Johnson v. Goetz

          ORDER DENYING APPLICATION FOR WRIT OF HABEAS CORPUS

          WILLIAM J. MART NEZ UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the Second Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 12) filed pro se by Applicant Philip N. Johnson on January 2, 2018. In response to a Court order, Respondent filed the Response to Order to Show Cause (ECF No. 15) on February 8, 2018. Mr. Johnson was given an opportunity to file a reply, but he did not do so. After reviewing the Application, the Response, and the record, the Court will deny the Application for the reasons set forth below.

         I. Background

         Mr. Johnson is a prisoner in the custody of the Federal Bureau of Prisons (“BOP”) currently incarcerated at the Federal Correctional Institution in Florence, Colorado. In the Application, Mr. Johnson challenges the validity of a prison disciplinary conviction he received while he was incarcerated at a federal prison in California.

         On July 12, 2016, a correctional officer prepared Incident Report No. 2871853 charging Mr. Johnson with “disruptive conduct (Code 229) most like threatening staff (Code 203).” (ECF No. 15-3 at 5). The Incident Report included the following description of the offense:

On July 12, 2016 at approximately 10:20 A.M., while conducting random pat searches on the center compound inmate Philip Johnson, Reg. No. 77304-079 communicated to me a threat to staff. I initiated the pat search in my general greeting of ‘how are you doing today.' In an aggressive tone he said, ‘Not good and why do you care you all aren't going to do anything about it so I have to.' I then immediately asked ‘What does that mean.' He then said ‘I am not telling you nothing, I'm done following the rules I have to take matters into my own hands.' I then immediately escorted him to the lieutenant's office for further clarification on his statement. He appeared agitated and unpredictable. His demeanor made me feel uncomfortable and not safe. There he stated again, ‘I'm done with following the rules and you will soon find out unexpectedly.' I then asked him directly ‘Are you threatening me or any staff.' He replied, ‘You'll find out because I'm done following the rules.' He would not provide any further statements. Inmate Johnson has a history of making threatening statements towards staff.

(Id.). Mr. Johnson received a copy of the Incident Report the same day. (Id.). He was advised of his right to remain silent and elected not to make a statement. (Id. at 6).

         On July 13, 2016, the Unit Discipline Committee (“UDC”) conducted a hearing regarding the incident where Mr. Johnson stated in his defense that “they're all liars.” (Id. at 5). The UDC referred the charge to a Discipline Hearing Officer (“DHO”) for further hearing. (Id. at 5-6). Mr. Johnson was given advanced written notice of his rights at the disciplinary hearing, but he refused to sign the form. (Id. at 7-9).

         On July 21, 2016, the DHO held Mr. Johnson's hearing on the charge. (Id. at 2-4). Mr. Johnson waived his right to staff representation, did not request any witnesses, and refused to provide a statement. (Id. at 2). The DHO considered the reporting officer's account set forth in Incident Report No. 2871853, as well as Incident Report No. 2851065, which charged Mr. Johnson with refusing an order in violation of Code 307, and his request for administrative remedy concerning that incident report. (Id. at 2, 10-11). Ultimately, Mr. Johnson was convicted of threatening another in violation of Code 203, and was sanctioned with the loss of twenty-seven days of good conduct time, disciplinary segregation for thirty days, and the loss of commissary, telephone, and visiting privileges for ninety days. (Id. at 4.) On October 13, 2016, Mr. Johnson received a copy of the DHO report, which contained a written statement of the evidence relied on to support the disciplinary action taken. (Id. at 2-4).

         Mr. Johnson claims in the Application that he was denied due process and free speech because there was insufficient evidence to support the disciplinary conviction. (ECF No. 12 at 2). Specifically, he contends that the reporting officer lied about the incident on July 12, 2016. (Id.). Mr. Johnson further asserts that the DHO refused to listen to his defense at the July 21, 2016 hearing and was biased against him. (Id.).

         II. Standards of Review

         The Court must construe the Application filed by Mr. Johnson liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam); Hall v. Bellmon, 935 F.2d 1106, 1110 (10^th 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 (10^th Cir. 1997). Habeas corpus relief is warranted only if Mr. Johnson “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3).

         In the context of prison disciplinary proceedings, “[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 (10^th Cir. 1996) (internal quotation marks omitted); see also Howard v. U.S. Bureau of Prisons, 487 F.3d 808, 811 (10^th Cir. 2007) (citing Mitchell in the context of a federal prisoner challenging a prison disciplinary conviction). However, “[p]rison disciplinary proceedings are not part ...