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Joseph v. Maye

United States District Court, Tenth Circuit

October 23, 2013

JOHNNY JOSEPH, Petitioner,
CLAUDE MAYE, Respondent.


RICHARD D. ROGERS, District Judge.

This pro se petition for writ of habeas corpus was filed pursuant to 28 U.S.C. § 2241 by an inmate of the United States Penitentiary, Leavenworth, Kansas (USPL). Having examined the materials filed, the court finds that petitioner has not satisfied the filing fee and fails to state a claim. He is given time to cure these deficiencies.


The statutory fee for filing a federal habeas corpus petition is $5.00. Petitioner has neither paid the fee nor submitted a motion to proceed in forma pauperis (IFP). This action may not proceed until the filing fee is satisfied in one of these two ways. A prisoner seeking to bring a habeas action without payment of fees must submit an affidavit that includes a statement of the prisoner's assets. 28 U.S.C. § 1915(a)(1). In addition, the prisoner must submit a certified accounting of the funds available to him in his institutional account. D.Kan.Rule 9.1(g);[1] see Rules Governing Section 2254 Cases in the United States District Courts, Rule 3(a)(2)(habeas petition must be accompanied by "a motion for leave to proceed in forma pauperis, the affidavit required by 28 U.S.C. § 1915, and a certificate from the warden or other appropriate officer of the place of confinement showing the amount of money or securities that the petitioner has in any account in the institution"). Petitioner is ordered to either pay the filing fee or file a proper motion to proceed in forma pauperis upon forms provided by the court that is supported by the necessary financial information. The clerk shall be directed to send forms to petitioner for filing a proper IFP motion. If Mr. Joseph does not satisfy the filing fee within the prescribed time, this action may be dismissed without prejudice and without further notice.


As the factual basis for his petition, Mr. Joseph alleges as follows. While an inmate at the USPL, he was charged in an Incident Report (IR) with the prohibited act of Possession of a Hazardous Tool, Code 108.[2] In the IR under "Description of Incident, " which was section 11, it was reported that: "On the above date and time I, Ofc. J. Obas while conducting my daily shakedown discovered the vent in room GO2-912 which house (sic) Inmate Joseph, Johnny # XXXXX-XXX partly unscrewed, " and a green and black AT&T Samsung cell phone inside the vent. Petition (Doc. 1) at 4, 5. It is not disputed that at the time of the incident, Mr. Joseph was housed in Cell 912. Section 6 of the IR was "Place of Incident." In Section 6, it was reported that the incident occurred in "GO2-921U." Thus, the cell number in section 6 is different from the number written in Section 11. Section 11 is also different in that a "U" followed the cell number, which designated the upper bunk rather than the lower bunk. Petitioner argues that this U suggests a different location for the phone rather than that of the AC vent.

Other than the phone, the IR was the only evidence against Mr. Joseph. In response to the charge, he stated that: "The phone is not mine, " and "I have never seen the phone." The reporting officer was not called to clarify the varying information. Petitioner was found guilty by the Disciplinary Hearing Officer (DHO) on August 2, 2012, and was sanctioned with a loss of good time. He appealed to the Regional Office of the Bureau of Prisons (BOP), which concurred with the DHO's interpretation of the incident. Petitioner claimed that he had asked for cell-phone use records to be produced, but was told they were not relevant because he was charged with possession not use of the cell phone. He was also told that the record revealed he never requested evidence/documents. In response to his claim that he did not commit the prohibited act, he was told that contraband had been found in a common area of his cell when it was his responsibility to keep his cell free of contraband. Petitioner exhibits the Response to his Regional Administrative Remedy Appeal that he received on November 1, 2012. With respect to the IR containing conflicting information, it provides in part:

[Y]ou complain two conflicting locations of incident were identified in the DHO report. Contact with the institution revealed this was a typographical error and staff inadvertently identified the wrong location in Section 11. This was verified through review of your inmate quarters history form.

Petition (Doc. 1-1) Exhibit. He appealed to the Office of General Counsel in November 2012 but received no response, and was advised by staff to continue as if denied.

Petitioner claims that the IR was contradictory and ambiguous on its face and that the question of which facts should be credited was not resolved. He further claims that the IR was "full of mistaken information" and "fundamentally unreliable, " so that there was no evidence or "clearly not sufficient substantial evidence to support the disciplinary findings." He argues that if "one discounts the conflicting information in the IR, " no evidence remains.

Mr. Joseph asserts a violation of due process. He seeks expungement of the incident from his record and restoration of good time.


In Wolff v. McDonnell, 418 U.S. 539 (1974), the Supreme Court held that the Due Process Clause provides certain minimum protections for inmates facing the loss of good time credits as a disciplinary sanction. However, the "full panoply of rights due a defendant in [criminal] proceedings does not apply" in prison disciplinary proceedings because they are not part of a defendant's criminal prosecution. Wolff, 418 U.S. at 556. Rather, the Court held in Wolff that an 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 upon and the reasons for the disciplinary action." Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985) (discussing Wolff, 418 U.S. at 563-67). If the foregoing protections are afforded, the reviewing court must only be able to ascertain "some evidence" in the proceedings below in order to uphold the disciplinary action. Id. (quoting Hill, 472 U.S. at 455) (internal quotation marks omitted) ("the requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits."). As the Court in Hill explained, this standard of proof is not demanding because "[a]scertaining whether this standard is satisfied does not require examination 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; Mendoza v. Tamez, 451 Fed.Appx. 715, 717 (10th Cir. 2011) (unpublished)[3] ("The some evidence' standard is not exacting."). Due process "does not require evidence that logically precludes any conclusion but the one reached by the disciplinary board, " id. at 457, as long as "the record is not devoid of evidence that the findings of the disciplinary board were without support or otherwise arbitrary." The disciplinary decision will be upheld even if the evidence supporting the decision is "meager." Mitchell v. Maynard, 80 F.3d 1433, 1445 (10th Cir. 1996) (citing Hill, 472 U.S. at 457). The "relevant inquiry is what process (the inmate) received, not whether the [hearing officer] decided [his] case correctly." Swarthout v. Cooke, 131 S.Ct. 859, 863 (2011) (per curiam).

The fact that the only evidence other than the phone against Mr. Joseph was the IR, taken as true, does not entitle him to federal habeas corpus relief. "The information provided in a written incident report, standing alone, can satisfy the some evidence' standard." Love v. Daniels, 2012 WL 6923719, *7 (D.Colo. 2012), R&R adopted, 2013 WL 247778 (D.Colo. Jan. 23, 2013) (citing Hill, 472 U.S. at 456) (prison guard's copies of his written report supported conclusion that the evidence before the disciplinary board was sufficient to meet the requirements imposed by the Due Process Clause); Hudson v. Johnson, 242 F.3d 534, 536-37 (5th Cir. 2001) (information contained in an incident report is "some evidence" of inmate's guilt)). The IR is the reporting officer's version of the events giving rise to the disciplinary charge. Even where an inmate questions the credibility of the reporting officer's statements, a court is not required "to make credibility determinations or reweigh the evidence." See Hill, 472 U.S. at 455-56. Thus, contrary to petitioner's argument, "it is proper to rely upon a written report" in a prison disciplinary proceeding. See Id. at 456; Smith v. Samu, 54 F.3d 788, at *2 (10th Cir. May 10, 1995) (unpublished) (rejecting claim that it was improper to rely on prison guard's report because it was hearsay). Ruelas v. Zuercher, 240 Fed.Appx. 796, 797 (10th Cir. 2007) (unpublished) ("[incident] report alone constitutes some evidence' of Petitioner's guilt" and due process ...

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