United States District Court, D. Colorado
T. VARHOLAK, UNITED STATES MAGISTRATE JUDGE.
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
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),  based upon another inmate's use of
Applicant's pin number to make a telephone
call. [#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]
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. [#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]
response to the Application, Respondent contends that,
although Applicant initially requested a staff representative
and to call a witness, he subsequently waived those
rights. [#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]
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.]
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
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).
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
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).