United States District Court, D. Colorado
ORDER ON AMENDED APPLICATION FOR A WRIT OF HABEAS
CORPUS UNDER 28 U.S.C. § 2241
D. DOMENICO, UNITED STATES DISTRICT JUDGE
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.
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
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.)
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.)
Pro se Standard of Review
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.
28 U.S.C. § 2241
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).
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 ...