F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 15 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
DARREN JAY DENNISON,
Petitioner - Appellant, No. 98-3352
v. (D.C. No. 98-CV-3351)
UNITED STATES OF AMERICA, (D. Kan.)
Respondent - Appellee.
ORDER AND JUDGMENT *
Before TACHA, McKAY, and MURPHY, Circuit Judges.
After examining Petitioner-Appellant Darren Jay Dennison’s brief and the
appellate record, this panel has determined unanimously that oral argument would
not materially assist the determination of this appeal. See Fed. R. App. P.
34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without
oral argument.
Before us is Petitioner’s motion to proceed in forma pauperis on appeal
along with his appeal of the district court’s denial of his application for a writ of
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
habeas corpus pursuant to 28 U.S.C. § 2241. 1 To proceed in forma pauperis on
appeal from the denial of a section 2241 petition, Petitioner must show “a
financial inability to pay the required fees and the existence of a reasoned,
nonfrivolous argument on the law and facts in support of the issues raised on
appeal.” McIntosh v. United States Parole Comm’n, 115 F.3d 809, 812 (10th Cir.
1997).
In his petition for a writ of habeas corpus, Petitioner, who is currently
confined in the United States Penitentiary in Terre Haute, Indiana, complained of
certain disciplinary actions taken against him while he was incarcerated in the
United States Penitentiary in Leavenworth, Kansas. 2 Specifically, Petitioner
In addition to his application and an opening brief, Petitioner also has filed
1
a pleading entitled “Motion,” which we construe as a motion for leave to file an
appendix. Because the Government has not filed any objection to this motion, we
now grant the motion.
Although Petitioner also raised claims alleging that he required protective
2
custody at the Terre Haute facility, the district court properly dismissed this claim
because it does not have jurisdiction over the officers or staff of the Terre Haute
facility. As the district court indicated, if Petitioner wishes to seek judicial
intervention regarding his entitlement to protective custody in Terre Haute, he
should file a Bivens complaint in the appropriate federal district court in Indiana.
See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388, 395-97 (1971).
The district court also properly dismissed Petitioner’s claims regarding his
placement in administrative segregation at Leavenworth in December 1996.
While “a § 2241 attack on the execution of a sentence may challenge some
matters that occur at prison,” McIntosh, 115 F.3d at 811, Petitioner has not
alleged or shown the deprivation of any constitutional or federal statutory right in
connection with this claim. Thus, habeas relief is unavailable on this claim. See
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alleged that he received a sanction of fifteen days of disciplinary segregation and
a disciplinary transfer for possession of a contraband walkman radio. Although
Petitioner admitted to the charged offense, he claimed that his procedural due
process rights were violated because he was coerced into making a statement
without being advised of his Miranda rights, he was denied assistance of counsel,
he did not waive the presence of a staff representative, and he was unsuccessful in
filing a disciplinary appeal. In dismissing the petition, the district court noted
that before prison authorities may deprive a prisoner of a protected liberty
interest, the prisoner is entitled to due process. At a minimum, the prisoner is
entitled to (1) advance notice of the charges at least twenty-four hours before the
disciplinary hearing; (2) present evidence and witnesses in his defense; and (3)
receive a written statement describing the evidence relied upon and the reasons
for the discipline imposed. See R., Doc. 11 at 2 (citing Wolff v. McDonnell, 418
U.S. 539, 563-69 (1974)). The district court concluded that because Petitioner’s
punishment for his violation of prison rules did not “‘impose[] atypical and
significant hardship [on him] in relation to the ordinary incidents of prison life,’”
id. at 3 (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)), it did not “give
rise to a due process claim.” Id. The court went on to explain that even if
Petitioner’s punishment had implicated a protected liberty interest, his “admission
28 U.S.C. § 2241(c)(3).
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of the charged misconduct clearly is sufficient to support the disciplinary action”
and “there is [no] allegation that [P]etitioner was denied the rights enumerated in
Wolff.” Id. at 3-4.
On appeal, Petitioner repeats much of what he alleged in his section 2241
petition. He also claims that the district court erred in: (1) failing to focus on the
“criminal element” of the prison officials’ actions in this case, as opposed to
merely focusing on the procedural deprivations he alleged; (2) finding that no
Miranda violation occurred; (3) concluding that the disciplinary measures did not
impose atypical and significant hardship; (4) determining that the Bureau of
Prisons’ staff did not interfere in his administrative appeal; (5) failing to find that
the Bureau of Prisons is acting arbitrarily and capriciously against Petitioner; and
(6) failing to find that Petitioner was deprived of any of the due process
protections enumerated in Wolff.
We review the district court's dismissal of a section 2241 petition de novo.
See Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). Further, because
plaintiff proceeds pro se, we construe his pleadings liberally. See Riddle v.
Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996). Having reviewed Petitioner’s
arguments, the district court’s order of dismissal, and the entire record on appeal,
we conclude that Petitioner’s claims are meritless. First, there is no credible
record support for the claim that any of the prison officials involved in this case
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engaged in any criminal activity with respect to the disciplinary measures imposed
against Petitioner, so there is no “criminal element” to investigate. Second, while
prisoners are entitled to certain procedural safeguards in the context of
disciplinary proceedings, see Wolff, 418 U.S. at 563-69, they are not entitled to
Miranda warnings in connection with such proceedings. See Rhodes v. Henman,
946 F.2d 901, 1991 WL 216808, at **3 (10th Cir. 1991) (Table) (citing Tinch v.
Henderson, 430 F. Supp. 964, 968-69 (M.D. Tenn. 1977)). Third, the disciplinary
transfer and the fifteen-day disciplinary segregation imposed by the Bureau of
Prisons did not amount to “atypical and significant hardship” under Sandin
because they did not “work a major disruption in [Petitioner’s] environment” nor
did they “inevitably affect the duration of his sentence.” Sandin, 515 U.S. at 486-
87. Thus, because Petitioner was not deprived of a protected liberty interest, he
was not entitled to the due process protections set forth in Wolff. See id. at 487.
Fourth, there is no indication in the documentary evidence in the record that any
Bureau of Prisons personnel interfered with or otherwise impeded Petitioner’s
administrative appeal. Fifth, the record does not support Petitioner’s allegation
that the Bureau of Prisons treated him arbitrarily and capriciously. Finally, even
though we conclude that Petitioner did not have a due process claim entitling him
to the Wolff protections, he has not set forth any facts indicating that he was
deprived of the safeguards in any event. Petitioner has not alleged that he was
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deprived of notice regarding the charges against him, that he was deprived of the
opportunity to present witnesses and evidence in his defense, or that the Bureau
of Prisons failed to give him a written statement regarding the evidence
supporting and the reasons for the disciplinary action.
Because Petitioner has not shown the existence of a reasoned, nonfrivolous
argument in support of the issues raised on appeal, we deny his motion to proceed
on appeal in forma pauperis and dismiss his appeal.
DENIED and DISMISSED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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