Bruteyn v. Maye

Filing 16

ORDER ENTERED: The petition for a writ of habeas corpus under 28 U.S.C. 2241 is dismissed and all relief is denied. Signed by Senior District Judge Richard D. Rogers on 7/29/2013. (Mailed to pro se party Jeffrey C. Bruteyn by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JEFFREY C. BRUTEYN,
Petitioner,
v.

CASE NO. 12-3187-RDR

CLAUDE MAYE,
Respondent.

O R D E R
Petitioner,

a

prisoner

incarcerated

in

the

United

States

Penitentiary in Leavenworth, Kansas, proceeds pro se seeking a writ
of habeas corpus under 28 U.S.C. ' 2241.

Having reviewed the record,

the court denies the petition.
Petitioner claims he was denied his constitutional right to due
process in a prison disciplinary proceeding in which he was found
guilty of violating Code 297A, Attempted Use of the Telephone for
Abuses other than Criminal Activity.

The sanction imposed included

the loss of 27 days of good time credit, which petitioner wants
restored.
Petitioner was charged with having another inmate (C.R.) contact
petitioner’s paralegal (Ms. B) to tell her to arrange a legal call
with petitioner whose phone and email privileges had been restricted
at the time due to previously imposed disciplinary sanctions.
Petitioner’s Case Manager wrote Incident Reports against both C.R.

1

and petitioner, charging petitioner with attempting to circumvent the
telephone monitoring system by attempting to set up an unmonitored
legal call with Ms. B, who had been identified on petitioner’s visiting
list as his significant other.
Following

an

investigation,

petitioner

appeared

Disciplinary Hearing Officer (DHO) and denied the charge.

before

a

Petitioner

said that Ms. B was his paralegal and not his girlfriend, that he did
not ask C.R. to email Ms. B, and that C.R. had contacted Ms. B on his
own.

The

DHO

considered

the

documentary

evidence

presented,

including the Incident Report and investigation, and found petitioner
had committed the prohibited act as charged.
Petitioner now seeks return of the forfeited 27 days of earned
good time credit, and his record cleared of this disciplinary action.
Petitioner contends his Case Manager acted in malice and retaliation,
and points to the fact that his request for a legal call to Ms. B was
subsequently approved by the Warden.
No Exhaustion of Administrative Remedies
Respondents first contend the petition should be dismissed
because petitioner failed to fully and properly exhaust available
administrative remedies.
It

has

long

been

The court agrees.
held

that

exhaustion

of

all

available

administrative remedies is a prerequisite to a federal prison inmate
seeking judicial review of administrative action by the Bureau of
Prisons (BOP) and federal habeas corpus relief pursuant to 28 U.S.C.
§ 2241.

See Williams v. O'Brien, 792 F.2d 986, 987 (10th Cir.1986);

Brice v. Day, 605 F.2d 664 (10th Cir.1979).

In order to have fully

exhausted available administrative remedies, petitioner must have
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pursued full administrative review1 of the same claims presented in
his federal habeas corpus petition.
Here,

petitioner

pursued

administrative

review

of

his

disciplinary proceeding by filing a regional administrative remedy
appeal to the South Central Regional Office, which was denied.
Petitioner’s subsequent appeal to the Central office was returned with
direction that petitioner resubmit within 15 days (by May 26, 2012)
and provide the required paperwork.

Petitioner failed to do so.

Instead, petitioner provides the court with a copy of a cover
letter from the Federal Inmate Advocates dated June 8, 2012, and one
page of an administrative remedy resubmission dated June 8, 2012,
signed by Timothy Walker on behalf of Jeffrey Bruteyn.

Petitioner

makes no persuasive showing, however, that this out of time response
submitted and signed by an outside party was or should have been
considered for administrative review by the Central Office.
To the extent petitioner contends remedies have been exhausted
because no timely option for further administrative review exists,
petitioner essentially acknowledges his failure to properly present
his claims for full administrative review.

