United States District Court, D. Colorado
PHILIP N. JOHNSON, Applicant,
C.R. GOETZ, Respondent.
ORDER DENYING APPLICATION FOR WRIT OF HABEAS
WILLIAM J. MART NEZ UNITED STATES DISTRICT JUDGE.
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.
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.
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).
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).
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).
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
Standards of Review
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
(10th Cir. 1991). However, the Court should not be
an advocate for a pro se litigant. See
Hall, 935 F.2d at 1110.
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. Johnson
“is in custody in violation of the Constitution or laws
or treaties of the United States.” 28 U.S.C. §
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 (10th Cir. 1996) (internal
quotation marks omitted); see also Howard v. U.S. Bureau
of Prisons, 487 F.3d 808, 811 (10th Cir.
2007) (citing Mitchell in the context of a federal
prisoner challenging a prison disciplinary conviction).
However, “[p]rison disciplinary proceedings are not