United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. LUNGSTRUM U.S. DISTRICT JUDGE.
matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2241 by a prisoner in federal custody. Petitioner,
proceeding pro se, seeks the expungement of a prison
disciplinary conviction and the return of good time credits.
time relevant to this petition, petitioner was incarcerated
in the United States Penitentiary, Leavenworth, Kansas.
October 31, 2018, an officer conducting a search of the cell
occupied by petitioner and another prisoner discovered a
brown substance attached to the cell trash can. The officer
delivered the material to Lieutenant A. Privett, who tested
it using NIK Kit A and NIK Kit U. The testing confirmed the
substance was an amphetamine. The results were documented in
photos and an incident report, but action on the report was
suspended pending the referral of the case to the FBI for
declined prosecution, and the incident report was released
for administrative action on November 8, 2018. The incident
report was reissued and investigated by staff on November 14,
2018. During the investigation, petitioner was advised of his
rights and declined to make a statement.
incident report was referred to the Unit Discipline Committee
(UDC). On November 19, 2018, Warden English granted an
extension of time for the completion of the disciplinary
process due to an administrative error. Petitioner appeared
before the UDC on the same day but gave no statement. Due to
the severity of the charge, the UDC referred the matter to
the Discipline Hearing Officer (DHO).
same day, petitioner received a notice of hearing and a
written explanation of his rights at the hearing. He signed
both documents and noted that he did not want to call
witnesses or to have a staff representative.
November 28, 2018, the DHO conducted the hearing. She
reviewed petitioner's due process rights with him and
noted that he did not wish to have a staff representative and
did not want to present witnesses or documentary evidence.
The DHO took notice that the UDC process was not conducted
within the usual five-day period but noted that the Warden
had approved an extension. Petitioner appeared at the hearing
and stated, “I just moved in the cell the day before. I
didn't know it was in there. I don't know what
amphetamines are.” The DHO considered the incident
report, the memorandum explaining the testing conducted by
Lieutenant Privett, the photos taken during the testing,
petitioner's silence during the investigation and before
the UDC, and his statement at the hearing. Based on the
evidence, she found that petitioner had committed the
prohibited act. The DHO imposed the loss of 41 days of Good
Conduct Time and restrictions of 90 days on commissary,
e-mail, and visitation. The DHO advised petitioner of her
findings and how to appeal. On December 19, 2019, petitioner
received a written report setting out the decision of the
petition filed under § 2241 generally is “an
attack by a person in custody upon the legality of that
custody, and … the traditional function of the writ is
to secure release from illegal custody.” McIntosh
v. U.S. Parole Comm'n, 115 F.3d 809, 811
(10th Cir. 1997)(quoting Preiser v.
Rodriguez, 411 U.S. 475, 484 (1973)). “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.” Bradshaw
v. Story, 86 F.3d 164, 166 (10th Cir. 1996).
The Tenth Circuit has recognized that an “action
challenging prison disciplinary proceedings, such as the
deprivation of good-time credits, is not challenging prison
conditions, it is challenging an action affecting
the fact or duration of the petitioner's custody.”
McIntosh, 115 F.3d at 812.
must be afforded due process in institutional disciplinary
proceedings. However, “[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.” Wolff v. McDonnell, 418 U.S.
539, 556 (1974). In a prison disciplinary proceeding, due
process requires that a prisoner 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., Walpole v. Hill, 472 U.S. 445, 454 (1985).
Disciplinary action must be supported by “some
evidence” in the record. Id. at 455. This
evidentiary standard “does not require examination of
the entire record, independent assessment of the credibility
of witnesses, or weighing of the evidence.”
Id. Instead, the federal habeas court must consider
“whether there is any evidence in the record that could
support the conclusion reached by the disciplinary
board.” Id. at 455-56.
petitioner received written notice of the disciplinary
charges, had an opportunity to present a defense, and
received both an oral explanation and a written statement of
decision and the reasons supporting it. Next, the record
contains some evidence supporting the decision of the DHO, as
it includes the incident report, the positive drug test
results developed by staff, and photographs of the substance
found in petitioner's cell. This satisfies the due
process requirements established in Wolff and
petitioner's claim that the UDC proceeding was improperly
delayed, he has not made any argument that the approximately
ten days that elapsed between the release of the incident for
administrative processing on November 8, 2018, and the UDC
hearing on November 19, 2018, prejudiced to his ability to
defend himself. While a five-day deadline ordinarily applies
to the processing of an incident report, the Warden approved