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Terrell v. Matevousian

United States District Court, D. Colorado

July 2, 2019

BROOKS JAMES TERRELL, Applicant,
v.
ANDRE MATEVOUSIAN, Respondent.

          ORDER DENYING APPLICATION FOR A WRIT OF HABEAS CORPUS

          William J. Martinez United States District Judge.

         This 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.

         I. Factual and Procedural Background

         Applicant 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.

         In the 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.

         In the 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).

         In the 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. (Id.).

         II. Legal Standard

         Applicant 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 (1983).

         The 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 811-12.

         “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.'” 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 disciplinary action.

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).

         III. ...


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