F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 23, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
D A RW IN BR OWN ,
Petitioner-A ppellant,
v. No. 06-8095
W Y O M ING D EPA RTM EN T O F (D.C. No. 05-CV-300-B)
CO RRECTION S STATE (D. W yoming)
PENITENTIARY W ARDEN, also
known as SCOTT ABBOTT, in his
official capacity,
Respondent-Appellee.
OR DER DENYING CERTIFICATE O F APPEALABILITY *
Before BRISCO E, M cK AY, and M cCO NNELL, Circuit Judges.
Darwin Brown (Brown), a state prisoner proceeding pro se, requests a
certificate of appealability (COA) to appeal the district court’s order denying his
28 U.S.C. § 2241 petition for writ of habeas corpus. Because Brown has not
made “a substantial showing of the denial of a constitutional right,” 28 U.S.C. §
2253(c)(2), we deny his request for a COA and dismiss the matter.
*
This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel.
I
On April 20, 2005, Brown was involved in a fight with another inmate of
the W yoming State Penitentiary (W SP) which grew into a larger incident. Brown
was charged with three major violations of the W SP inmate’s rules: (1) assault,
(2) battery, and (3) organizing, encouraging, or participating in a work stoppage
and/or other disruptive demonstration or practice. A disciplinary hearing was
held, Brown was found guilty of all three charges, and was sentenced to eighteen
months of segregation and a loss of “good time” credits. Brown appealed to the
W arden, arguing in pertinent part that the notice of charges was vague, thus
denying him due process. The W arden agreed the charges were vague, ordered
them vacated and rewritten, and ordered a second disciplinary hearing.
On August 31, 2005, Brown received his new notice of charges, and, in
addition to the three major charges in the original notice, two additional general
charges were added: (1) involvement in spontaneous fighting with another inmate,
and (2) tampering with evidence or influencing a witness involved in any
disciplinary process, not amounting to threats. A new and different disciplinary
comm ittee was formed and found Brown guilty of assault, battery, disruption, and
tampering, but not guilty of spontaneous fighting. Brown was sanctioned with
thirty months of segregation and loss of good time credits. Brown again appealed
to the W arden, arguing that the new charges added before the second hearing
were an act of retaliation for the success of his first appeal, arguing further that
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the second notice of the charges was inadequate, and alleging numerous
additional violations of due process. The W arden reduced Brown’s loss of good
time to one year, but otherwise affirmed the second disciplinary committee’s
sanction.
Brow n then filed a 28 U.S.C. § 2254 petition in federal district court
claiming unlaw ful retaliation and violations of his right to due process, essentially
seeking the vacation of all disciplinary charges and sanctions. The district court
entered an order correctly construing the petition as a 28 U.S.C. § 2241 petition.
After hearing oral arguments on the parties’ cross-motions for summary
judgment, reviewing the transcript of Brown’s second disciplinary hearing, and
watching the videotape of the incident in question, the district court entered an
order denying Brown’s petition. Brown requests a COA, and has filed a notice of
appeal regarding the denial of his § 2241 petition. W e construe Brow n’s
appellate brief in support of his notice of appeal as additional argument in support
of his application for a COA.
II
Brown may appeal the denial of his § 2241 petition only if a COA is issued.
See 28 U.S.C. § 2253(c)(1); M ontez v. M cK inna, 208 F.3d 862, 867 (10th Cir.
2000). A COA will issue only if Brown makes “a substantial showing of the
denial of a constitutional right.” 18 U.S.C. § 2253(c)(2). To make the requisite
showing, he must demonstrate that “reasonable jurists could debate whether . . .
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the petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” See
M iller-El v. Cockrell, 537 U.S. 322, 336 (2003) (citations omitted).
Brow n makes roughly twelve arguments in support of his request for a
COA: (1) unlawful retaliation, (2) insufficient notice of charges, (3) violation of
W SP inmate prison regulations, (4) fraudulent notice of disciplinary extension,
(5) wrongful denial of access to evidence, (6) improper reliance on the videotape
of the incident, (7) failure to provide an impartial review, (8) insufficient
evidence, (9) self-defense, (10) denial of access to the courts, (11) failure to
develop facts underlying the disciplinary incident, and (12) wrongful denial of his
motion to alter or amend the judgment.
To begin, we note that “[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.” W olff v. M cDonnell, 418 U.S. 539, 556 (1974). To
satisfy due process in a prison disciplinary proceeding, “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, M ass. Corr. Inst., W alpole v. Hill, 472 U.S. 445, 454 (1985).
