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Stine v. Berkebile

United States District Court, D. Colorado

April 6, 2015

DAVID BERKEBILE, Warden, ADX, Respondent.


R. BROOKE JACKSON, District Judge.

The matter before the Court is the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, ECF No. 1. On September 5, 2014, the Court entered an order that directed Respondent to show cause why the Application should not be granted. Respondent filed a Response, ECF No. 16, and Applicant, through counsel, [1] filed a Reply, ECF No. 17.

After reviewing the pertinent portions of the record in this case, including the Application, Answer, and Reply, the Court concludes that the action should be dismissed.


Applicant is a prisoner in the custody of the Federal Bureau of Prisons ("BOP"). He currently is incarcerated at the United States Penitentiary, ADMAX, in Florence, Colorado. Applicant is challenging the validity of a prison disciplinary conviction in Incident Report (IR) No. 2561571 that resulted in a loss of good time credits and other sanctions.

The offense that precipitated the disciplinary charge in question occurred on March 13, 2014. Resp., Attach. 3, ECF No. 16-3, at 1. Applicant initially was charged with the disciplinary charges of (1) Attempted Use of Mail for Abuses other than Criminal Activity (296)(A); and (2) Possession of Anything not Authorized (305). Id. at 5. The disciplinary hearing was held on June 3, 2014, and Applicant was found to have committed only the attempted use of mail for abuses other than criminal activity. Id. at 1.

Based on Respondents' failure to address Applicant's denial of administrative remedy appeal forms in the Preliminary Response, the Court excused Applicant's failure to exhaust his administrative remedies prior to filing this action, but denied the Application in part because the claim for money damages and a finding that the BOP is impeding his right to prepare a defense in his criminal case are improperly raised in a 28 U.S.C. § 2241 action. Sept. 5, 2014 Order, ECF No. 15, at 2-3. The Court now will address the merits of Applicant's claim that the evidence relied on by the Disciplinary Hearing Officer (DHO) lacked the "some evidence" required to find Applicant guilty of Offense 296 and that the disciplinary conviction should be expunged. The Court also will determine the merits of the two additional claims that counsel has included in the Reply: (1) denial of a requested witness; and (2) a delay in receipt of the DHO's written statement regarding the evidence relied on and the reasons for the disciplinary action.


An application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 "is an attack by a person in custody upon the legality of that custody, and... the traditional function of the writ is to secure release from illegal custody." Preiser v. Rodriguez, 411 U.S. 475, 484 (1973); see also McIntosh v. United States Parole Comm'n, 115 F.3d 809, 811 (10th Cir. 1997). Habeas corpus relief is warranted only if Applicant "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3).

"I]t is well settled that an inmate's liberty interest in his earned good time credits cannot be denied without the minimal safeguards afforded by the Due Process Clause of the Fourteenth Amendment." Mitchell v. Maynard, 80 F.3d 1433, 1444 (10th Cir. 1996) (internal quotation marks omitted); see also Howard v. United States Bureau of Prisons, 487 F.3d 808, 811 (10th Cir. 2007) (citing Mitchell in the context of a federal prisoner challenging a prison disciplinary conviction). However, "[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply." Wolff v. McDonnell, 418 U.S. 539, 556 (1974).

Where a prison disciplinary hearing may result in the loss of good time credits, ... the inmate must receive: (1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, 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, Mass. Correctional Institution, Walpole v. Hill, 472 U.S. 445, 454 (1985) (citing Wolff, 418 U.S. at 563-67). In addition, "revocation of good time does not comport with the minimum requirements of procedural due process, unless the findings of the prison disciplinary board are supported by some evidence in the record." Id., at 565 (internal citation and quotation marks omitted). Review under the some evidence standard "does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence." Howard, 487 F.3d at 812 (quoting Hill, 472 U.S. at 455). "A disciplinary board's decision can be upheld... even if the evidence supporting the decision is meager." Id. (internal quotations marks omitted).

Respondent asserts that Applicant received all the process he was due in his disciplinary proceeding because he received advance written notice of the DHO hearing twenty-four hours prior to the hearing, was provided the opportunity to call witnesses and present documentary evidence at the hearing, and received written notice of the findings and conclusions from the DHO. ECF No. 16 at 6. Respondents further assert that the evidence in the record before the DHO exceeded the some evidence standard. Id.

Applicant, in the November 3, 2014 Reply, argues that the IR reflects a "biased Bureau of Prison's employee's incorrect interpretation of what constitutes a violation of code 296." ECF No. 17 at 2. Applicant also argues that the documents Applicant possessed were sent to him by his attorney because they are relevant to his attorney's representation in Applicant's criminal case. Id. at 3. Applicant further contends that the DHO failed to investigate his claims that the documents were relevant to his criminal case and that federal District Judge Christine M. Arguello, if called as a witness, would confirm the relevance. Id. at 4. Finally, Applicant asserts he testified that the documents were relevant to affirmative defenses, including the "defense of lesser evils, " the documents were public records, and both the inmate, who's identity is redacted, and his attorney refute Respondent's contention that there is some evidence. Id. at 4-5. Applicant contends the DHO found him guilty of Code No. 297 in the DHO report, id. at 5-6, which apparently Applicant references because the DHO, as is discussed below in this Order in Footnote No. 2, inadvertently referred to Code 297. But in any event, Applicant argues he did not violate Code No. 296. Id. ...

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