Stine v. Berkebile

Filing 18

ORDER: 1 Application for Writ of Habeas Corpus filed by Mikeal Glenn Stine is DISMISSED WITH PREJUDICE. by Judge R. Brooke Jackson on 4/6/15. (jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson

Civil Action No. 14-cv-01829-RBJ
MIKEAL GLENN STINE,
Applicant,
v.
DAVID BERKEBILE, Warden, ADX,
Respondent.

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS
R. Brooke Jackson, District Judge
The matter before the Court is the Application for a Writ of Habeas Corpus Pursuant to
28 U.S.C. § 2241, ECF No. 1. On September 5, 2014, the Court entered an order that directed
Respondent to show cause why the Application should not be granted. Respondent filed a
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Response, ECF No. 16, and Applicant, through counsel, filed a Reply, ECF No. 17.

After reviewing the pertinent portions of the record in this case, including the
Application, Answer, and Reply, the Court concludes that the action should be dismissed.
I. BACKGROUND
Applicant is a prisoner in the custody of the Federal Bureau of Prisons (“BOP”). He
currently is incarcerated at the United States Penitentiary, ADMAX, in Florence, Colorado.

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Counsel entered an appearance on July 22, 2014, after Applicant had initiated the action and submitted
the 28 U.S.C. § 2241 Application. Counsel, on Applicant’s behalf, filed a Reply, ECF No. 10, to the
Preliminary Response and a Reply, ECF No. 17, to the Response to Show Cause.

Applicant is challenging the validity of a prison disciplinary conviction in Incident Report (IR)
No. 2561571 that resulted in a loss of good time credits and other sanctions.
The offense that precipitated the disciplinary charge in question occurred on March 13,
2014. Resp., Attach. 3, ECF No. 16-3, at 1. Applicant initially was charged with the
disciplinary charges of (1) Attempted Use of Mail for Abuses other than Criminal Activity
(296)(A); and (2) Possession of Anything not Authorized (305). Id. at 5. The disciplinary
hearing was held on June 3, 2014, and Applicant was found to have committed only the
attempted use of mail for abuses other than criminal activity. Id. at 1.
Based on Respondents’ failure to address Applicant’s denial of administrative remedy
appeal forms in the Preliminary Response, the Court excused Applicant’s failure to exhaust his
administrative remedies prior to filing this action, but denied the Application in part because the
claim for money damages and a finding that the BOP is impeding his right to prepare a defense in
his criminal case are improperly raised in a 28 U.S.C. § 2241 action. Sept. 5, 2014 Order, ECF
No. 15, at 2-3. The Court now will address the merits of Applicant’s claim that the evidence
relied on by the Disciplinary Hearing Officer (DHO) lacked the “some evidence” required to find
Applicant guilty of Offense 296 and that the disciplinary conviction should be expunged. The
Court also will determine the merits of the two additional claims that counsel has included in the
Reply: (1) denial of a requested witness; and (2) a delay in receipt of the DHO’s written
statement regarding the evidence relied on and the reasons for the disciplinary action.
II. DISCUSSION
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

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to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973); see also
McIntosh v. United States Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997). Habeas corpus
relief is warranted only if Applicant “is in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2241(c)(3).
“I]t 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. United States 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, “[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. Correctional Institution, Walpole v. Hill, 472 U.S. 445, 454 (1985) (citing
Wolff, 418 U.S. at 563-67). In addition, “revocation of good time does not comport with the
minimum requirements of procedural due process, unless the findings of the prison disciplinary
board are supported by some evidence in the record.” Id., at 565 (internal citation and quotation
marks omitted). Review under the some evidence standard “does not require examination of the
entire record, independent assessment of the credibility of witnesses, or weighing of the