There must also be “some evidence in the record” supporting the charge. Id. at
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454-57. W e conclude that these minimal procedural requirements were satisfied
here and that no jurist could reasonably assert that Brown has made “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
As for the specific objections Brown asserts, they do not deserve
encouragement to proceed further. 1 First, to prove vindictive prosecution, Brow n
had to show either (1) actual vindictiveness, or (2) a reasonable likelihood of
vindictiveness, which raises a presumption of vindictiveness. United States v.
Raymer, 941 F.2d 1031, 1040 (10th Cir. 1991). Brown attempted to establish the
latter, but failed and no reasonable jurist could conclude otherwise. Specifically,
a prisoner claiming retaliation must “allege specific facts showing retaliation [on
account] of the exercise of the prisoner’s constitutional rights,” Frazier v. Dubois,
922 F.2d 560, 562 n.1 (10th Cir. 1990), and he “must prove that ‘but for’ the
retaliatory motive, the incidents to which he refers, including the disciplinary
action, would not have taken place,” Smith v. M aschner, 899 F.2d 940, 949-50
(10th Cir. 1990). The record does not indicate that either the conduct of the
charging officer in bringing two additional charges in the second disciplinary
hearing, or the second disciplinary committee’s m ore substantial sanction, “w ould
not have occurred but for the hostility or punitive animus toward the defendant
because he exercised his specific legal right.” United States v. Contreras, 108
1
W e note that alleged violations of due process in the first disciplinary
hearing were mooted by Brown’s success in having his initial charges vacated.
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F.3d 1255, 1262 (10th Cir. 1997) (emphasis in original). Also, there is no
evidence of disparate treatment. Brown has not made the requisite showing for
issuance of a COA on this claim.
Second, by setting forth the offense codes charged, and a brief description
of the charged conduct, prison officials provided Brown with sufficient notice to
allow him to defend against these charges at the second disciplinary hearing. See,
e.g., W hitford v. Boglino, 63 F.3d 527, 534 (7th Cir. 1995) (concluding notice
was sufficient where prisoner had been given the number of each disciplinary rule
he was alleged to have violated, and was given a brief statement describing the
charged conduct). No reasonable jurist could conclude otherw ise, thus, Brow n’s
allegation of a vague and deficient notice does not require further scrutiny.
Prison officials also provided a satisfactory written statement of the evidence
relied upon – the videotape, Brow n’s testimony, testimony of the charging officer,
and an officer report – and the reasons for the disciplinary action – acts of assault,
battery, disruption, and tampering. Thus, a COA is not merited on these claims as
well.
Likewise, no reasonable jurist could conclude that Brown’s claim that
prison officials deprived him of due process by violating internal prison
regulations rises to the level of a due process violation. Prison regulations are
“primarily designed to guide correctional officials in the administration of a
prison. [They are] not designed to confer rights on inmates . . . .” Sandin v.
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Conner, 515 U.S. 472, 481-82 (1995). Although states may create liberty
interests protected by due process, “these interests will be generally limited to
freedom from restraint which . . . imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.” Id. at 484 (citations
omitted). This case does not present a situation where “a prison regulation or
practice offends a fundamental constitutional guarantee . . . .” Turner v. Safley,
482 U.S. 78, 84 (1987). The process due here under the United States
Constitution is measured by the Due Process Clause, not prison regulations. See
Hulen v. Yates, 322 F.3d 1229, 1247 (10th Cir. 2003) (“[O]nce the property right
is established, it is purely a matter of federal constitutional law whether the
procedure afforded was adequate.”); see also Shakur v. Selsky, 391 F.3d 106, 119
(2d Cir. 2004) (concluding that “regardless of state procedural guarantees, the
only process due an inmate is that minimal process guaranteed by the
Constitution”). Because the alleged violations of W SP procedural regulations do
not impose “atypical and significant hardship on [Brown] in relation to the
ordinary incidents of prison life,” Sandin, 515 U.S. at 484, we deny Brow n’s
request for a COA as to this issue.
Fourth, Brown’s claim that he was deprived of an opportunity to call
witnesses and present documentary evidence in his defense does not deserve
further consideration. In W olff, the Supreme Court acknowledged that an “inmate
facing disciplinary proceedings should be allowed to call witnesses and present
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documentary evidence in his defense when permitting him to do so will not be
unduly hazardous to institutional safety or correctional goals.” 418 U.S. at 566.
