CLD-044 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-3118
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KHARY JAMAL ANCRUM,
Appellant
v.
RONNIE HOLT
____________________________________
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 3:11-cv-01420)
District Judge: Honorable Richard P. Conaboy
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
November 16, 2012
Before: RENDELL, JORDAN and GARTH, Circuit Judges
(Opinion filed: December 4, 2012)
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OPINION OF THE COURT
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PER CURIAM
Khary Ancrum, a federal inmate presently confined at USP Canaan in Waymart,
Pennsylvania and proceeding pro se, appeals from an order of the United States District
Court for the Middle District of Pennsylvania dismissing his habeas corpus petition
pursuant to 28 U.S.C. § 2241. Because this appeal does not present a substantial
question, we will summarily affirm the District Court’s order. See 3d Cir. L.A.R 27.4;
I.O.P. 10.6.
Because we primarily write for the parties, we need only recite the facts necessary
for our discussion. After a disciplinary hearing, Ancrum was found guilty of a violation
of Code 113—Possession of Any Narcotics Not Prescribed for the Individual by Medical
Staff. The Disciplinary Hearing Officer (“DHO”) sanctioned Ancrum with the loss of
forty days of good conduct time; sixty days of disciplinary segregation; loss of visiting
privileges for four years followed by four years of restricted visiting; loss of commissary
privileges for two years; impound of personal property for two years; and loss of
telephone and email privileges for three years.
After exhausting his administrative remedies, Ancrum filed his § 2241 petition on
July 27, 2011. In his petition, Ancrum claims that the DHO violated his procedural due
process rights by not discussing in his report the reliability of confidential inmate witness
statements used to find him guilty of the violation. On May 14, 2012, a Magistrate Judge
issued a Report and Recommendation (“R&R”), recommending that Ancrum’s petition
be dismissed. On July 16, 2012, the District Court adopted the R&R and dismissed
Ancrum’s petition. Specifically, the District Court noted that Ancrum received the
minimum due process required when a DHO relies upon testimony from confidential
informants. Ancrum then timely filed this appeal.
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We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a), and “exercise
plenary review over the District Court’s legal conclusions and apply a clearly erroneous
standard to its findings of fact.” O’Donald v. Johns, 402 F.3d 172, 173 n.1 (3d Cir. 2005)
(per curiam); see also United States v. Friedland, 83 F.3d 1532, 1542 (3d Cir. 1996)
(“Our review of the district court’s order denying . . . relief under 28 U.S.C. § 2241 is
plenary.”). Section 2241 is the appropriate vehicle for constitutional claims when a
prison disciplinary proceeding results in the loss of good time credits, Queen v. Miner,
530 F.3d 253, 254 n.2 (3d Cir. 2008) (per curiam), and a certificate of appealability is not
required to appeal the denial of a § 2241 petition, Burkey v. Marberry, 556 F.3d 142, 146
(3d Cir. 2009). We may summarily affirm on any basis supported by the record. Murray
v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).
Federal prisoners have a liberty interest in statutory good time credits. Wolff v.
McDonnell, 418 U.S. 539, 557 (1974); see also 18 U.S.C. § 3624(b)(1); Vega v. United
States, 493 F.3d 310, 317 n.4 (3d Cir. 2007). Accordingly, when a prisoner’s disciplinary
hearing may result in a loss of good time credits, “the inmate must receive: (1) advance
written notice of the disciplinary charges; (2) an opportunity . . . to call witnesses and
present documentary evidence in his defense; and (3) a written statement by the
factfinder of the evidence relied on and the reasons for the disciplinary action.”
Superintendent v. Hill, 472 U.S. 445, 454 (1985).
When a disciplinary decision relies upon statements from confidential informants,
minimum due process requires the following:
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“(1) (T)he record must contain some underlying factual information from
which the (tribunal) can reasonably conclude that the informant was
credible or his information reliable; (2) the record must contain the
informant’s statement (written or as reported) in language that is factual
rather than conclusionary and must establish by its specificity that the
informant spoke with personal knowledge of the matters contained in such
statement.”
Helms v. Hewitt, 655 F.2d 487, 502 (3d Cir. 1981) (quoting Gomes v. Travisono, 510
F.2d 537, 540 (1st Cir. 1974)), rev’d on other grounds, Hewitt v. Helms, 459 U.S. 460
(1983). “The record” contains both the evidence presented during the disciplinary
hearing and the investigative report. Henderson v. Carlson, 812 F.2d 874, 879 (3d Cir.
1987). However, “a prison disciplinary committee need not reveal at a disciplinary
hearing evidence bearing on the reliability of confidential informants if prison officials
believe that such evidence is capable of revealing the identity of the informants and if the
evidence is made available to the court for in camera review.” Id. at 880.
The District Court properly dismissed Ancrum’s § 2241 petition. After our in
camera review of the record, particularly the Bureau of Prisons’ (“BOP”) investigative
report, we conclude that the first prong of Helms was met. Corroboration of witness
testimony is one indicia of reliability, and three confidential inmate informants presented
corroborating information regarding Ancrum’s prior heroin sales in prison. See Mendoza
v. Miller, 779 F.2d 1287, 1293 (7th Cir. 1985) (noting that corroborating testimony can
establish the reliability of confidential informant testimony).1 Furthermore, the BOP
1
Mendoza noted that the reliability of confidential informants can also be established by:
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investigative report meets the second prong of Helms. Each confidential informant
provided information regarding personal knowledge of Ancrum’s distribution of heroin
within USP Canaan. Specifically, the informants described personal purchases of heroin
from Ancrum and details regarding Ancrum’s methods of receiving and distributing the
heroin. Although we agree with the District Court that a better practice would have been
for the DHO to include a finding of reliability in his decision, we are confident that
Ancrum received the minimum due process required under Helms.
Nevertheless, Ancrum argues that he is entitled to relief because the Magistrate
Judge explicitly stated that the DHO had not complied with 28 C.F.R. § 541.8(f)(6). 28
C.F.R. § 541.8(f)(6) states that the “DHO may consider evidence provided by a
confidential informant (CI) that the DHO finds reliable.” BOP Program Statement
5270.08 states that when a DHO bases a disciplinary decision on information gathered
from confidential informants, the “DHO shall document, ordinarily in the hearing report,
the finding as to the reliability of each confidential informant relied on and the factual
basis for that finding.” While the BOP is required to follow its own regulations, see
(1) the oath of the investigating officer as to the truth of his report
containing confidential information and his appearance before the
disciplinary committee . . .; (3) a statement on the record by the chairman
of the disciplinary committee that he had firsthand knowledge of the
sources of information and considered them reliable on the basis of their
past record of credibility. . .; or (4) in camera review of material
documenting the investigator’s assessment of the credibility of the
confidential informant.
779 F.2d at 1293 (internal citations and quotation marks omitted).
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Wilson v. U.S. Parole Com’n, 193 F.3d 195, 200 (3d Cir. 1999), such error is harmless
because our analysis above assures us that Ancrum received the minimum due process
required under Helms for using information gathered from confidential informants, see
Elkin v. Fauver, 969 F.2d 48, 53 (3d Cir. 1992) (noting that harmless error analysis
applies to cases concerning prison disciplinary proceedings).
For the foregoing reasons, no substantial question is presented and we will affirm
the judgment of the District Court. See 3d Cir. L.A.R 27.4; I.O.P. 10.6.
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