United States District Court, D. Colorado
ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS
PHILIP A. BRIMMER, UNITED STATES DISTRICT JUDGE
This matter is before the Court on the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 [Docket No. 1] (“the Application”) filed pro se by Applicant Leroy Buhl. The Application included a Memorandum in Support of Habeas Corpus Relief [Docket No. 1 at 4-5]. On August 18, 2014, Respondent was ordered to show cause why the Application should not be granted. Respondent has filed a Response to Order to Show Cause (“the Response”) [Docket No. No. 17], and Mr. Buhl has filed a Reply (which he titled an “Answer”) to Response to Order to Show Cause (“the Reply”) [Docket No. 22]. After reviewing the pertinent portions of the record in this case, including the Application, the Response, and the Reply, the Court concludes that the Application should be denied.
I. RELEVANT FACTUAL AND PROCEDURAL HISTORY
Mr. Buhl is a prisoner in the custody of the United States Bureau of Prisons (“BOP”) at the United States Penitentiary, Administrative Maximum, in Florence, Colorado. Mr. Buhl filed this action challenging the validity of a prison disciplinary conviction. According to Mr. Buhl, he was attacked by two inmates with knives on May 18, 2012, and, during the course of the attack, he managed to disarm one of the inmates and chase the other inmate away. Mr. Buhl did not receive a copy of the incident report within the ordinary 24-hour time frame due to FBI referral. The FBI declined prosecution on June 1, 2012, and Mr. Buhl was issued a copy of the incident report that same day. The report charged him with possession of a weapon based on his possession of the knife he took from one of the assailants. Mr. Buhl asserts that he gave the knife to prison authorities immediately after the attack ended.
On July 9, 2012, Mr. Buhl appeared before a discipline hearing officer (“DHO”) who postponed the proceedings pending appointment of a staff representative. Following a DHO hearing on July 18, 2012, Mr. Buhl was convicted of the disciplinary offense and was sanctioned with disciplinary segregation and the loss of telephone and commissary privileges for sixty days. The disciplinary sanctions did not include a loss of good time credits. Mr. Buhl asserted that he was not allowed to appear at the July 18 hearing and that he did not receive a copy of the written report from the DHO following the hearing.
On November 9, 2012, Mr. Buhl filed an action in this court seeking relief in Buhl v. Berkebile, Civil Action No. 12-cv-02953-WYD. Mr. Buhl received a copy of the DHO report on February 8, 2013 [Docket No. 17-1 at 16]. On February 14, 2013, he filed an administrative appeal of the disciplinary conviction. On April 17, 2013, the BOP Regional Director remanded the disciplinary matter to the DHO for reconsideration because of an unspecified procedural error [Docket No. 17-1 at 31].
On September 24, 2013, this Court denied Mr. Buhl’s pending application for federal habeas corpus relief in case number 12-cv-02953-WYD. Mr. Buhl filed a timely appeal to the Court of Appeals for the Tenth Circuit.
A different DHO conducted a rehearing on the incident report on December 9, 2013. Applicant received a notice of the DHO hearing and a written notice of his rights on October 10, 2013 [Docket No. No. 17-1 at 34], and he requested and was appointed a staff representative. Three witnesses made statements that were considered during the December 9, 2013 rehearing. Although Applicant refused to appear at the rehearing, the DHO considered his written statement. At the conclusion of the rehearing, the DHO upheld the finding that Applicant committed the prohibited act of possession of a weapon, as charged. The DHO sustained the sanctions previously imposed, which Applicant already had served [Docket No. 17-1 at 39]. As support for his findings and conclusion, the DHO relied on the incident report, photographs, memoranda from BOP staff, a video of the incident, Applicant’s written statements, and the statements of witnesses [Docket No. 17-1 at 37-38]. Applicant received a copy of the DHO’s report on January 2, 2014 and was notified of his right to appeal through the Administrative Remedy Program.
On May 21, 2014, the Court of Appeals for the Tenth Circuit dismissed Applicant’s appeal in case number 12-cv-02953-WYD as moot after the DHO issued a new report following the rehearing on December 9, 2013. The court further stated that Mr. Buhl could file a new application for habeas relief after he had exhausted the available administrative remedies as to the new disciplinary order.
On July 22, 2014, Mr. Buhl filed the instant action by filing an Application for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 [Docket No. 1]. His sole claim is that his constitutional right to due process was violated because the incident report he received on June 1, 2012 was issued more than two weeks after the alleged incident in violation of BOP regulations.
II. STANDARD OF REVIEW
The Court must construe the Application and the Reply liberally because Mr. Buhl is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
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. U.S. Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997). Habeas corpus relief is warranted only if Mr. Buhl “is in ...