Buhl v. Berkebile

Filing 24

ORDER by Judge Philip A. Brimmer on 5/27/15. ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 [Docket No. 1] is denied and this case is dismissed with prejudice. (kpreu)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 14-cv-02029-PAB
LEROY BUHL,
Applicant,
v.
D. BERKEBILE, Warden,
Respondent.

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

This matter is before the Court on the Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 [Docket No. 1] (“the Application”) f iled pro se by Applicant
Leroy Buhl. The Application included a Memorandum in Support of Habeas Corpus
Relief [Docket No. 1 at 4-5]. On August 18, 2014, 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”) [Docket No. No. 17], and Mr. Buhl has f iled a
Reply (which he titled an “Answer”) to Response to Order to Show Cause (“the Reply”)
[Docket No. 22]. 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. RELEVANT FACTUAL AND PROCEDURAL HISTORY
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 did not receive a copy of the
incident report within the ordinary 24-hour time frame due to FBI referral. The FBI
declined prosecution on June 1, 2012, and Mr. Buhl w as issued a copy of the
incident report that same day. The report charged 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 was sanctioned with disciplinary segregation and the loss of telephone and
commissary privileges for sixty days. The disciplinary sanctions did not include a loss
of good time credits. Mr. Buhl asserted 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.
On November 9, 2012, Mr. Buhl filed an action in this court seeking relief in Buhl
v. Berkebile, Civil Action No. 12-cv-02953-WYD.1 Mr. Buhl received a copy of the DHO
report on February 8, 2013 [Docket No. 17-1 at 16]. On February 14, 2013, he filed an

This Court may take judicial notice of its own records and files that are part of
the Court’s public records. St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp.,
605 F.2d 1169, 1172 (10th Cir. 1979).
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administrative appeal of the disciplinary conviction. On April 17, 2013, the BOP
Regional Director remanded the disciplinary matter to the DHO for reconsideration
because of an unspecified procedural error [Docket No. 17-1 at 31].
On September 24, 2013, this Court denied Mr. Buhl’s pending application for
federal habeas corpus relief in case number 12-cv-02953-WYD. Mr. Buhl filed a timely
appeal to the Court of Appeals for the Tenth Circuit.
A different DHO conducted a rehearing on the incident report on December 9,
2013. Applicant received a notice of the DHO hearing and a written notice of his rights
on October 10, 2013 [Docket No. No. 17-1 at 34], and he req uested and was appointed
a staff representative. Three witnesses made statements that were considered during
the December 9, 2013 rehearing. Although Applicant refused to appear at the
rehearing, the DHO considered his written statement. At the conclusion of the
rehearing, the DHO upheld the finding that Applicant committed the prohibited act of
possession of a weapon, as charged. The DHO sustained the sanctions previously
imposed, which Applicant already had served [Docket No. 17-1 at 39]. As support for
his findings and conclusion, the DHO relied on the incident report, photog raphs,
memoranda from BOP staff, a video of the incident, Applicant’s written statements, and
the statements of witnesses [Docket No. 17-1 at 37-38]. Applicant received a copy of
the DHO’s report on January 2, 2014 and was notified of his right to appeal through the
Administrative Remedy Program.
On May 21, 2014, the Court of Appeals for the Tenth Circuit dismissed
Applicant’s appeal in case number 12-cv-02953-WYD as moot after the DHO issued a
new report following the rehearing on December 9, 2013. The court further stated that
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Mr. Buhl could file a new application for habeas relief after he had exhausted the
available administrative remedies as to the new disciplinary order.
On July 22, 2014, Mr. Buhl filed the instant action by filing an Application for a
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 [Docket No. 1]. His sole claim is
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 regulations.
II. STANDARD 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
As noted above, Mr. Buhl claims that 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 regulations set forth in 28 C.F.R. Part 541. In this
regard, 28 C.F.R. § 541.5(a) provides as follows.
a) Incident report. The discipline process starts when staff witness or
reasonably believe that you committed a prohibited act. A staff member
will issue you an incident report describing the incident and the prohibited
act(s) you are charged with committing. You will ordinarily receive the
incident report within 24 hours of staff becoming aware of your
involvement in the incident.
As explained to Applicant in his earlier proceeding in this Court, he has failed to show
that he is entitled to habeas corpus relief.
A. Availability of Habeas Corpus Relief
The purpose of the writ of habeas corpus is to test the legality of a prisoner’s
detention. Heck v. Humphrey, 512 U.S. 477 (1994); Allen v. McCurray, 449 U.S. 90,
101 (1980) (the unique purpose of habeas corpus is to release the petitioner from
unlawful confinement); Wolff v. McDonnell, 418 U.S. 539 (1974) (basic purpose of the
writ is to enable those unlawfully incarcerated to obtain their freedom). The remedy is
to free an inmate from unlawful custody. Preiser v. Rodriguez, 411 U.S. 475 (1973). If
the prisoner is not challenging the validity of his conviction or the length of his detention,
such as loss of good time, then a writ of habeas corpus is not the proper remedy.
Preiser, 411 U.S. at 499. See also Wilkinson v. Dotson, 544 U.S. 74, 81 (2005)
(emphasizing that inmates should “use only habeas corpus . . . remedies when they
seek to invalidate the duration of their confinement – either directly through an
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injunction compelling speedier release or indirectly through a judicial determination that
necessarily implies the unlawfulness of the [sovereign’s] custody”) (emphasis in
original).
A request by a federal prisoner for a change in the place of confinement is
properly construed as a challenge to the conditions of confinement and, thus, must be
brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). See United States v. Garcia, 470 F.3d 1001, 1003
(10th Cir. 2006). Here, as explained more fully below, Applicant’s due process claim
does not affect the fact or duration of his custody. In other words, success on his due
process challenge (and the expungement of the incident report) would not entitle him to
speedier release from prison. Applicant must seek this remedy, if at all, in a civil rights
action for injunctive relief against government officials. Simmat v. U.S. Bureau of
Prisons, 413 F.3d 1225, 1231-32, 1236 (10th Cir. 2005) (holding that a federal prisoner
may bring a civil action related to his conditions of confinement and seeking injunctive
relief against federal officials). Because the Court lacks jurisdiction under 28 U.S.C.
§ 2241, the Court must deny the application.
B. Due Process
Moreover, Mr. Buhl is not entitled to any relief, regardless of the type of
proceeding before the Court, because he has failed to show any violation of his due
process rights.
The 5th Amendment protects federal prisoners against the deprivation of liberty
or property without due process of law. To sufficiently plead a due process claim, Mr.

