Nery Santiago v. JOHN NASH, Warden

NOT PRECEDENTIAL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

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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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At a prison disciplinary hearing, due process requires that the inmate: (i) appear1
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).
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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). The Court specifically noted that the1
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

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We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). In reviewing a2
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.
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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

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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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