Buhl v. Berkebile
Filing
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ORDER on Application for Writ of Habeas Corpus. Order denying 31 Motion to Compel. ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1) is DENIED and this case is DISMISSED WITH PREJUDICE by Judge Wiley Y. Daniel on 09/24/13.(jjhsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Case No. 12-cv-02953-WYD
LEROY BUHL,
Applicant,
v.
D. BERKEBILE, Warden,
Respondent.
ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS
This matter is before me on the Application for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2241 (ECF No. 1) (“the Application”) filed pro se by Applicant, Leroy
Buhl. The Application includes a supporting memorandum. (See ECF No. 1-1.) On
February 6, 2013, Respondent was ordered to show cause why the Application should
not be granted. Respondent has filed a Response to Order to Show Cause (“the
Response”) (ECF No. 25) and Mr. Buhl has filed a Reply to Response to Order to Show
Cause (“the Reply”) (ECF No. 27). After reviewing the pertinent portions of the record in
this case, including the Application, the Response, and the Reply, the Court concludes
that the Application should be denied.
I.
Background
Mr. Buhl is a prisoner in the custody of the United States Bureau of Prisons
(BOP) at the United States Penitentiary, Administrative Maximum, in Florence,
Colorado. Mr. Buhl filed this action challenging the validity of a prison disciplinary
conviction. According to Mr. Buhl, he was attacked by two inmates with knives on May
18, 2012, and, during the course of the attack, he managed to disarm one of the
inmates and chase the other inmate away. Mr. Buhl contends that on June 1, 2012, he
received an incident report charging him with possession of a weapon based on his
possession of the knife he took from one of the assailants. Mr. Buhl asserts that he
gave the knife to prison authorities immediately after the attack ended.
On July 9, 2012, Mr. Buhl appeared before a discipline hearing officer (DHO)
who postponed the proceedings pending appointment of a staff representative.
Following a DHO hearing on July 18, 2012, Mr. Buhl was convicted of the disciplinary
offense and he was sanctioned with disciplinary segregation and the loss of telephone
and commissary privileges for sixty days. (See ECF No. 25-1 at 11.) The disciplinary
sanctions did not include a loss of good time credits. Mr. Buhl asserts that he was not
allowed to appear at the July 18 hearing and that he did not receive a copy of the
written report from the DHO following the hearing. Respondent has submitted a copy of
the DHO report with the Response. (See ECF No. 25-1 at 8-11.)
Mr. Buhl maintains that he did not file an administrative appeal immediately
following the July 18 hearing because he could not file an appeal without a copy of the
DHO report. Mr. Buhl alleges in subsequent filings that he finally received a copy of the
DHO report on February 8, 2013. (See ECF Nos. 24, 29, & 31.) Mr. Buhl further
alleges that on February 14, 2013, he filed an administrative appeal of the disciplinary
conviction he is challenging in this action. (See ECF No. 31 at 1.) On April 17, 2013,
the BOP Regional Director remanded the disciplinary matter to the DHO for
reconsideration because of an unspecified procedural error. (See ECF No. 31 at 4.)
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I have not been advised by either party whether any additional proceedings have taken
place following the remand.
Mr. Buhl asserts two claims for relief in the Application. He first claims that his
constitutional right to due process was violated because the incident report he received
on June 1, 2012, was issued more than two weeks after the alleged incident in violation
of BOP rules. Mr. Buhl also alleges within his first claim that he was denied due
process because he was denied a staff representative and he was excluded from the
DHO hearing on July 18, 2012. Mr. Buhl alleges in his second claim that he was denied
his right to file an administrative appeal because he did not receive a copy of the DHO
report necessary to file an appeal.
II.
Standards of Review
The Court must construe the Application and the Reply liberally because
Mr. Buhl 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). However,
the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
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. Buhl “is in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2241(c)(3).
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III.
Discussion
A. Claim 1
As noted above, Mr. Buhl first claims he was denied due process because the
incident report he received on June 1, 2012, was issued more than two weeks after the
alleged incident in violation of BOP rules. Mr. Buhl also alleges within his first claim that
he was denied due process because he was denied a staff representative and he was
excluded from the DHO hearing on July 18, 2012.