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Buhl must allege facts showing: 1) that he was deprived of a liberty or property interest;
and 2) that the procedures required prior to such a deprivation were not properly
observed. Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (“those who seek to invoke
[the due process clause’s] procedural protection must establish that one of these
interests is at stake”). Mr. Buhl does not allege that he was deprived of property as a
result of his disciplinary conviction, and thus, the question is whether he was deprived
of any liberty interest.
Liberty interests arise either from the Constitution itself, by reason of guarantees
implicit in the word liberty or they “may arise from an expectation or interest created by
laws or policies.” Wilkinson, 545 U.S. at 221. Courts have been reluctant to derive
liberty interests wholesale from the Constitution, noting that the fact of an inmate’s
conviction gives rise to a range of custody options that the state might lawfully impose.
Meachum v. Fano, 427 U.S. 215, 225 (1976). Courts formerly recognized liberty
interests in conditions of prison confinement created by mandatory language set forth in
state or federal policies or regulations, but that approach was abandoned by the
Supreme Court in Sandin v. Connor, 515 U.S. 472, 483-84 (1995). The current
standard requires an inmate claiming a liberty interest in conditions of confinement to
show that the challenged conditions “impose atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.” Id.; Wilkinson, 545 U.S. at
222-23 (“the touchstone of the inquiry into the existence of a protected, state-created
liberty interest in avoiding restrictive conditions of confinement is not the language of
regulations regarding those conditions but the nature of those conditions themselves in
relation to the ordinary incidents of prison life”). In short, to show that his disciplinary
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conviction resulted in the deprivation of a liberty interest, Mr. Buhl must plead facts
showing that the punishments imposed for that conviction created conditions of
confinement that are “atypical and significant hardships” compared to ordinary prison
life. He has not done so.
Mr. Buhl’s disciplinary conviction resulted in disciplinary segregation for sixty
days, loss of phone and commissary for sixty days, and in his not being able to transfer
out of administrative security segregation as quickly due to the infraction now on his
record. None of these punishments imposes “atypical and significant” hardships. See
e.g., Muhammad v. Hood, 100 F. App’x 782, 783 (10th Cir. 2004) (expulsion of inmate
from ADX step-down program does not give rise to liberty interest); Muhammad v.
Finley, 74 F. App’x 847, 849 (10th Cir. 2003) (disciplinary segregation and loss of
commissary privileges does not give rise to liberty interest); Moore v. Pernberton, 110
F.3d 22, 23 (7th Cir. 1997) (holding that loss of commissary privileges does not amount
to loss of liberty or property sufficient to trigger due process protections). Accordingly,
Mr. Buhl has failed to state a cognizable due process claim based on his disciplinary
conviction.
Moreover, Mr. Buhl fails to show a liberty interest due to BOP’s alleged failure to
have complied with 28 C.F.R. § 541.5(a). In pertinent part, this regulation provides:
“You will ordinarily receive the incident report within 24 hours of staff becoming aware
of your involvement in the incident.” Inclusion of ‘ordinarily’ as a modifier for ‘provided
within 24 hours’ provides flexibility that is often important in the prison context where
investigation of suspicious activity may be required to define the scope of the activity
and to identify all participants. There is no U.S. Supreme Court or Tenth Circuit
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decision holding that the word “ordinarily” in a statute or regulation can be read as
establishing a mandatory requirement. Indeed, the Tenth Circuit has held the opposite:
Mendoza also contends he was denied due process because the
BOP failed to abide by its own time limits. Specifically, he claims prison
officials were required to provide notice of his violation within 24 hours of
discovering it. See 28 C.F.R. § 541.5(a). This claim, however, does not
withstand a plain reading of the regulation. Section 541.5(a) is advisory,
providing that written charges “ordinarily” should be given within a day,
and the flexible language may very well have been designed to
accommodate a situation like this, where the BOP had a strong suspicion
of a violation but wanted confirmation from a lab and the inmate’s medical
records before filing an official charge.
Mendoza v. Tamez, 451 F. App’x 715, 717 (10th Cir. 2011) (unpublished). This is
