United States District Court, D. Colorado
ORDER DENYING APPLICATION FOR A WRIT OF HABEAS
William J. Martinez United States District Judge.
matter comes before the Court on the Amended Application for
a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241
(ECF No. 6), filed pro se by Brooks James Terrell on
December 11, 2018. On April 11, 2019, the Court issued an
Order to Show Cause (ECF No. 17) to Respondent as to why the
Amended Application should not be granted. Respondent filed a
Response on May 2, 2019 (ECF No. 18). Applicant filed a
“Response to Document (19) the Respondent's
Reply” (ECF No. 19) on May 14, 2019, which the Court
construes as a reply in support of the Amended Application.
Having considered the parties' filings, the Court denies
the Amended Application and dismisses this action for the
reasons discussed below.
Factual and Procedural Background
is in the custody of the federal Bureau of Prisons at the
U.S. Penitentiary in Florence, Colorado. On November 23,
2018, he commenced this action by filing pro se an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2241 (ECF No. 1) and a Prisoner's Motion and
Affidavit for Leave to Proceed Pursuant to 28 U.S.C. §
1915 in a Habeas Corpus Action (ECF No. 3). The Court granted
him leave to proceed under 28 U.S.C. § 1915 (ECF No. 4).
At the Court's direction (ECF No. 5), on December 11,
2018, Applicant filed the Amended Application (ECF No. 6),
which is the operative pleading.
Amended Application (ECF No. 6), Applicant sets forth one
claim for relief. He alleges a violation of due process with
regard to an incident report and disciplinary hearing. More
specifically, he argues he was not afforded the right to
appear for a hearing prior to the re-writing of an incident
report. He requests a determination that he had such right
and expungement of the incident report.
Response, Respondent asserts, “Applicant's
procedural due process rights were not violated, as he
received adequate notice of the charges against him, and in
any event he received notice of the incident report well
before his hearing. There is evidence supporting the finding
that he committed an act prohibited by the Inmate
Disciplinary Code.” (ECF No. 18 at 2). Respondent
provided a copy of the Discipline Hearing Officer Report,
which explains that Applicant was sanctioned 27 days
“disallowance good conduct time” and 90 days
“loss of phone” because he “committed the
prohibited acts of Use of the Phone for Abuses Other than
Criminal Activity.” (ECF No. 18-14 at 4).
Reply, Applicant contends Respondent “concedes”
that there was no hearing before the re-writing of the
incident report. (ECF No. 19 at 2). He cites 28 CFR §
541.8 in support of his argument that a hearing must have
been held prior to the re-writing of the incident report.
proceeds pro se. Therefore, the Court
“review[s] his pleadings and other papers liberally and
hold[s] them to a less stringent standard than those drafted
by attorneys.” Trackwell v. United States, 472
F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see
also Haines v. Kerner, 404 U.S. 519, 520B21 (1972).
However, a pro se litigant's “conclusory
allegations without supporting factual averments are
insufficient to state a claim on which relief can be
based.” Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). A court may not assume that an applicant
can prove facts that have not been alleged, or that a
respondent has violated laws in ways that an applicant has
not alleged. Associated Gen. Contractors of Cal., Inc. v.
Cal. State Council of Carpenters, 459 U.S. 519, 526
writ of habeas corpus is available if a prisoner “is in
custody in violation of the Constitution or laws or treaties
of the United States. 28 U.S.C. § 2241(c)(3). A section
2241 habeas proceeding 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.” McIntosh v. U.S. Parole
Common, 115 F.3d 809, 811 (10th Cir.1997) (quoting
Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)).
Prison disciplinary proceedings that result in the
deprivation of good-time credits may be challenged in a
§ 2241 proceeding. McIntosh, 115 F.3d at
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.'” Howard v. U.S. Bureau
of Prisons, 487 F.3d 808, 811 (10th Cir. 2007) (applying
law to federal prisoner) (quoting Mitchell v.
Maynard, 80 F.3d 1433, 1444 (10th Cir. 1996) (internal
quotation marks and citation omitted)). However,
“[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). Where
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. v. Hill, 472 U.S.
445, 454 (1985) (citing Wolff, 418 U.S. at 563-67).
In addition, to comport with due process, there must be some
evidence to support a disciplinary conviction. Hill,
472 U.S. at 454. Further, the decision-maker must be
impartial. See Gwinn v. Awmiller, 354 F.3d 1211,
1219 (10th Cir. 2004) (citation omitted).