Howard v. U.S. Bureau of Prisons

• Decision Date: 23 May 2007
• Docket Number: No. 06-3315.,06-3315.
• Citation: 487 F.3d 808
• Parties: Clinton HOWARD, Petitioner-Appellant, v. UNITED STATES BUREAU OF PRISONS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

487 F.3d 808

Clinton HOWARD, Petitioner-Appellant, v. UNITED STATES BUREAU OF PRISONS, Respondent-Appellee.

No. 06-3315.

United States Court of Appeals, Tenth Circuit.

May 23, 2007.

Submitted on the briefs:^*

Clinton Howard, pro se.

Eric F. Melgren, United States Attorney, and D. Brad Bailey, Assistant United States Attorney, District of Kansas, for Respondent-Appellee.

Before HARTZ, EBEL, and TYMKOVICH, Circuit Judges.

EBEL, Circuit Judge.

Petitioner Clinton Howard, a federal inmate proceeding pro se, appeals the dismissal of his petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2241.¹ He argues that, during two disciplinary proceedings against him for assaulting another prisoner and possessing drug paraphernalia, officials of the federal penitentiary in Florence, Colorado, violated his due process rights. Because Mr. Howard was denied the opportunity to present potentially exculpatory evidence at one of his hearings, we AFFIRM in part and VACATE and REMAND in part.

I. Facts

On December 9, 2001, Clinton Howard, an inmate at the United States Penitentiary in Florence, Colorado ("USP—Florence"), under the supervision of the United States Bureau of Prisons ("the Bureau"), was involved in a fight with another inmate ("Inmate X"). According to the observations of Officers Hash and Sams, who witnessed at least the denouement of the altercation, Mr. Howard was chasing "Inmate X" in the prison yard and threw a homemade weapon at him but missed. "Inmate X" then picked up the weapon and struck Mr. Howard with it. Responding officers quickly separated the inmates, restrained them, and recovered the weapon, an ice pick. Mr. Howard was placed in administrative detention in the Special Housing Unit ("SHU") pending an investigation of the incident. An incident report, Incident No. 945214, was filed by Officer Hash on December 10 charging Mr. Howard with violating Bureau Codes 101A (Attempted Assault) and 104 (Possession of a Weapon).

While Mr. Howard was in administrative detention, Officer Ford conducted a routine inventory shakedown of Howard's belongings on December 11, 2001. Officer Ford discovered a hypodermic needle and syringe secreted among Mr. Howard's legal papers. He filed an incident report, Incident No. 945874, charging Mr. Howard with violating Bureau Code 113 (Possession of Drug Related Paraphernalia).

Mr. Howard appeared before the Unit Disciplinary Committee ("UDC") on both charges at separate hearings on December 18 and 26, 2001. At the hearing on Incident No. 945214, Mr. Howard denied the assault and weapon possession charges and asked that prison officials review videotape records from a camera that he alleged captured the incident. At the hearing on Incident No. 945874, Mr. Howard denied possessing the syringe and argued that, while he was detained in SHU, other inmates had had access to his belongings. In both cases, the UDC referred the charges to a disciplinary hearing officer ("DHO") for further hearing. Mr. Howard was provided with written notice of this DHO hearing and responded, requesting the attendance of three staff witnesses: Officer Sams; Lieutenant Cunningham, the staff supervisor on duty on December 9; and P.A. Santos, who treated Mr. Howard and "Inmate X" for injuries received during the fight.

At a consolidated hearing on the two incidents on February 15, 2002, Mr. Howard denied all violations and repeated his previously asserted defenses to the charges.² Mr. Howard's requested witnesses did not appear, but they each submitted a written statement which was considered by the DHO. The DHO refused to consider the videotape evidence that Mr. Howard alleged would exonerate him. Relying on statements by Officers Hash and Ford, other reporting staff members' statements, other supporting documentation, and Mr. Howard's denial, the DHO found Mr. Howard had violated Bureau Codes 224 (Assaulting Another Person), 104 (Possession of a Weapon), and 113 (Possession of Drug Related Paraphernalia). As a result of the charges from each incident, the DHO disallowed previously accumulated good-time credit, recommended disciplinary segregation and a disciplinary transfer, suspended various privileges, and impounded Mr. Howard's personal property. Mr. Howard was subsequently transfered to the United States Penitentiary at Leavenworth, Kansas ("USP—Leavenworth").