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). If a protected liberty interest is implicated,
procedural due process requires that a prison inmate facing disciplinary charges be
provided:
(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 v. Hill, 472 U.S. 445, 454 (1985) (citing Wolff, 418 U.S. at 563-67). In
addition, procedural due process requires that “the findings of the prison disciplinary
board are supported by some evidence in the record.” Id. (internal citation and
quotation marks omitted).
Mr. Buhl’s first claim lacks merit because he was not deprived of a
constitutionally protected liberty interest. As noted above, Mr. Buhl does not allege that
he was sanctioned with a loss of good time credits and I find that the sanctions actually
imposed, disciplinary segregation and a loss of telephone and commissary privileges for
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sixty days, do not implicate a constitutionally protected liberty interest. See Muhammad
v. Finley, 74 F. App’x 847, 849 (10th Cir. 2003) (agreeing that due process claim
challenging disciplinary conviction was legally frivolous because inmate “lacked a liberty
interest in being free from disciplinary segregation and commissary restrictions.”).
Mr. Buhl’s argument that he was deprived of a constitutionally protected liberty interest
because he was removed from a step-down program following his disciplinary
conviction lacks merit because, even assuming removal from the step-down program
implicates a constitutionally protected liberty interest, he does not allege that he was
removed from the step-down program as a disciplinary sanction.
Furthermore, even if the actual sanctions of disciplinary segregation and loss of
telephone and commissary privileges that were imposed as a result of the disciplinary
conviction Mr. Buhl is challenging did implicate a constitutionally protected liberty
interest, claim one still lacks merit. Mr. Buhl’s primary contention, that he received
notice of the charges against him more than two weeks after the alleged incident in
violation of BOP rules, does not state a constitutional claim because he does not allege
he was denied any of the process required under Wolff. There is no dispute that
Mr. Buhl received advance written notice of the charges as required under Wolff.
Mr. Buhl’s allegations that he was denied a staff representative and that he was
excluded from the disciplinary hearing on July 18 also do not demonstrate he is entitled
to relief because those allegations are not supported by the record before me. The
DHO report indicates that a staff representative appeared at the July 18 hearing on
Mr. Buhl’s behalf. (See ECF No. 25-1 at 8.) Although Mr. Buhl did not appear at the
disciplinary hearing on July 18, the DHO report indicates that Mr. Buhl’s absence
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resulted from his refusal to appear and not because he was excluded from the hearing.
(See id. at 8, 18.) Therefore, I find that Mr. Buhl is not entitled to relief with respect to
claim one.
B. Claim 2
Mr. Bull contends in his second claim that he was denied his right to file an
administrative appeal because he did not receive a copy of the DHO report necessary
to file an appeal. I construe this claim liberally as a constitutional due process claim.
As noted above, if a constitutionally protected liberty interest was implicated, Mr. Buhl
was entitled to “a written statement by the factfinder of the evidence relied on and the
reasons for the disciplinary action.” See Hill, 472 U.S. at 454. However, because the
sanctions imposed on Mr. Buhl as a result of the disciplinary conviction he is challenging
do not implicate a constitutionally protected liberty interest for the reasons discussed
above in claim one, claim two also lacks merit. In addition, although not discussed by
the parties, Mr. Buhl concedes that he eventually received a copy of the DHO report
and that he filed an administrative appeal that resulted in the disciplinary matter being
remanded to the DHO for reconsideration. As a result, I find that Mr. Buhl also is not
entitled to relief on his second claim.
IV.
Conclusion
In summary, the Court finds that Mr. Buhl is not entitled to any relief and the
Application will be denied. Accordingly, it is
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ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241 (ECF No. 1) is DENIED and this case is DISMISSED WITH PREJUDICE.
It is
FURTHER ORDERED that Applicant’s Motion to Compel Respondent to
Expunge Incident Report and to Transfer Petitioner (ECF No. 31) is DENIED.
Dated: September 24, 2013
BY THE COURT:
s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge
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