Whitmore v. Parker , 484 F. App'x 227 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
June 7, 2012
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
DAVID WHITMORE,
Petitioner-Appellant,
No. 11-6317
(D.C. No. 5:11-CV-00539-R)
v.
(W.D. Okla.)
DAVID PARKER, Warden,
Defendant-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.
David Whitmore is a prisoner in the custody of the State of Oklahoma. On August
12, 2010, a disciplinary hearing officer found him guilty of being present in an
unauthorized area. After unsuccessfully challenging his disciplinary conviction in state
court, he filed a federal petition for a writ of habeas corpus in the Western District of
Oklahoma pursuant to 28 U.S.C. § 2241. The district court denied the petition on the
*
This Order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule
32.1.
After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this matter. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument.
merits. It further denied various motions filed by Mr. Whitmore. Mr. Whitmore,
proceeding pro se,1 now requests a certificate of appealability (“COA”) to appeal from the
district court’s order. We deny Mr. Whitmore’s COA request and dismiss this matter.
I
On August 12, 2010, a disciplinary hearing officer at the Lawton Correctional
Facility in Lawton, Oklahoma, found Mr. Whitmore guilty of being present in an
unauthorized area in violation of Oklahoma Department of Corrections (“ODOC”)
institutional policies, which resulted in a loss of earned prison credits. See R. at 241
(Mag. J. Rep. & Rec., filed Oct. 24, 2011). Mr. Whitmore filed a petition for judicial
review in state district court challenging this decision. This petition was denied, and he
appealed to the Oklahoma Court of Criminal Appeals (“OCCA”), which affirmed the
state district court’s denial of relief.
On May 10, 2011, Mr. Whitmore filed a petition for a writ of habeas corpus under
28 U.S.C. § 2241. He presented three separate grounds for relief, alleging first that his
due-process rights were violated because “there was no evidence of any rule violation.”
See R. at 6, 10–11 (Pet. for Writ of Habeas Corpus, filed May 10, 2011) (capitalization
altered). As to this allegation, Mr. Whitmore broadly alleged that there was no evidence
that he committed the disciplinary violation for which he was found guilty—viz., being
1
Because Mr. Whitmore is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v. Davis,
596 F.3d 1198, 1201 n.2 (10th Cir. 2010).
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present in an unauthorized area. The offense at issue (Violation Code 03-1) is defined in
the ODOC policies, see Okla. Acts Constituting Rule Violation, available at
http://www.doc.state.ok.us/offtech/060125aa.pdf [hereinafter “ODOC Rules”], and
prohibits being present “[o]utside defined boundaries within [a] facility as defined by
[the] facility or . . . in a restricted area.” ODOC Rule 03-1.
The evidence at Mr. Whitmore’s hearing showed that he was released from his
assigned housing “unit” to attend a computer class, but instead of reporting to the class,
he went to the disciplinary hearing office (“DHO”). Although Mr. Whitmore claimed
that he had permission from a correctional officer, Officer Farnsworth, to go to the
DHO—indeed, that Officer Farnsworth directed him to go there—the disciplinary hearing
officer concluded that there was sufficient evidence that Mr. Whitmore was present in an
unauthorized area. See R. at 119 (Disciplinary Hr’g Report, dated Aug. 17, 2010). In
reaching this decision, the disciplinary hearing officer relied upon the statements of three
correctional officers—Officers Benton, Kirkpatrick, and Farnsworth. The gist of these
statements was that, contrary to Mr. Whitmore’s claims, Officer Farnsworth authorized
him to report to the computer class, not the DHO. The disciplinary hearing officer
concluded that the “[s]taff ha[d] nothing to gain by fabricating this evid[ence].” Id. at
119. Upon referral, the magistrate judge recommended that the district court find this
evidence sufficient to support Mr. Whitmore’s disciplinary charge.
In his habeas application, Mr. Whitmore also argued that he was denied the right to
present witness statements and documentary evidence at his disciplinary hearing, and that
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the facility officers’ “retaliatory” conduct injected bias into the disciplinary proceedings.