See Woodward v. Ngo, 548

U.S. 81, 93 (2006); Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991).
The court finds no persuasive showing has been made to excuse this
1

The BOP provides a three-level Administrative Remedy Program for inmates
to obtain “review of an issue which relates to any aspect of their confinement.”
28 C.F.R. § 542.10. First, an inmate must attempt to informally resolve the issue
with institutional staff. 28 C.F.R. § 542.13(a). If the concern is not informally
resolved, an inmate may file an appeal to the Warden. 28 C.F.R. § 542.14. Next,
an inmate may appeal an adverse decision to the Regional Director. 28 C.F.R. §
542.15(a). Finally, the inmate may appeal to the BOP's Central Office. Id. No
administrative remedy appeal is considered fully and finally exhausted until it has
been denied by the Central Office. Id. For certain disciplinary matters involving
a DHO decision, the inmate can file his initial submission to the Regional Director
in the region where the inmate is incarcerated.

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procedural fault which bars federal habeas review of petitioner’s
claims.

See Magar v. Parker, 490 F.3d 816, 819 (10th Cir.2007)(to

excuse procedural default a habeas petitioner can “‘demonstrate cause
for the default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to consider the
claims will result in a fundamental miscarriage of justice’”)(quoting
Coleman, 501 U.S. at 750)); Moscato v. Federal Bureau of Prisons, 98
F.3d 757, 761 (3rd Cir.1996)(procedural default doctrine applies to
§ 2241 by federal prisoner alleging deprivation of rights in prison
discipline).

Accordingly, the court finds the petition should be

dismissed with prejudice because petitioner’s claims are unexhausted
and procedurally barred.
No Denial of Due Process in Petitioner’s Prison Discipline
Even if the merits of petitioner’s claims were to be considered,
petitioner would not be entitled to habeas relief under § 2241.
“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.”
(internal

Mitchell v. Maynard, 80 F.3d 1433, 1444 (10th Cir.1996)
quotation

marks

omitted).

But

because

“[p]rison

disciplinary proceedings are not part of a criminal prosecution, ...
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

4

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 Inst. v. Hill, 472 U.S. 445, 454
(1985)(citing Wolff, 418 U.S. at 563–67).

Additionally, there must

be some evidence to support the disciplinary conviction.

Id.;

Mitchell v. Maynard, 80 F.3d 1433, 1445 (10th Cir. 1996).
“Ascertaining whether [the some evidence] 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; see also Mitchell,

80 F.3d at 1445 (citing Hill ).

The disciplinary decision will be

upheld even if the evidence supporting the decision is “meager.”
Mitchell, 80 F.3d at 1445 (citing Hill, 472 U.S. at 457).
In this case, petitioner’s arguments focus on the weight and
accuracy of the evidence supporting his disciplinary conviction.
This court, however, does not reweigh evidence or redetermine
credibility.

Notwithstanding petitioner’s broad denials of staff

misconduct, his insistence that Ms. B is his paralegal “representing
him” in other litigation efforts, and his claims that his Case Manager
acted in bad faith in filing the Incident Report and in retaliation
afterwards, the court finds the record adequately documents that the
“some evidence” constitutional standard was met in this instance.
See Mitchell, 80 F.3d at 1445 (written statement that inmate was found
guilty on the basis of officer’s report satisfied Wolff).

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The fact

that petitioner subsequently obtained the Warden’s approval for a
legal call between petitioner and Ms. B is irrelevant to whether
petitioner,

as

charged,

tried

to

avoid

previous

restrictions by having another inmate contact Ms. B. 2

disciplinary
Petitioner

bears the burden of showing constitutional error entitling him to
relief under § 2241, and has failed to do so.
IT IS THEREFORE ORDERED that the petition for a writ of habeas
corpus under 28 U.S.C. § 2241 is dismissed and all relief is denied.
DATED:

This 29th day of July 2013, at Topeka, Kansas.

s/ Richard D. Rogers
RICHARD D. ROGERS
United States District Judge

2

Likewise, petitioner’s challenges to the accuracy and/or validity of
respondents’ recitation of petitioner’s convictions and previous disciplinary
offenses is also irrelevant to the resolution of petitioner’s habeas action.

6