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Pittman v. Fox

United States District Court, D. Colorado

October 20, 2017

JACK FOX, Respondent.

          MINUTE ORDER


         Entered By Magistrate Judge Scott T. Varholak This matter is before the Court upon the Court's review of the parties' briefing on the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (the “Application”). [#1, 28, 42] The parties have consented to this Court's jurisdiction over this case for all purposes, including the entry of judgment. [#24-26] For the reasons stated below, the Court SETS this matter for an Evidentiary Hearing and APPOINTS counsel to represent Applicant.

         I. BACKGROUND

         On October 21, 2015, Applicant was issued a Prison Misconduct Report, in which Applicant was accused of violating Code 297 (use of the telephone for abuses other than criminal activity), [1] based upon another inmate's use of Applicant's pin number to make a telephone call.[2] [#1 at 2-3] That inmate, D. Miller, used several other inmates' pin numbers, in addition to Applicant's, to make telephone calls. [Id.] On October 27, 2015, Applicant was brought before the prison unit disciplinary committee chairman and informed that the alleged violation was being referred to a discipline hearing officer (“DHO”). [#1 at 3; #42 at 2, 15] At this meeting, Applicant was notified of the rights that would be afforded to him at the disciplinary hearing and signed an Inmate Rights at Discipline Hearing form that identified those rights, including “[t]he right to have a fulltime member of the staff . . . to represent [him] before the Discipline Hearing Officer” and “[t]he right to call witnesses.” [#42 at 2, 16] Applicant also signed a Notice of Discipline Hearing Before the DHO form (the “Notice Form”) during the meeting, on which he indicated that he both “wish[ed] to have a staff representative” and “wish[ed] to have witnesses” at the disciplinary hearing. [Id. at 2, 15] Applicant expressly identified Mr. Miller as the witness he wished to call at the hearing, stating that Mr. Miller could testify that Applicant did not give Mr. Miller access to his pin number. [Id. at 15]

         On November 3, 2015, the DHO removed Applicant from his assigned cell in the special housing unit (“SHU”) and brought him to an empty cell to conduct the disciplinary hearing.[3] [#1 at 3-4] Applicant contends that he informed the DHO that he had not yet had an opportunity to meet with his staff representative to prepare his defense and that he was not “willing to go forth with such hearing until he's appointed a staff rep[resentative], and allowed to call his witness.” [Id. at 4-5] Applicant claims that the DHO ignored his concerns and found him guilty of phone abuse as charged. [Id. at 5] As a result of the finding of guilt, the DHO suspended Applicant's telephone privileges for 90 days and disallowed 27 days of good conduct time. [#28-3 at 2] Following unsuccessful administrative appeals of the DHO's decision [#1 at 6], Applicant filed the instant Application on October 14, 2016. [#1]

         In response to the Application, Respondent contends that, although Applicant initially requested a staff representative and to call a witness, he subsequently waived those rights.[4] [#28 at 5] In support, Respondent points to the Discipline Hearing Officer Report (the “DHO Report”), which states “[Applicant] initially requested a witness and a staff representative but waived that right at the time of the hearing. [Applicant] stated to the DHO that [he] w[as] ready to proceed with the hearing.” [#28-3 at 2] Respondent also submitted a declaration from the hearing officer stating that Applicant waived his right to a staff representative and to call a witness. [#28-1 at ¶¶ 8-9] Respondent further submitted a version of the Notice Form signed by Applicant on October 27, 2015 that includes a handwritten statement at the bottom stating “I request to waive my staff rep and witness” followed by a signature. [#28-3 at 7]

         In his Reply, Applicant denies that he ever waived his right to a staff representative or to call a witness. [#42 at 3, 11] Applicant further contends that he never agreed to go forward with the hearing in the absence of a staff representative or without calling Mr. Miller as a witness. [Id.]


         “It 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 quotations omitted). The Supreme Court has acknowledged, however, that “[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). Applying this guidance, the Supreme Court has held:

[w]here 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. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985). Although a prisoner does not have a general constitutional right to have a staff representative at a disciplinary hearing, “due process requires that inmates be provided with the aid of a staff representative [ ] where the inmate is illiterate or ‘the complexity of the issue makes it unlikely that the inmate will be able to collect and present the evidence necessary for an adequate comprehension of the case.'” Jordan v. Wiley, No. 06-CV-02090-WYD, 2009 WL 1698509, at *9 (D. Colo. June 17, 2009), aff'd, 411 Fed.Appx. 201 (10th Cir. 2011) (quoting Wolff, 418 U.S. at 570).

         “[I]n addition to [these] requirements, revocation of good-time credits does not comport with the minimum requirements of procedural due process, unless the findings are supported by some evidence in the record.” Edwards v. Balisok, 520 U.S. 641, 648 (1997). Violations of these due process requirements are subject to harmless error review. See Brennan v. United States, 646 Fed.Appx. 662, 666 (10th Cir. 2016), cert. denied sub nom., 137 S.Ct. 695 (2017), reh'g denied sub nom., 137 S.Ct. 1453 (2017) (applying harmless error review to notice requirement upon “[s]eeing no reason why one Wolff requirement would be subject to harmless error review and another would not”); Grossman v. Bruce, 447 F.3d 801, 805 (10th Cir. 2006) (holding that “errors made by prison officials in denying witness testimony at official hearings are subject to harmless error review”).

         A habeas petitioner “is entitled to receive an evidentiary hearing so long as his allegations, if true and if not contravened by the existing factual record, would entitle him to habeas relief.” Miller v. Champion, 161 F.3d 1249, 1253 (10th Cir. 1998). “The purpose of an evidentiary hearing is to resolve conflicting evidence.” Anderson v. Att'y Gen. of Kan., 425 F.3d 853, 860 (10th Cir. 2005).

         III. ...

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