Wise v. Commandant , 82 F. App'x 636 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 2 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
MICHAEL WISE,
Petitioner-Appellant,
v. No. 03-3129
(D. Kan.)
COMMANDANT, United States (D.Ct. No. 00-CV-3335-RDR)
Disciplinary Barracks,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before TACHA, Chief Circuit Judge, PORFILIO, Circuit Judge, and BRORBY,
Senior Circuit Judge.
After examining the briefs and 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.
*
This order and judgment is not binding precedent except under the doctrines of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.
Appellant Michael Wise, a military inmate appearing pro se, appeals the
district court’s denial of his petition for a writ of habeas corpus filed pursuant to
28 U.S.C. § 2241. His petition alleged a prison Disciplinary and Adjustment
Board deprived him of “good conduct time” without due process of law, and
insufficient evidence supported the Board’s determination he committed
disciplinary infractions. Because this proceeding arises under § 2241 and Mr.
Wise is a federal prisoner, he does not need a certificate of appealability. See
McIntosh v. United States Parole Comm’n, 115 F.3d 809, 810 n.1 (10th Cir.1997).
We exercise jurisdiction under 28 U.S.C. §§ 1291 and 2253(a) and affirm.
Mr. Wise is serving a ten-year sentence based on his conviction for
conspiracy to commit armed robbery. Based on an “incident with other inmates,”
a Disciplinary and Adjustment Board (“Board”) charged Mr. Wise with three
disciplinary infractions. The Board conducted a hearing on the matter and found
Mr. Wise guilty of two of the charged infractions: “Conduct Which Threatens”
and “Out of Place.” Among other sanctions, the Board imposed a forfeiture of
ninety days good conduct time credits, thirty days of which were suspended for
180 days.
After an unsuccessful administrative appeal of the Board’s decision, Mr.
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Wise sought habeas relief from the federal district court. He alleged several due
process violations occurred in the course of the disciplinary proceedings. Mr.
Wise also claimed the evidence before the Board did not support its determination
against him. The district court denied relief and dismissed the action.
Mr. Wise now appeals the district court’s order. He argues: (1) the district
court erroneously applied the “some evidence” standard in reviewing his due
process claim; (2) the district court erred by not conducting an evidentiary
hearing; (3) the district court erred by failing to rule on his petition in a timely
manner; and (4) these errors cumulatively warrant reversal. We address each
claim below.
Discussion
Mr. Wise argues the district court erroneously determined sufficient
evidence supported the Board’s determination as to the disciplinary charges.
Specifically, he claims the court reviewed the Board’s conclusion for “some
evidence,” rather than for “substantial evidence,” which he asserts an Army
regulation requires.
“In reviewing a denial of a petition for habeas corpus, we review the
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district court’s conclusions of law de novo and accept its findings of fact unless
they are clearly erroneous.” Hickman v. Spears, 160 F.3d 1269, 1271 (10th Cir.
1998); see also Ruggiano v. Reish, 307 F.3d 121, 126-27 (3d Cir. 2002) (applying
same standard of review to § 2241 petition involving good time credit issue).
Contrary to Mr. Wise’s contention, the burden of proof announced in an Army
regulation does not impact habeas review based on an insufficient evidence claim.
The appropriate inquiry is whether “there was sufficient evidence for any rational
fact finder” to find Mr. Wise committed the disciplinary infractions by a greater
weight of the evidence. Romano v. Gibson, 278 F.3d 1145, 1154 (10th Cir.
2002).
Here, the Board received evidence from three confidential sources who
“provided independently verified reliable information in the past.” At least one
of the sources indicated he witnessed Mr. Wise’s misconduct. Based on this
evidence, a rational trier of fact could determine Mr. Wise committed the
disciplinary infractions. Accordingly, we affirm the district court’s determination
that sufficient evidence supported the Board’s determination.
Mr. Wise also argues the district court should have held an evidentiary
hearing to resolve disputed facts pertaining to his habeas petition. We review a
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district court’s decision not to conduct an evidentiary hearing for abuse of
discretion. United States v. Davis, 60 F.3d 1479, 1483 (10th Cir. 1995), cert.
denied, 517 U.S. 1210 (1996). After reviewing Mr. Wise’s habeas petition, we
conclude his allegations, if proved, would not warrant relief. See Medina v.
Barnes, 71 F.3d 363, 366 (10th Cir. 1995) (“To be entitled to an evidentiary
hearing in a federal habeas action, the petitioner must first make allegations
which, if proved, would entitle him to relief.”). Accordingly, the district court
did not abuse its discretion by declining to conduct an evidentiary hearing.
Mr. Wise next claims the district court erred by delaying its disposition of
his habeas petition until 761 days after he filed his traverse. Construing Mr.
Wise’s pro se appeal liberally, as we must, see Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir.1991), we interpret his argument as a due process claim. “[T]he
remedy for a due process violation caused by inordinate delay of a district court is
not habeas relief, but a writ of mandamus directing the district court to act or rule
on the pending matter. United States v. Wiktor, 146 F.3d 815, 819 (10th Cir.
1998); see also Johnson v. Rogers, 917 F.2d 1283, 1284-85 (10th Cir. 1990). In
reviewing claims of judicial delay on matters eventually adjudicated by the
district court, this court determines whether the district court’s or the
government’s delay prejudiced the defendant. See, e.g., Barker v. Wingo, 407
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U.S. 514, 530, 532 (1972) (holding habeas petitioner must show prejudice from
Sixth Amendment speedy trial violation; Wiktor, 146 F.3d at 819 (ruling
“unsuccessful direct appeal rebuts presumption of prejudice arising from
[judicial] delay”); Harris v. Day, 649 F.2d 755, 761-62 (10th Cir. 1981)
(explaining in a habeas proceeding, “[t]his court has required a showing of
prejudice where there has been a delay in holding a parolee’s parole revocation
hearing after execution of a parole warrant”).
Because the district court ruled on Mr. Wise’s petition, no mandamus
directing the district court to act was requested or required. Given the district
court’s denial of Mr. Wise’s petition and our affirmance thereof, he can show no
prejudice resulted from judicial delay.
Finally, we reject Mr. Wise’s argument the cumulative weight of the errors
discussed above entitle him to relief. Consistent with our determination the
alleged errors did not occur independently, we likewise hold such non-errors did
not cumulatively warrant relief. See Moore v. Reynolds, 153 F.3d 1086, 1113
(10th Cir. 1998) (“Cumulative error analysis applies where there are two or more
actual errors; it does not apply to the cumulative effect of non-errors.”), cert.
denied, 516 U.S. 1025 (1999).
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Conclusion
For the foregoing reasons, we AFFIRM the district court’s dismissal of
Mr. Wise’s petition for habeas corpus and DISMISS this appeal. We also deny
Mr. Wise’s motion to expedite this appeal as moot.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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