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evidence.” Howard, 487 F.3d at 812 (quoting Hill, 472 U.S. at 455). “A disciplinary board’s
decision can be upheld . . . even if the evidence supporting the decision is meager.” Id. (internal
quotations marks omitted).
Respondent asserts that Applicant received all the process he was due in his disciplinary
proceeding because he received advance written notice of the DHO hearing twenty-four hours
prior to the hearing, was provided the opportunity to call witnesses and present documentary
evidence at the hearing, and received written notice of the findings and conclusions from the
DHO. ECF No. 16 at 6. Respondents further assert that the evidence in the record before the
DHO exceeded the some evidence standard. Id.
Applicant, in the November 3, 2014 Reply, argues that the IR reflects a “biased Bureau of
Prison’s employee’s incorrect interpretation of what constitutes a violation of code 296.” ECF
No. 17 at 2. Applicant also argues that the documents Applicant possessed were sent to him by
his attorney because they are relevant to his attorney’s representation in Applicant’s criminal
case. Id. at 3. Applicant further contends that the DHO failed to investigate his claims that the
documents were relevant to his criminal case and that federal District Judge Christine M.
Arguello, if called as a witness, would confirm the relevance. Id. at 4. Finally, Applicant
asserts he testified that the documents were relevant to affirmative defenses, including the
“defense of lesser evils,” the documents were public records, and both the inmate, who’s identity
is redacted, and his attorney refute Respondent’s contention that there is some evidence. Id. at
4-5. Applicant contends the DHO found him guilty of Code No. 297 in the DHO report, id. at
5-6, which apparently Applicant references because the DHO, as is discussed below in this Order
in Footnote No. 2, inadvertently referred to Code 297. But in any event, Applicant argues he did

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not violate Code No. 296. Id. Finally, Applicant argues that his due process rights were
violated because he was unable to call all of the witnesses he identified, he did not receive
written findings and conclusions from the DHO until three months after the hearing, and there is
no evidence that he violated either Code No. 296 or Code No. 297. Id. at 6-8.
In IR No. 2561571, DHO found as follows:
The DHO reviewed the inmate’s rights with the inmate during the hearing. The
inmate confirmed he understood his rights. The inmate confirmed that he did
want a staff representative and witness. The DHO noted that your incident report
was served outside the ordinary 24 hour timeframe due to being re-written and
administrative error. The DHO asked if the delay hampered you in preparing
your defense before the DHO or if you needed additional time to prepare and you
said, “no.” The inmate provided no documentary evidence to dispute the report.
According to the incident report writer, you asked to make legal copies regarding
a civil case. In these copies you requested other inmate’s case information,
which you are not allowed to have other inmate’s information.
At the DHO hearing you denied committing the offense as outlined in section # 1
of the incident report. You did admit to having [redacted name of other inmate]
paperwork which you said your lawyer (Mr. Moya) gave you and told you to make
copies of the documents and that [redacted name] asked you to assist him in his
legal matters.
You also claimed your due process rights were violated as you were not served
within 24 hours. You stated that you were served 26 hours and 22 minutes so
your infraction must be dismissed. The DHO explained a second time that your
delay was due to a re-write and administrative errors and you were asked before
the hearing began if those delays hampered you in preparing your defense or if
you needed additional time to prepare and you said, “no.” You claimed that
under Wolff v. McDonnell you had to be served within that required timeframe.
The DHO explained that the verbiage is not must be served but “ordinarily
served” which means if the delays can be a justifiable one (as a re-write and
administrative error are considered).
You referred to the letter from your lawyer which states your case number USA v.
Stine 13-CR-00492-CMA-but the information is regarding another inmate’s case
not yours and of an extremely security sensitive nature. You also claimed at the
DHO hearing you [sic] lawyer told you to make copies of these documents which

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contained serious security matters. Your staff rep contact [sic] you [sic] Mr.
Moya who said he did not recall telling you to make copies of the paperwork sent.
Finally you site a case whereby inmates can assist each other-but your witness
[redacted] states he never ask [sic] you to assist in his legal matters according to
the interview with your staff representative. As [redacted] stated this [sic] it was
not necessary to contact Judge Arguello (as she is handling you [sic] civil issue
and has nothing to do with the matter at hand), therefore the DHO did not find it
necessary to contact the Judge as she would not have direct knowledge of this
infraction.
Based on you [sic] admission that you did have another’s legal work unauthorized
and the report writer’s statement in section #11 of your incident report which you
confirmed that you did have another’s (highly security sensitive) paperwork and
were requesting staff to make copies, along with the inconsistencies in your story
such as you claiming your lawyer told you to make copies (yet staff rep confirmed
that did not recall telling you to do so), stating [redacted] requested your legal
assistance (you [sic] he states he never do so) these co [sic] against you in the
greater weight of evidence. Therefore, the DHO found that you committed the
prohibited act of use of the mail for abuses other than criminal activity, Code
297. 2
Resp., ECF No. 16-3, Attach. 3 at 3. The Court will address the issues below.
1. Some Evidence
As stated above, to comport with due process, there must be some evidence to support a
disciplinary conviction. Hill, 472 U.S. at 454. Review under the some evidence standard “does
not require examination of the entire record, independent assessment of the credibility of
witnesses, or weighing of the evidence.” Howard, 487 F.3d at 812 (quoting Hill, 424 U.S. at
455). The relevant question is whether there is any evidence in the record that could support the
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On page one of the DHO Report in IR No. 2561571, the Offense Charges against Applicant are noted
as Code Nos. 296 and 305. Code No. 296 is identified as “Attempted use of mail for abuses other than
criminal activity.” The DHO’s finding is that Applicant “committed the prohibited act of use of the mail
for abuses other than criminal activity.” The Court has reviewed the BOP Program Statement 5270.09,
Table I., Prohibited Act 296 (28 C.F.R. § 541.8(g). The Prohibited Act 296 is described as “Use of the
mail other than criminal activity which circumvent mail monitoring procedures.” Given the correct
identity on the first page of the report and correct description of the infraction, the DHO inadvertently
referred to Prohibited Act No. 297 in the last paragraph of his report.

