 5, 2023 the matter was referred to a Disciplinary
Hearing Officer because of the potential imposition of greater sanctions.
After a July 7, 2023 hearing, the DHO found petitioner guilty and imposed
sanctions. Here, I consider only the challenges to the loss of 41 days GCT imposed as a
sanction: the other lesser sanctions (disciplinary custody, and loss of phone and visiting
privileges) expired before petitioner filed his petition.
After Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974), a prison disciplinary
hearing that results in the loss of GCT or otherwise extends the time spent in custody must
provide at least these procedural safeguards: an impartial decision-making body; at least
twenty-four hours of advance written notice of the charges; an opportunity to call
witnesses and present documentary evidence; assistance from an inmate representative
if the charge involves complex issues or if the prisoner is illiterate; and a written decision
explaining the evidence relied upon and the reasons for the disciplinary action. See
Campbell v. Warden Allenwood USP, 808 Fed.Appx. 70, 72 (3d Cir. 2020).
The substantive requirement applicable to disciplinary proceedings that result in
loss of GCT or otherwise will affect the length of a sentence is that there be “some
evidence” to support them. Superintendent v. Hill, 472 U.S. 445, 455, (1985); Young v.
Kann, 926 F.2d 1396, 1402-03 (3d Cir.1991). Habeas review for that quantum of evidence
“does not require examination of the entire record, independent assessment of the
credibility of witnesses, or weighing of the evidence. Instead, the relevant question is
whether there is any evidence in the record that could support the conclusion reached by
the disciplinary board.” Superintendent v. Hill, 472 U.S. at 455. This is codified in the
Bureau of Prisons’ regulations at 28 C.F.R.§ 541.8(f)(2017), requiring that “[t]he DHO's
decision will be based on at least some facts and, if there is conflicting evidence, on the
greater weight of the evidence.” 	See Bureau of Prisons Program Statement 5270.09,
Inmate Discipline Program, August 1, 2011, implementing 28 C.F.R.§ 541.1-8 (text
available at https://www.bop.gov/policy/progstat/5270_009.pdf).
Gonzalez challenges two aspects of the procedure used. First, in his petition and in
his affidavit submitted with the petition Gonzalez claims that he asked the DHO to review
surveillance footage of the encounter with the corrections officer but that was refused. In
light of the DHO’s report that Gonzalez admitted possession, there would be no point to
reviewing video evidence. The DHO’s alleged procedural violation therefore stands or falls
with the validity of Gonzalez’ argument, discussed in the next paragraph, that this court
can reweigh the evidence of Gonzalez’ admission considered by the DHO. 	Gonzalez
further alleges that he “was not allowed to call any witnesses.” The DHO’s report stated
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that Gonzalez waived the right to call witnesses. This second alleged procedural violation
does not stand or fall depending on the truth of Gonzalez’ allegation that he was refused
witnesses, because no due process violation occurs in the absence of some injury to
Gonzalez’ ability to present a defense. Gonzalez does not identify the witnesses he would
have called, describe their putative testimony, or explain why that testimony would have
changed the outcome of the hearing. Gonzalez’ second due process claim fails for lack of
substance.
Gonzalez makes one blanket substantive challenge to the finding of guilt on the
charge of possessing the cell phone: he denies the accuracy of the record. In his petition
and in his affidavit submitted with the petition he claims that “The Incident Report is
based on lies.” Gonzalez avers that the DHO report is “blatantly false” in stating that
Gonzalez admitted possession but explained in mitigation that “First time I’ve ever been
in trouble. My son had an accident and I needed to see him.” To the contrary Gonzalez
asserts that he never made such a statement. Further, he asserts that the corrections
officer emerged from his shared cubicle (for the cell arrangement at Coleman, see
Mercado-Rosado v. Underwood, No. 3:23-cv-60-SLH-KAP, 2023 WL 11968305 at *1
(W.D. Pa. Aug. 11, 2023), report and recommendation adopted 2023 WL 11968306
(W.D. Pa. Nov. 15, 2023)) with the cell phone in her hands, reportedly having found it
under a table, and that he knew nothing about it, having just returned from using a wall
phone to call his son.
As evidence of the unreliability of the DHO report Gonzalez asserts that other parts
are false as well. For instance, the DHO report states that a staff member served as
translator, but according to Gonzalez there was none. (In his third habeas petition
Gonzalez asserts as a fact relevant to that petition that he is fluent in English.)
Additionally, Gonzalez offers public media accounts of criminal proceedings against
corrections personnel at Coleman –including prosecutions of corrections officers for
introducing contraband into Coleman - as evidence that the actions by the corrections
officer who cited him and DHO who refused to review surveillance tapes “seem[] to follow
the same pattern.”
It is black letter law after Superintendent v. Hill that a petitioner cannot use habeas
to have the court reweigh the evidence considered by the DHO. See Mercado-Rosado v.
Underwood, No. 3:23-cv-111-NBF-KAP, 2023 WL 12147057 at *2 (W.D. Pa. July 31,
2023), report and recommendation adopted, 2025 WL 2782399 (W.D. Pa. Sept. 30,
2025); Kachina v. Gutierrez, 2024 WL 4173476, at *3 (D. Ariz. July 25, 2024), report and
recommendation adopted, 2024 WL 4165484 (D. Ariz. Sept. 12, 2024). Gonzalez’ denials
that the corrections officer found the phone in Gonzalez’ hands as opposed to under a
table in Gonzalez’ cubicle or that the investigating lieutenant accurately reported
Gonzalez’ inculpatory statement do not amount to anything other than invitations to
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reweigh evidence.
The principle that habeas does not permit reweighing of evidence does not change
when as here the petitioner claims that it is the DHO who did not accurately state the
testimony. Gonzalez’ assertion that the DHO’s report is false rests on two arguments. One
is the circular proposition that Gonzalez is not guilty because the DHO report is
inadequate to support the sanction imposed because the DHO report is wrong because
Gonzalez is not guilty. Whether summed up in one sentence or spread over an eight-page
brief, a circular argument is invalid.
Gonzalez’ second argument is that because other corrections personnel at Coleman
are fallible and in some cases guilty of criminal conduct, this DHO’s work product cannot
be relied on. That is simply another invitation to reweigh the evidence. And although it is
not logically invalid, that argument rests on evidence so remote from the DHO decision
under review that if it were a rule of decision it would invalidate all decisions (whether of
guilt or of innocence) by all courts everywhere. Even if Superintendent v. Hill had never
been decided, a rule that makes judgment impossible cannot govern review of judgments.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties are given notice of the fourteen day
period to file written objections to this Report and Recommendation. The parties are
advised that in the absence of timely and specific objections any appeal would be severely
hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d
Cir.2017)(describing standard of appellate review when no timely and specific objections
are filed as limited to review for plain error).
DATE: December 8, 2025
Keith A. Pesto,
United States Magistrate Judge
Notice to counsel by ECF and by U.S. Mail to:
Eric Gonzalez, Reg. No. 92751-509
F.C.I. Loretto
P.O. Box 1000
Cresson, PA 16630
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