Discovery of contraband in a shared cell is sufficient to warrant loss of good time credits

In Denny v. Schultz, Docket No. 11-1450 (3d Cir. Feb. 15, 2013), the Third Circuit considered the question of what limit the Due Process Clause places on the constructive possession theory in the prison context. Inmate Denny shared a cell with one other inmate. During a routine search of the cell, a corrections officer found two metal shanks located in the duct work of a ceiling vent. The duct was accessible from both Denny's cell and the adjacent cell, which housed an additional three inmates. Denny and his cell mate were both charged with possession of a weapon, but the inmates in the adjacent cell were not charged. Denny was sanctioned and received sixty days in disciplinary segregation and the forfeiture of forty days good time credit.

After exhausting his administrative remedies, Denny filed a 28 U.S.C. § 2241 petition. The district court sua sponte dismissed the petition, finding that the Disciplinary Hearing Officer's (DHO) findings were supported by "some evidence," including the fact that the contraband weapons were found in the duct work of Denny's assigned cell (citing Superintendent v. Hill, 472 U.S. 445, 454 (1985)). Denny appealed.

On appeal, the Third Circuit agreed that the "some evidence" standard applied and that it need only find that the DHO's decision had "some basis in fact" in order to affirm the decision as comporting with the Due Process Clause. The Court then noted that other courts to have considered this question have uniformly held that the discovery of contraband in a shared cell constitutes "some evidence" of possession sufficient to uphold a prison disciplinary sanction, including the loss of good time credits, against each inmate in the cell under a theory of collective responsibility or collective guilt. Applying this theory, the Court concluded that the undisputed discovery of two shanks in a space accessible within Denny's cell constituted "some evidence" that Denny possessed the weapons in question. Accordingly, the DHO did not violate Denny's due process rights by finding he had committed the prohibited act and sanctioning him with a loss of good time credit.

Judge Rendell filed a dissenting opinion, arguing that constructive possession required either the exercise of dominion or control, or the power and intention to exercise dominion or control, over the property. Because such evidence was absent, Judge Rendell would have reversed the district court's sua sponte dismissal of Denny's habeas petition and remanded for resolution on the merits.

General appellate waiver does not bar appeal of subsequent modification of terms of supervised release

Deciding a matter of first impression, the Third Circuit, in United States v. Wilson, Docket No. 12-1881 (3d Cir. Feb. 14, 2013), ruled that a defendant's broad, general waiver of appellate rights encompassed only his original sentence, not the subsequent modification of the terms of his supervised release.

Wilson pled guilty to two federal drug charges. His plea agreement contained a waiver of his right to appeal or collaterally challenge his conviction and sentence. After sentencing, Wilson filed a Notice of Appeal, but the Third Circuit enforced the waiver and affirmed his conviction and sentence. Wilson was eventually released from prison and began serving a six year term of supervised release. About three months into his term, his Probation Officer filed an application to modify the terms of Wilson's supervised release to include participation in a mental health program as an additional condition. The district court agreed to the requested modification and ordered Wilson to undergo a mental health assessment and, if necessary, to participate in an approved mental health treatment program.

Wilson appealed. The government moved to dismiss the appeal on the basis of the appellate waiver, arguing that the word "sentence" in Wilson's appellate waiver encompassed any challenge to the terms and conditions of that sentence, including subsequent modifications of the terms of his supervised release. The Third Circuit rejected this argument and adopted the reasoning of several other Circuits holding that a general waiver of appellate rights with respect the original sentence does not foreclose a challenge to a post-sentencing order modifying the terms and conditions of the original sentence. The Court found that, while Wilson's appellate waiver could reasonably be understood to encompass a waiver of  his right to appeal the "sentence" imposed at sentencing and memorialized in the judgment and commitment order, it did not waive a right to appeal a later modification of his "sentence."

After concluding that Wilson's appeal was not barred by the appellate waiver, the Third Circuit considered the merits of Wilson's appeal and affirmed the modification of Wilson's terms of supervised release.