Mr. Howard unsuccessfully pursued and exhausted the administrative appeals open to him for both incidents. He then filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the District of Kansas. Following submissions by both parties, the district court dismissed the petition, and Mr. Howard filed this timely appeal.

II. Jurisdiction

Mr. Howard argues on appeal that the District of Kansas lacked jurisdiction over his petition because the underlying events took place at USP—Florence. Although Mr. Howard did not raise this argument below, we must address it briefly as a predicate to our exercise of jurisdiction. In this instance, the district court's jurisdiction over this petition is plain. "A petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather than its validity and must be filed in the district where the prisoner is confined." Haugh v. Booker, 210 F.3d 1147, 1149 (10th Cir.2000) (quoting Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.1996)). Because Mr. Howard was imprisoned in USP—Leavenworth when he filed his petition, the District Court for the District of Kansas properly exercised jurisdiction over his petition. Further, we have jurisdiction over the appeal pursuant to 28 U.S.C. §§ 1291 and 2253.

III. Due Process Claims

Mr. Howard advances three claims before this court. First, he argues that the evidence was insufficient to support the discipline meted out for possession of drug paraphernalia. Second, he contends he was denied due process when the DHO refused to permit Mr. Howard's requested witnesses to testify in person. And finally, he claims the DHO's refusal to produce and review a videotape of the alleged assault constitutes a separate violation of his due process rights. The district court dismissed each of these claims, and we review its conclusions of law de novo. Wilson v. Jones, 430 F.3d 1113, 1117 (10th Cir.2005).

"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.'" Mitchell v. Maynard, 80 F.3d 1433, 1444 (10th Cir.1996) (quoting Taylor v. Wallace, 931 F.2d 698, 700 (10th Cir.1991)). However "[p]rison disciplinary 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, 94 S.Ct. 2963, 41 L.Ed.2d 935 (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. Corr. Inst. v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985). Further, "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. (citation, quotation omitted).

A. Evidence of Possession of Drug Paraphernalia (Incident No. 945874)

"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." Id. at 455-56, 105 S.Ct. 2768. 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 (quoting Hill, 472 U.S. at 457, 105 S.Ct. 2768).

Mr. Howard's conclusory arguments to the contrary, the evidence supporting his disciplinary sentence for possession of drug paraphernalia easily meets the Hill standard. It is indisputable that Mr. Howard, who had been placed in administrative detention at the time of Officer Ford's inventory shakedown of his possessions, did not have actual possession of the hypodermic syringe Officer Ford discovered. However, Officer Ford's incident report indicates the contraband was found among Mr. Howard's legal papers confiscated during the time of his detention, and this is "some evidence" sufficient to support the disciplinary sentence on a theory of constructive possession. Cf. Hamilton v. O'Leary, 976 F.2d 341, 345 (7th Cir.1992) ("The proposition that constructive possession provides `some evidence' of guilt when contraband is found where only a few inmates have access is unproblematical.") Mr. Howard's loss of good-time credits for this infraction thus did not violate his due process rights.

B. Exclusion of Live Witness Testimony (Incident No. 945214)

"Chief among the due process minima outlined in Wolff was the right of an inmate to call and present witnesses and documentary evidence in his defense . . . ." Ponte v. Real, 471 U.S. 491, 495, 105 S.Ct. 2192, 85 L.Ed.2d 553 (1985). But this right is not absolute; rather it is "circumscribed by the necessary `mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application.'" Baxter v. Palmigiano, 425 U.S. 308, 321, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976) (quoting Wolff, 418 U.S. at 556, 94 S.Ct. 2963). Because of the "greater hazards to...