Kahn v. Daniels

Filing 27

ORDER adopting 25 Report and Recommendations. Applicant's 26 Objection is overruled, and the 1 Application for a Writ of Habeas Corpus is denied. The case is dismissed with prejudice by Judge William J. Martinez on 7/20/12.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 11-cv-02985-WJM-MJW
ROY ALBERT KAHN,
Applicant,
v.
CHARLES DANIELS,
Respondent.

ORDER ADOPTING AND AFFIRMING THE APRIL 2, 2012 RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on the April 2, 2012 Recommendation by U.S.
Magistrate Judge Michael J. Wantanabe (the “Recommendation”) (ECF No. 25) that
Applicant Roy Albert Khan’s Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241 be denied, and that the case be dismissed with prejudice. The
Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B);
Fed. R. Civ. P. 72(b).
I. BACKGROUND
The facts relevant to a resolution of the Application for a Writ of Habeas Corpus
are detailed in the Recommendation. Briefly, Applicant, a federal prisoner incarcerated
at the United States Penitentiary in Florence, Colorado, proceeding pro se, commenced
the present action pursuant to 28 U.S.C. § 2241 on November 16, 2011. (ECF No. 1.)
Applicant asserts that his due process rights under the Fifth Amendment were violated
at a disciplinary hearing, conducted by a Disciplinary Hearing Officer (“DHO”), where

Applicant was found to have concealed a cellular phone in his prison cell in violation of
the Bureau of Prison’s (“BOP”) Prohibited Act Code. (Id.) Applicant seeks an order
expunging the incident report related to the hearing, and the restoration of his good
time credits. (Id.)
On April 2, 2012, the Magistrate Judge issued his Recommendation that the
Application for a Writ of Habeas Corpus be denied and that Applicant’s case be
dismissed with prejudice. (ECF No. 25.) On April 10, 2012, Applicant filed a timely
Objection to the Recommendation. (ECF No. 26).
For the reasons stated below, the Application for a Writ of Habeas Corpus is
denied and Applicant’s case is dismissed with prejudice.
II. LEGAL STANDARDS
A.

Standard of Review
When a Magistrate Judge issues a recommendation on a dispositive matter,

Federal Rule of Civil Procedure 72(b)(3) requires that the District Court Judge
“determine de novo any part of the magistrate judge’s [recommendation] that has been
properly objected to.” Fed. R. Civ. P. 72(b)(3). In conducting its review, “[t]he district
court judge may accept, reject, or modify the recommendation; receive further
evidence; or return the matter to the magistrate judge with instructions.” Id.
Further, in considering the Magistrate Judge’s Recommendation in the instant
case, the Court is also mindful of the Applicant’s pro se status, and accordingly, reads
his pleadings and filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
However, such liberal construction is intended merely to overlook technical formatting

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errors and other defects in the Applicant’s use of legal terminology and proper English.
See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Pro se status does not
relieve Applicant of the duty to comply with various rules and procedures governing
litigants and counsel or the requirements of the substantive law and, in these regards,
the Court will treat Applicant according to the same standard as counsel licensed to
practice law before the bar of this Court. See McNeil v. United States, 508 U.S. 106,
113 (1993); Ogden v. San Juan Cnty., 32 F.3d 452, 455 (10th Cir. 1994).
B.

28 U.S.C. § 2241
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 Comm’n, 115 F.3d 809, 811 (10th
Cir. 1997) (quoting Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)). “A motion pursuant
to § 2241 generally . . . [includes] such matters as the administration of parole,
computation of a prisoner's sentence by prison officials, prison disciplinary actions,
prison transfers, type of detention and prison conditions.” Hernandez v. Davis, No. 07-cv02406, 2008 WL 2955856, at *7 (D. Colo. July 30, 1998) (quoting Jiminian v.
Nash, 245 F.3d 144, 146 (2d Cir. 2001)). “A petition under 28 U.S.C. § 2241 attacks the
execution of a sentence rather than its validity and must be filed in the district where the
prisoner is confined.” Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). Here,
Applicant correctly filed the Application challenging the disciplinary hearing in the District
of Colorado, where he was incarcerated at the time of filing.