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conclusion reached by the disciplinary board.” Id. at 455-56. A disciplinary board’s decision
can be upheld by a reviewing court “even if the evidence supporting the decision is ‘meager.’ ”
Mitchell, 80 F.3d at 1445 (10th Cir. 1996) (quoting Hill, 472 U.S. at 457).
The first issue raised by Applicant is that Code 296 was misinterpreted by BOP
employees. Applicant also contends that the documents he requested BOP staff to copy are
public record and were provided to him by his attorney because they are relevant to the criminal
case in which his attorney is representing him. Applicant further contends that he did not use
the mail to commit a “High category act, write a letter in code, direct others to send, send, or
receive a letter or mail through unauthorized means; send mail for other inmates without
authorization, or send any correspondence at all.”
Prison regulations, such a 28 C.F.R. § 541.8(g), are “primarily designed to guide
correctional officials in the administration of a prison. [They are] not designed to confer rights
on inmates. . . .” Sandin v. Conner, 515 U.S. 472, 481-82 (1995). “[P]rovided an agency’s
interpretation of its own regulations does not violate the Constitution or a federal statute, it must
be given ‘controlling weight unless it is plainly erroneous or inconsistent with the regulation.’ ”
Stinson v. United States, 508 U.S. at 45 (1993) (quoting Bowles v. Seminole Rock & Sand Co.,
325 U.S. 410, 414 (1945).
Applicant does not deny he had the documents, which are copies of the docket and filings
in Case No. 14-cv-00401-MSK-MJW, a case concerning another inmate. Also, the inmate, who
is the plaintiff in Case No. 14-cv-00401-MSK-MJW, denied that he had requested Applicant to
assist him in this case, which is contrary to Applicant’s first argument to the DHO that he can not
be prohibited from helping another inmate, see ECF No. 16-3 at 10 and 12, and his statement

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during the DHO hearing that the inmate, who is the plaintiff in Case No.
14-cv-00401-MSK-MJW, had asked Applicant to assist him in this case, Id. at 3. Furthermore,
the staff representative contacted Applicant’s attorney, who stated that he did not recall telling
Applicant to make copies of the filings in Case No. 14-cv-00401-MSK-MJW. ECF No. 16-3 at
3.
The Court, therefore, finds the DHO’s determination that Applicant violated Code 296
because he received another inmate’s civil case filings through the mail and requested additional
copies of the filings is a reasonable finding in this case that some evidence existed to find
Applicant used the mail for abuses other than criminal activity in violation of Code 296.
Applicant’s due process rights, therefore, were not violated.
2. Denial of Witnesses
“Prisoners have only a qualified right to call witnesses, and prison officials may evaluate
a request for witnesses and refuse to provide them for various reasons.” See Freeman v.
Carroll, 506 F. App’x 694, 706 (10th Cir. 2012) (citing Wolff, 418 U.S. at 566). “The scope of a
prisoner’s right to call and confront witnesses is committed to the sound discretion of prison
officials.” Ramer v. Kerby, 936 F.2d 1102, 1104 (10th Cir. 1991). “The prisoner’s request [for
a witness] should also be denied if officials affirmatively determine the . . . testimony would be
irrelevant, cumulative, or otherwise unnecessary for the committee to come to a fair resolution of
the matter.” Id. “Prison officials are not required to make a written record of the reasons for
granting or denying a prisoner’s request to call or confront a particular witness.” Id. (citing
Wolff, 418 U.S. at 566). “[E]rrors made by prison officials in denying witness testimony at
official hearings are subject to harmless error review.” Howard, 487 F.3d at 813 (quotation