consistent with every other circuit court that has addressed this issue. See, e.g.,
Valdez v. Adler, 518 F. App’x 563, 564 (9th Cir. 2013); Wallace v. Federal Detention
Center, 528 F. App’x 160 (3d Cir. 2013); Saenz-Lopez v. BOP, 221 F.3d 1339 (7th Cir.
2000). Thus, Mr. Buhl has failed to show that BOP failed to follow 28 C.F.R. § 541.5(a).
Even if 28 C.F.R. § 541.5(a) did impose an unconditional obligation on prisons to
provide an incident report to a prisoner within 24 hours of staff becoming aware of that
prisoner’s alleged involvement, it would be of no avail to Mr. Buhl because the Supreme
Court and the Tenth Circuit never have held that constitutional due process requires
prisons to provide the procedures and timelines set forth in this regulation.
In this regard, federal and state regulations in and of themselves do not create a
liberty interest in that procedure. See, e.g., Hewitt v. Helms, 459 U.S. at 471 (mere fact
of careful procedural structure to regulate use of administrative segregation does not
indicate existence of protected liberty interest); McLaurin v. Morton, 48 F.3d 944, 947
(6th Cir. 1995) (mere procedures do not create any substantive liberty interest, even
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when phrased in mandatory language); Jurasek v. Utah State Hosp., 158 F.3d 506, 515
(10th Cir. 1998) (holding that the “mere existence of a state regulatory scheme,
however, does not mean the state has forged a liberty interest.”); Culbert v. Young, 834
F.2d 624, 628 (7th Cir. 1987) (the adoption of mere procedural guidelines does not give
rise to a liberty interest), cert. denied, 485 U.S. 990 (1988). Thus, violations of statutes,
rules or regulations that require certain procedures which are not compelled by the
Federal Constitution do not make out a constitutional claim. To put it another way, BOP
regulations can provide more protection than the Constitution requires, but the
regulations do not raise the standard of constitutional due process. Consequently,
failure to follow BOP regulations does not, in and of itself, result in a violation of due
process.
The BOP regulations set forth in 28 C.F.R. Part 541 were promulgated in part to
satisfy the requirements set forth in Wolff v. McDonnell, 418 U.S. 539, 555-57 (1974),
where the Supreme Court held that prisoners had a liberty interest in receiving good
time credits that could not be deprived in a prison disciplinary proceeding without
procedural due process protections. Notwithstanding, the Court held that 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, 418 U.S. at 556. If
a protected liberty interest is implicated, procedural due process requires that a prison
inmate facing disciplinary charges be provided: 1) the right to appear before an
impartial decision-making body; 2) twenty-four hour advance written notice of the
charges; 3) an opportunity to call witnesses and present documentary evidence,
provided the presentation of such does not threaten institutional security or correctional
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goals; 4) assistance from an inmate representative, if the charged inmate is illiterate or
if the complexity of the issue makes it unlikely that the inmate will be able to collect and
present the evidence necessary for an adequate comprehension of the case; and 5) a
written decision by the fact finders as to the evidence relied upon and the rationale
behind their disciplinary action. Id. at 563-71. In addition, procedural due process
requires that “the findings of the prison disciplinary board are supported by some
evidence in the record.” Superintendent v. Hill, 472 U.S. 445, 454 (1985) (internal
citation and quotation marks omitted).
Even when faced with a protected liberty interest, courts have concluded that
BOP’s failure to present an inmate with charges within 24 hours of the conduct does not
violate an inmate’s due process rights. See, e.g., Wallace v. Federal Detention Center,
528 F. App’x 160 (3d Cir. 2013) (holding that two month delay did not violate due
process because Wolff did not require issuance of the charge within 24 hours of the
incident or a hearing within three days of the alleged conduct; Wolff only required
inmate to receive written notice of the charge 24 hours before a hearing); Lang v.
Sauers, 529 F. App’x 121, 123 (3d Cir. 2013) (“Even if this regulation was violated,
Lang cannot show that his right to due process was violated at either hearing,
especially where Wolff does not require issuance of the charge within 24 hours of the
incident. Wolff only requires that an inmate receive written notice of the charges 24
hours before a hearing.”); Kincer v. Winn, 2014 WL 4259469, *2 (D. Ariz. Aug 29, 2014)
(refusing to expunge disciplinary conviction where inmate allegedly did not receive
notice within 24 hours); Nerlich v. Quintana, 2013 WL 875909, *5 (E.D. Ky. Mar. 7,