Here, no reasonable jurist could conclude that the W SP disciplinary committee
violated Brown’s due process rights by forbidding him from viewing the video
tape, or failing to provide him the names of prisoners present at the incident,
given a reasonable concern that such information could endanger other prisoners. 2
Also, a prisoner cannot maintain a due process claim for failure to permit
witness testimony if he fails to show that the testimony “would have affected the
outcome of his case.” Chesson v. Jacquez, 986 F.2d 363, 366 (10th Cir. 1993).
Absent an indication that the testimony of M ajor M oore at the second disciplinary
hearing, or that having access to the contents of M ajor M oore’s testimony at the
first proceeding, would have somehow affected Brow n’s second disciplinary
proceeding, no reasonable jurist could consider the aforementioned restrictions a
violation of Brown’s right to call w itnesses and present evidence in his defense.
Likewise, prison officials afforded Brown an adequate hearing, and the Due
Process Clause does not require a second opportunity before a federal court to
contest the disciplinary charges via an evidentiary hearing. See Hill, 472 U.S. at
455-56 (“Ascertaining whether this [due process] standard is satisfied does not
require examination of the entire record, independent assessment of the credibility
2
Brown also argues that W SP w ould not provide him with a summary of the
videotape, however, there is no indication that Brown requested such a summary.
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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.”). In light of this standard, the record, and
because no reasonable jurist could conclude that Brown is entitled to the relief
sought, w e also deny Brown’s request for a COA as to this issue.
Fifth, Brown challenges the disciplinary committee’s partial reliance on the
videotape of the altercation in determining his guilt. He argues the disciplinary
comm ittee did not view the videotape, and that the quality of the videotape was
too degraded to identify the inmates in the underlying altercation. However, the
record indicates that the tape existed, that it was sufficiently clear to identify
Brown, that it was relied upon by the disciplinary committee, and that it did not
corroborate Brown’s self-defense theory. M oreover, the district court reached the
same conclusion upon review. In short, jurists could not reasonably debate that
there is “some evidence” supporting the disciplinary committee’s determination.
Sixth, Brown claims that he was denied an impartial disciplinary hearing
because the prison official who reviewed his second disciplinary appeal, Jerry
Steele, was an alleged witness to the incident upon which his charges are based.
Brown also claims that a document signed by Steele, which notified Brown that
his second disciplinary hearing was to be rescheduled, was somehow “fraudulent”
and violated his due process rights. However, there is no evidence in the record
supporting either assertion, but only unsupported allegations by Brow n of Steele’s
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alleged misconduct. W e deny Brown’s request for a COA on these claims as
well.
Brow n next asserts that the punishment meted out by the disciplinary
comm ittee violated the Due Process Clause because his involvement in the
altercation in question was limited to self-defense. Brown claims that W SP
medical records and investigative reports establish that he suffered multiple stab
wounds from the April 20, 2005 incident, thereby establishing that he was acting
in self-defense. Nonetheless, this documentary evidence is not in the record, nor
is there an allegation these documents, assuming they exist, were requested by,
and denied to, Brown. M ore importantly, this argument is simply another way to
challenge the disciplinary committee’s determination that Brown committed the
prohibited acts, and we have already concluded that a reasonable jurist w ould
conclude that “some evidence” supports that decision.
As for Brown’s claim that he was denied access to the courts, we see no
arguable constitutional violation in the manner in w hich the district court
conducted its July 21, 2006 hearing on the parties’ cross motions for summary
judgment, at which Brown appeared telephonically. During that hearing, the
district court became aware that the W SP intended to charge Brown the costs
associated with his telephone call. Soon thereafter, the district court entered an
order, in pertinent part, permanently enjoining the W SP from charging any
inmates, including Brown, to appear by telephone in court ordered proceedings.
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Brown filed a motion with the district court requesting, in part, an opportunity to
supplement the argument he made at the hearing, which the district court denied.
Brown now argues that W SP employees “distracted him from persuasively and
fully argu[ing] the merits of [his] claims . . . .” Appellant’s Br., p. 22. The
record does not bear this out and we conclude there is no basis for further
consideration of Brown’s access-to-the-court claim.
Finally, no reasonable jurist could find merit in Brown’s unsupported
assertions that the disciplinary committee and the district court somehow failed to
discharge an affirmative duty to “have [Brown’s] facts fully developed.” Id. at 2.
Likewise, Brown’s vague and conclusory argument that the district court erred in
failing to address the substance of his motion to alter or amend the district court’s
denial of his petition is not deserving of additional consideration.
In sum, Brown has failed to make a substantial showing of the denial of a
constitutional right. Accordingly, the application for a COA is DENIED. The
m otion to proceed in forma pauperis is DENIED. The appeal is DISM ISSED.
Entered for the Court
M ary Beck Briscoe
Circuit Judge
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