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omitted). Moreover, an inmate cannot maintain a due process claim for failure to permit witness
testimony or documentary evidence unless he shows that the testimony “ ‘would have affected
the outcome of his case.’ ” Grossman v. Bruce, 447 F.3d 801, 805 (10th Cir. 2006) (quoting
Chesson v. Jaquez, 986 F.2d 363, 366 (10th Cir. 1993)).
Applicant, through counsel in the November 3, 2014 Reply, contends that the DHO
refused to call District Judge Christine M. Arguello, who Applicant identified as a witness, even
though she had knowledge that the filings from Case No. 14-cv-00401-MSK were related to
claims and defenses in Applicant’s criminal case. ECF No. 17 at 4. Judge Arguello’s possible
knowledge of the relationship of the filings in the civil case to Applicant’s criminal case is highly
speculative and does not invalidate the evidence that Applicant possessed the filings in Case No.
14-cv-00401-MSK-MJW, the plaintiff in Case No. 14-cv-00401 had not asked Applicant to
assist him in this case, Applicant requested copies of Case No. 14-cv-00401, and Applicant’s
attorney did not recall telling Applicant to have copies made of the filings that he had mailed to
Applicant. Nothing Applicant asserts shows Judge Arguello’s testimony would have affected
the outcome of Applicant’s disciplinary action. The DHO’s refusal to call Judge Arguello as a
witness did not violate Applicant’s due process rights.
3. Delay DHO Written Findings and Conclusions
Prisoners have a constitutional right to “a written statement by the factfinders as to the
evidence relied on and the reasons for the disciplinary action.” Wolff, 418 U.S. at 564 (quotation
omitted). The purposes of the written finding are “to insure adequate review of the proceedings,
to protect the inmate against collateral consequences, and to guarantee that officials, faced with
outside scrutiny, will act fairly.” Smith v. Maschner, 899 F.2d 940, 946 (10th Cir. 1990).

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Applicant, through counsel in the November 3, 2014 Reply, asserts that the DHO Report
is dated more than a month after the hearing. ECF No. 17 at 7. Applicant contends that such a
delay raises serious concerns about the accuracy of the report and the conclusions drawn. Id.
Finally, Applicant contends that he did not receive the report until another two months after the
record was created, which he argues, at that point, the delay had violated his due process rights.
Id. at 7-8.
If a DHO’s written statement is to assist in a review of the disciplinary conclusion, it
seems reasonable and logical that a copy of the statement would be provided to an inmate prior to
the review or appeal, but nothing in Wolff prescribes a time limit as to when factfinders must
provide a statement to an inmate as to the evidence relied on and the reasons for the disciplinary
action. Applicant does not state a hardship or how he was prejudiced by the one month delay in
the DHO writing the report and the two months delay in receiving the report.
Because there is not a prescribed time limitation set forth in Wolff for providing the
written statement, Applicant does not have a per se due process right to receive a statement of the
evidence relied on or reasons for the disciplinary action within a certain time period.
Applicant’s contention that the delay in authoring the report raises “serious concerns about the
accuracy of the report” is conclusory and vague and fails to demonstrate Applicant was
prejudiced by the one month delay in the authoring of the report. ECF No. 17 at 7. Applicant
provides no specific basis for finding prejudice.
Applicant also fails to assert how his due process rights were violated by September 3
when he had not received the report, other than possibly BOP staff had thwarted his attempts to
exhaust his administrative remedies based on Little v. Jones, 607 F.3d 1245, 1250 (10th Cir.

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2010). This claim, nonetheless, would be moot because the Court excused the exhaustion
requirement and elected to proceed to address the merits of Applicant’s claims.
Applicant concedes he received a written statement of the evidence relied on and the
reasons for the disciplinary action in compliance with the Wolff requirements. In that Wolff fails
to identify a time limit for providing the written statement to Applicant and Applicant fails to
demonstrate he was prejudiced by the delay in his receipt of the written statement of the evidence
relied on and the reasons for the disciplinary action, Applicant’s due process rights were not
violated.
III. CONCLUSION
Based on the above findings, Applicant’s claims lack merit and the 28 U.S.C.
§ 2241 Application must be dismissed.

IV. ORDERS
Accordingly, it
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. §
2241, ECF No. 1, is DISMISSED WITH PREJUDICE. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order is not
taken in good faith, and, therefore, in forma pauperis status is denied for the purpose of appeal.
See Coppedge v. United States, 369 U.S. 438 (1962). If Applicant files a notice of appeal he
must also pay the full $505 appellate filing fee or file a motion to proceed in forma pauperis in
the United States Court of Appeals for the Tenth Circuit within thirty days in accordance with
Fed. R. App. P. 24.

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DATED April 6, 2015.
BY THE COURT:

R. Brooke Jackson
United States District Judge

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