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HOMEN v. HASTY

October 31, 2002

PASTOR PERAFAN HOMEN, PETITIONER,
V.
DENNIS W. HASTY, WARDEN, METROPOLITAN CORRECTIONAL CENTER, NEW YORK, NEW YORK, RESPONDENT.



The opinion of the court was delivered by: VICTOR Marrero, United States District Judge.

DECISION AND ORDER

Pastor Perafan Homen ("Homen") filed the instant petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241 (the "Petition"), alleging that his due process rights were violated in a disciplinary hearing conducted by a disciplinary hearing officer ("DHO") at the New York Metropolitan Correctional Center ("MCC") concerning three separate charges of Homen's unauthorized use of a telephone to make three-way, international calls to Colombia. Respondent Dennis Hasty ("Respondent"), Warden of the >MCC, filed an opposition to the Petition. For the reasons discussed below, Homen's Petition is denied.

I. FACTUAL BACKGROUND

Homen was convicted in the Eastern District of New York on one count of engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848(A); one count of conspiracy to import cocaine into the United States, in violation of 21 U.S.C. § 963 and 960(b)(1); one count of conspiracy to distribute and to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846 and 841(b)(1)(A); and four counts of distribution with intent to distribute cocaine, in violation of 21 U.S.C. § 841 (a)(1) and 841(b)(1)(A). (See Judgment, United States v. Homen, Docket No. CR-95-722-01 (TCP), dated May 1, 2001, attached as Ex. B to Declaration of David Kennedy, dated April 26, 2002 ("Kennedy Decl.").)

On April 27, 2001, the Honorable Thomas C. Platt of the Eastern District of New York sentenced Homen to incarceration for thirty years, to be served at the Federal Correctional Institution in Coleman, Florida. (See id.) Homen is currently serving his term of imprisonment at his designated facility in Coleman, Florida. At the time of the events in question, however, Homen was incarcerated at the MCC.

While at the MCC, Homen was charged with using a telephone to make unauthorized, three-way international phone calls to Colombia on May 27, 1999, May 28, 1999, and September 17, 1999. These phone calls were all tape recorded by the MCC. The calls on May 27 and May 28 were discovered in the course of a review of Homen's calling activity, triggered by an MCC officer's discovery of Homen's unauthorized, three-way international phone call on September 17, 1999.

On May 27, 1999, Homen dialed (718) 335-1523. (See Incident Report No. 716644, dated September 23, 1999, attached as Ex. A to Declaration of Anthony V. Pierro, dated April 26, 2002 ("Pierro Decl.").) Homen spoke with an individual and stated that he would call later to speak with his sister in Colombia. Later on the same day, Homen called (718) 335-1520. An unidentified female answered the phone, pretending to be the operator. Homen asked for a collect call. After a pause, he was transferred through a three-way connection to his daughter in Colombia. Homen spoke with his daughter who asked that he call back on May 28, 1999 for his eldest daughter's birthday. According to the Bureau of Prison's records, Homen's children live in Colombia. (See Memorandum by Yanil Abdelhafes, MCC Telephone Monitor, dated September 23, 1999 ("Abdelhafes Memorandum"), attached as Ex. L to Pierro Decl., at 3.)

On May 28, 1999, at 11:19 a.m., Homen again dialed (718) 335-1520. (See Incident Report No. 716643, dated September 23, 1999, attached as Ex. B to Pierro Decl.) A female answered and told Homen that the person he was looking for was not there and asked him to call back later. At 2:52 p.m., Homen called the same number. A female answered the phone, again pretending to be the operator. Homen asked for a collect call. After a pause, Homen's daughter came on the line and he wished her a happy birthday.

On September 4, 1999, Homen called the same number. (See Abdelhafes Memorandum at 2) A female answered, again pretending to be the operator. Homen asked for a collect call. After a pause, Homen was connected to his son. In the course of Homen's conversation with his son, Homen's son informed his father that he was working on his thesis and preparing to graduate.

On September 11, 1999, at 12:56 p.m., Homen again called (718) 335-1520. A female answered the telephone. Homen asked whether she had time to speak with him. She asked him to call back at 6:00 p.m. At 6:00 p.m., Homen called back and identified himself as "Alberto Vega" and stated "collect call please." The female again pretended to be the operator and connected him to another line where he spoke with an unidentified woman. Homen spoke to this woman about his baby and told her that he heard rumors about her hitting the baby. We also told her not to go to his mother's house.

On September 17, 1999, Homen again dialed (718) 335-1520 and spoke with a female. (See Incident Report No. 714849, dated September 17, 1999, attached as Ex. C to Pierro Decl.) She stated to Homen that she was having trouble paying for the phone bills. Homen asked about whether "he was up to date." We then asked, "Well, can I get through?," to which she replied, "Wait awhile." Later that same day, Homen again called (718) 335-1520. A female answered and he asked for a collect call. He was then transferred, after a short pause, to his son.

On September 24, 1999, Homen was served by hand with copies of the incident reports for May 27 and May 28, 1999. On September 17, 1999 Homen was served by hand with a copy of the incident report for September 17, 1999. All three incident reports were referred to the DHO for disciplinary action.

On September 29, 1999, Homen was advised of his rights before the DHO by Case Manager D. Ford. (See Forms entitled "Inmates Rights At Discipline Hearing," dated September 29, 1999, attached as Exs. D, E and F to Pierro Decl.) Homen acknowledged those rights by signing each form. At Homen's request, Ricardo Sedano, a full-time Bureau of Prisons employee, was assigned to represent him at the hearing. (See DHO Reports, dated December 1, 1999, attached as Exs. H, I and J to Pierro Decl.*fn1 Sedano was provided access to the tape recorded conversations as well as the incident reports. Sedano listened to the tapes and translated them himself.*fn2

A disciplinary hearing was conducted on October 19, 1999, regarding all three incident reports. At the hearing, Sedano submitted a memorandum for review by the DHO. (See Memorandum by Ricardo Sedano, dated September 29, 1999, attached as Ex. G to Pierro Decl.) Sedano's memorandum indicated that he attempted to contact the two witnesses Homen requested. Those witnesses were Homen's son and daughter, Juan Pablo Perafan Homen and Marta Angelica Perafan Homen. In ...


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