Noe v. Matevousian

          ORDER ON AMENDED APPLICATION FOR A WRIT OF HABEAS CORPUS UNDER 28 U.S.C. § 2241

          DANIEL D. DOMENICO, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Amended Application for a Writ of Habeas Corpus under 28 U.S.C. § 2241 (Doc. 6), filed pro se by Applicant Peter George Noe. On April 23, 2019, the Court ordered Respondent to show cause why the Amended Application should not be granted. (See Doc. 14.) Respondent filed a Response (Doc. 20), on May 14, 2019, and Mr. Noe filed a Reply to the Response (Doc. 21) on May 18, 2019. After reviewing the pertinent portions of the record in this case, including the Amended Application, the Response, and the Reply, the Court concludes that the Amended Application should be denied, and the action dismissed.

         BACKGROUND

         Mr. Noe is a prisoner in the custody of the Federal Bureau of Prisons (BOP) and currently incarcerated at the United States Penitentiary in Florence, Colorado. He sets forth two claims that challenge two different Incident Reports. (Doc. 6 at 2-7.)

         In Claim One, Mr. Noe asserts that on March 12, 2018, he received two mail rejections based on third party inmate-to-inmate correspondence. (Doc. 6 at 2.) Mr. Noe contends that when he challenged the rejections by filing a request for administrative remedy, the Special Investigative Services (“SIS”) Department retaliated by filing IR No. 3127229, charging him with engaging in the prohibited act of communicating gang affiliation. (Id. at 2-3, 16.) Mr. Noe argues the “court” recently ruled that a prison may not reject incoming correspondence just because it contains information about another inmate. (Id. at 3.) He further argues that the SIS Department told him that SIS staff has discretion when interpreting what is considered gang involvement, and they determined he was affiliated with a gang that Mr. Noe contends does not exist. (Id.)

         In Claim Two, Mr. Noe asserts that he received a mail rejection on May 22, 2018, because his outgoing mail was addressed to someone in Riverside, California. (Doc. 6 at 4-5.) Mr. Noe alleges that when a prison staff member, D. Bilbrey, tried to return the mail to him, Mr. Noe faced the surveillance camera during the interaction and said nothing. Nonetheless, Mr. Bilbrey later claimed that Mr. Noe had threatened him, and prison staff issued an incident report. Mr. Noe claims the footage would show that he did not talk to Mr. Bilbrey, contradicting the assertion that Mr. Noe had threatened him. (Id. at 6.) Mr. Noe further alleges that the incident report was written in retaliation for his “filing on the S.I.S. dept, ” and that the hearing officer denied his request to present witnesses to prove his claim. (Id.) Mr. Noe also alleges he requested camera footage of the incident but the hearing officer told him the camera does not have audio capabilities. Mr. Noe speculates that the prison staff reviewed the tape, saw that the three officers were lying about his making threatening statements, and for that reason never provided the tapes. (Id. at 7.)

         ANALYSIS

         I. Legal Standard

         A. Pro se Standard of Review

         The Court must construe the Amended Application and other papers filed by Mr. Noe liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The Court cannot not act as an advocate for a pro se litigant. Id.

         B. 28 U.S.C. § 2241

         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 (10th Cir. 1997). Habeas corpus relief is warranted only if Mr. Noe “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3).

         With respect to prison disciplinary proceedings, “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.” 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, “prison 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 ...