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Moore v. Denham

United States District Court, D. Colorado

May 27, 2015

KEVIN A. MOORE, Petitioner,
v.
DEBORAH DENHAM, Warden, Respondent.

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. 5] (“the Application”) filed pro se by Petitioner Kevin A. Moore. On October 29, 2014, Respondent was ordered to show cause why the Application should not be granted. On November 13, 2014, Respondent filed a Response to Order to Show Cause (“the Response”) [Docket No. 17]. Mr. Moore has not filed a reply. After reviewing the pertinent portions of the record in this case, including the Application and the Response, the Court concludes that the Application should be denied.

I. RELEVANT FACTUAL AND PROCEDURAL HISTORY

Mr. Moore is a prisoner in the custody of the United States Bureau of Prisons (“BOP”) at the Englewood Federal Correctional Institution in Littleton, Colorado serving a 400-month sentence for Murder and Conspiracy to Commit Murder in violation of 18 U.S.C. §§ 1111 & 1117. Mr. Moore filed this action challenging the validity of a prison disciplinary conviction. According to Mr. Moore, he was assaulted in the doorway of his cell. Specifically, on April 25, 2014, Mr. Moore heard his cell door open. W hen he turned around, he was punched in the nose and hit several more times by inmate Trey Tillman. When Petitioner tried to grab Tillman’s leg to stop him, Tillman spun around and ran out of Petitioner’s cell and back into his cell.

As a result of this incident, on May 5, 2014, Petitioner was charged with a violation of 201: Fighting with another person. He received a copy of the report on May 6, 2014. Docket No. 17-1 at 28. On May 14, 2014, Mr. Moore appeared before a discipline hearing officer (“DHO”). The DHO found that Moore committed the prohibited act of fighting based on the following evidence:

B. Summary of inmate statement: I was not in a fight, I was assaulted. I was just in the doorway of my cell and heard the door open. I turned around and punched in the nose, which dazed me. I believe it is still broken. I stumbled back and he came at me hitting me several more times. I tried to grab his leg but he spun around and ran out of my cell and into his cell. I came out of my cell but there were two guys in front of his cell blocking it. I went to the bathroom and cleaned up. After that I told him if he wanted to fight now my back wasn’t turned. I didn’t even know this guy. If I get convicted of fighting it would just be rewarding him. He came into my cell and ran out. I tried to grab him to stop but I wasn’t throwing punches.
The inmate’s due process rights were reviewed by the DHO, during the hearing.
The inmate stated he understood his rights, did not submit documentary evidence, and confirmed he did request witnesses and did not request staff representation. The witness was not called to the hearing as he had already provided a statement that he had no firsthand knowledge of the incident.
The inmate’s statement to the DHO is documented above.
After being advised of his rights the inmate stated to the Investigative Lieutenant: “I was standing in my cell and a guy came in and started punching me. He hit me a few time [sic] before I even put my hands up. I didn’t even know that I hit him. I grabbed him by the legs but I wasn't fighting, I was defending myself.”
After being advised of his rights the inmate stated to the UDC: Inmate stated he acted in self-defense.
As stated in the incident report:
On 5-5-2014 at 10:00 am, SIS completed an investigation utilizing the NiceVision camera system and inmate interviews. It was determined that on 4-25-14 at approx. 4:44 pm, inmate Trey Tillman entered the room of Inmate Kevin Moore in Lower East. At 4:45 pm, Inmate Tillman is seen being pushed out of the cell door into the hallway, throwing a punch with his right arm towards the cell and then wrestling his way back into the cell. He leaves at 4:46 pm and returns to his cell. Inmate Moore is seen standing in the hallway at approx. 4:53 pm and appears to be yelling into Inmate Tillman’s cell across the hall and then proceeding to the area of the range bathroom. At approximately 7:32 pm, both inmates were located, escorted to the Lt’s Office, photographed and medically assessed prior to being placed in the Special Housing Unit. Both inmates displayed injuries consistent with a physical altercation. During interviews by SIS, inmate Moore admitted to returning punches after inmate Tillman entered his cell and began punching him.
Memorandum from Lt. K. White dated April 25, 2014. The Lower East Officer, Bishop notified the Operations Lt. of a drop note he received stating inmates Moore, Kevin and Tillman, Trey were involved in a fight. Both inmates were located and escorted to the Lieutenant’s office. Inmate Moore had bruises and contusions to the face and inmate Tillman had a small laceration to the lower lip. All injuries were consistent with being involved in a physical ...

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