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2013) (even assuming that the regulation “required delivery of an incident report within
24 hours in all instances, the Constitution does not, and thus a f ailure to adhere to the
regulation does not create a claim of constitutional dimension”); Rosa v. Grondolsky,
2013 WL 3491077, *7 (D. Mass. July 9, 2013) (“While the Supreme Court has held that
procedural due process requires that an inmate be given at least 24 hours to prepare
for his or her hearing on a disciplinary charge, there is no constitutional requirement
that a prisoner be given notice within 24 hours of the staff believing that a prisoner may
be charged in the future with a disciplinary infraction.”) (citations omitted); Hughes v.
Quintana, 2013 WL 5350668, *3 (C.D. Cal. Sep 23, 2013) (same); Robles v. English,
2013 WL 3797594, *6 (N.D. Fla. July 19, 2013) (“Petitioner failed to show that the . . .
failure to comply with time deadlines set forth in the federal regulations and BOP
Program Statements entitle him to relief. . . . Even though Petitioner may have received
the incident report three months after staff became aware of his involvement . . . [he]
received notice of the charge and hearing at least 24 hours prior to the hearing, which is
all that is required to satisfy due process concerns.”); Riley v. Drew, 2013 WL 2285941,
*5 (D.S.C. May 23, 2013) (same).
Thus, because the Constitution does not require 24 hour notice of an incident
report, even in relation to the deprivation of a protected liberty interest, Mr. Buhl does
not state a violation of his due process rights.
In his Reply, Mr. Buhl argues that he has a liberty interest in avoiding
confinement in the ADX facility where he is located and that his disciplinary conviction
has precluded him from transfer from that facility for the last two and one-half years.
Docket No. 22-1 at 2. This claim has no merit. The Court of Appeals for the Tenth
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Circuit repeatedly has held that confinement in this facility does not constitute an
aytpical and significant hardship that would qualify as a protected liberty interest under
Sandin. See Gowaldia v. Stearns, 596 F. App’x 667 (10th Cir. 2014); Rezaq v. Nalley,
677 F.3d 1001, 1011 (10th Cir. 2012).
Moreover, even if it did, the same reasoning applies as stated above. In other
words, even if Mr. Buhl could show that he had a protected liberty interest in avoiding
confinement in the ADX, the Court would deny relief because the failure to provide
notice of the charges within 24 hours did not violate his right to due process. In the
instant case, it is apparent upon review of the record that Applicant was afforded each
of the due process protections required by Wolff in connection with the disciplinary
proceedings at issue. Specifically, he received the opportunity to appear before a DHO,
he was provided with written notice of the charges against him, a copy of his rights and
notice of his disciplinary hearing, which were delivered to him more than twenty-four
hours notice before his hearing. Also, Petitioner was provided with the opportunity to
call witnesses as well as his right to staff representation. Finally, Petitioner was
provided with the DHO’s report which provided a thorough written explanation of the
DHO’s decision, as well as the evidence relied upon and the rationale for the decision.
Moreover, the DHO’s decision was supported by some evidence. The
determination of whether that standard is satisfied “does not require examination of the
entire record, independent assessment 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.” Hill, 472 U.S. at
455-56. Under Hill, judicial review of a prison disciplinary decision is limited to ensuring
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that the prisoner was afforded certain procedures, the action against him was not
arbitrary, and that the ultimate decision has some evidentiary support. Id. at 457.
Mr. Buhl’s disciplinary conviction complied with the due process procedures
mandated for the deprivation of a protected liberty interest. Accordingly, it is irrelevant
whether his continued confinement in the ADX, which he asserts is based on this
disciplinary conviction, constitutes a deprivation of a protected liberty interest. Mr. Buhl
received all the due process protections required for the deprivation of a protected
liberty interest. Therefore, he is not entitled to relief.
IV. CONCLUSION
In summary, the Court finds that Mr. Buhl is not entitled to relief and the
Application will be denied. Accordingly, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241 [Docket No. 1] is denied and this case is dism issed with prejudice.

DATED May 27, 2015.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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