Prisoner Loses Habeas Suit Challenging Loss of BOP Good Time for “Constructive Possession” of a Weapon

by Derek Gilna

Federal prisoner Travis Denny was found in be in “constructive possession” of a pointed weapon found in the duct work of a vent adjoining his cell, accessible by other prisoners. Despite his assertions that the weapon was not his and that several other prisoners had access to it, he was still sanctioned by the Disciplinary Hearing Officer (DHO) with the loss of forty days good time credit and given sixty days in disciplinary segregation.

            Denny exhausted his administrative appeals through the Bureau of Prisons (BOP) internal complaint procedure, and then filed a pro se 28 U.S.C. 2241 petition for a writ of habeas corpus, alleging that, “prison officials violated his Fourteenth Amendment due process rights by requiring him to forfeit the good-time credits,” according to the U.S. Court of Appeals for the Third Circuit. The case was in front of that court because the district court, in an unusual action, had summarily dismissed the lawsuit sua sponte, before the BOP had even had a chance to respond.

            Apparently determined to do the work normally done at the district court level, the appellate court took another unusual action: it appointed counsel to represent Denny, pro bono. Denny’s new attorneys narrowed the various issues down to just one, arguing that the “DHO’s disallowance of good time credits violate his due process rights under the Fourteenth Amendment.”

            The appeals court noted that “a prisoner has a constitutionally protected liberty interest in good time credit.” Young v. Kann, 926 F.2d 1396 (3d Cir. 1991). It further noted that Sandin v. Conner, 515 U.S. 472, 478 (1995) held that there existed an “intricate balancing of prison management concerns with prisoner liberty.”

            Although the court observed that Due Process rights did apply, “the key question in this case is what limit [it] ... places on the constructive possession theory in a prison context.”

            “Constructive possession,” a legal concept virtually unknown outside of correctional environments, effectively means that if you have access to an object, even if you are ignorant of its existence, and even if it is hidden from your view, you are still responsible for its presence, and any punishment that flows from it being there.

            Unfortunately, the case turned on that very issue, endorsed by the 8^th Circuit in Flowers v. Anderson, 661 F 3d 977, 980-81 (8^th Cir 2011) and Superintendent v. Hill, 472 U.S. 445, 454 (1985). Following those decisions, the court determined that the DHO hearing “comported with the minimum requirements of procedural due process (when) the findings of the (DHO) are supported by some evidence in the record.”

            As a result, although the appellate court gave the lawsuit the attention denied it by the district court, the decision in favor of the BOP was still affirmed. See: Denny v. Schultz, 708 F.3d 140 (3d Cir. 2013).

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