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