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III. ANALYSIS
The Magistrate Judge recommends that the Application for a Writ of Habeas
Corpus be denied and that Applicant’s case be dismissed with prejudice. (ECF No. 25.)
Applicant objects to the Recommendation in its entirety and reiterates arguments that he
made in previous filings with the Court. (ECF No. 26.) Because Applicant objects to the
Recommendation in its entirety, the Court will review the Recommendation de novo.
Applicant argues that the disciplinary proceedings in question violated his Fifth
Amendment right to due process because: (1) the DHO’s finding was not supported by
sufficient evidence; (2) the DHO improperly relied on false evidence; (3) the DHO failed to
consider Applicant’s statement; and (4) the sanction of loss of 40 days of good conduct
time credit was improper. (ECF No. 26.)
After thoroughly reviewing the April 2, 2012 Recommendation, the Court agrees
with the Magistrate Judge that the Application for a Writ of Habeas Corpus be should
denied and that Applicant’s case should be dismissed with prejudice.
The Fifth Amendment’s Due Process Clause provides certain minimum protections
for inmates facing the loss of good time credits as a disciplinary sanction. See Wolff v.
McDonnell, 418 U.S. 539 (1974). An inmate facing disciplinary sanctions 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 fact finder of the evidence
relied upon 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).

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In order to support the loss of good time credits, “the requirements of due process
are satisfied if some evidence supports the decision by the prison disciplinary board to
revoke good time credits.” Hill, 472 U.S. at 455. This standard of proof is not demanding
because “[a]scertaining whether this standard is satisfied does not require examination of
the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is
whether there is any evidence in the record that could support the conclusion reached by
the disciplinary board.” Id. at 455-56. Due process “does not require evidence that
logically precludes any conclusion but the one reached by the disciplinary board.” Id. at
457. Instead, a disciplinary finding can be upheld on even “meager” evidence, as long as
“the record is not devoid of evidence that the findings of the disciplinary board were
without support or otherwise arbitrary.” Id.
In the instant case, after thoroughly reviewing the Recommendation and
considering the evidence in the record, the Court agrees with the Magistrate Judge that
the DHO’s decision meets the requirements of due process because it was supported by
sufficient evidence. (ECF No. 25 at 7) (citing Hill, 472 U.S. at 456).1 Similarly, Applicant’s
argument that the DHO allegedly relied on “false evidence” is unavailing, and the record
indicates that the DHO considered Applicant’s statement describing his version of the
facts, and rejected it. (Id. at 8, 9.)
Further, the maximum penalties that Applicant could face for a violation such as the
one described above include: “[f]orfeit[ure of] earned statutory good time or non-vested
good conduct time (up to 100%) . . . [and/or] [d]isallow[ance of] ordinarily between 50 and

1

Such evidence includes the written statement of a correctional officer, Applicant’s
Quarters History Assignment, and the statement of another inmate. (Id.)

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75% (27-41 days) of good conduct time available for year.” 28 C.F.R. § 541.13 tbl. 3.
Here, the DHO sentenced Applicant to 40 days forfeiture of non-vested good conduct time
and 40 days disallowance of good conduct time. Therefore, the DHO’s sentence is
permissible under 28 C.F.R. § 541.13, and Applicant is not entitled to relief on this claim.2
Accordingly, for the reasons described above, the Application for a Writ of Habeas
Corpus is denied and Applicant’s case is dismissed with prejudice.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Applicant’s Objection (ECF No. 26) to the Magistrate Judge’s April 2, 2012
Recommendation is OVERRULED and the Recommendation (ECF No. 25) is
ADOPTED in its entirety;

2.

The Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF
No. 1) is DENIED; and

3.

This case is hereby DISMISSED WITH PREJUDICE. Each party shall bear its own
costs.

2

Although Applicant argues that his administrative appeals were somehow
prejudiced because the sanction of 40 days forfeiture of non-vested good conduct time was not
included on the original DHO report, there is no evidence or indication that the result of his
administrative appeal would have been different if such information were included on the
original DHO report .

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Dated this 20th day of July, 2012.
BY THE COURT:

William J. Martínez
United States District Judge

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