The magistrate judge recommended that the district court also deny these claims because
they were unsupported and largely contradicted by the record.
Moreover, the magistrate judge recommended denial of several of Mr. Whitmore’s
pending motions, including his (1) motion to stay the proceedings in order to submit, inter
alia, an audio tape of the hearing; (2) motion to amend the stay motion in order to obtain
additional discovery; and (3) motion to amend in order to proceed under a “hybrid”
complaint whereby he could assert an additional “retaliation” claim under 42 U.S.C. §
1983.
Mr. Whitmore filed objections to the magistrate judge’s report on each ground.
However, the district court denied the objections, holding that there was sufficient
evidence that Mr. Whitmore had committed a rules violation by being present in an
unauthorized area. See id. at 269 (Dist. Ct. Order, filed Nov. 10, 2011). Moreover, it
found, after “review[ing] the entire record,” that Mr. Whitmore was given notice and an
opportunity to present witnesses and other evidence at his disciplinary hearing. Id. It
further denied all of Mr. Whitmore’s pending motions. Mr. Whitmore now appeals.
II
Mr. Whitmore requests a COA to appeal from the district court’s denial of his §
2241 petition and his attendant motions. Broadly, he raises the same general arguments
that he did below, and claims that the district court misunderstood his contentions.
Absent our grant of a COA, we lack jurisdiction under the Antiterrorism and Effective
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Death Penalty Act of 1996 (“AEDPA”) to review the merits of Mr. Whitmore’s proposed
appeal. See 28 U.S.C. § 2253(c)(1)(A); accord Clark v. Oklahoma, 468 F.3d 711, 713
(10th Cir. 2006) (citing Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)). Specifically, “a
COA is needed to appeal . . . ‘the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State court’ . . . .” Montez v.
McKinna, 208 F.3d 862, 866–67 (10th Cir. 2000) (quoting 28 U.S.C. § 2253(c)(1)).
We may issue a COA “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy this standard, the
applicant must show “that reasonable jurists could debate whether . . . the petition should
have been resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Allen v. Zavaras, 568 F.3d 1197, 1199 (10th
Cir. 2009) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)) (internal quotation
marks omitted). Where the district court denies an application on a procedural ground,
ordinarily the applicant must show both “that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was correct in its
procedural ruling.” Harris v. Dinwiddie, 642 F.3d 902, 906 (10th Cir. 2011) (quoting
Slack, 529 U.S. at 484) (internal quotation marks omitted).
We address each of Mr. Whitmore’s asserted grounds of error. In the end, we find
that Mr. Whitmore has failed to meet his burden to establish that reasonable jurists could
debate the correctness of the district court’s resolution of his petition.
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A
Mr. Whitmore first contends that the district court incorrectly dismissed his claims
pursuant to the respondent’s “motion to dismiss,” in that the court inappropriately
considered material outside of the pleadings in contravention of Federal Rule of Civil
Procedure 12(d). Aplt. Opening Br. at 5. Specifically, Mr. Whitmore contends that the
court should have converted the motion to dismiss to one for summary judgment, and
credited his own evidence in the light most favorable to him. See id.; see Hicks v.
Mitchell, No. 0:09-2785-CMC-PJG, 2010 WL 2721276, at *1 n.2 (D.S.C. June 18, 2010)
(converting a state respondent’s motion to dismiss a § 2241 petition into a motion for
summary judgment because the motion relied on external exhibits); accord Higdon v.
Jarvis, No. 7:11–cv–00330, 2012 WL 738731, at *3 & n.6 (W.D. Va. Mar. 5, 2012).
We disagree with Mr. Whitmore’s assertion of error. First, in civil litigation, while
the general rule is that “[a] motion to dismiss for failure to state a claim upon which relief
can be granted must be converted into a motion for summary judgment whenever the
district court considers matters outside the pleadings,” Lowe v. Town of Fairland, Okla.,
143 F.3d 1378, 1381 (10th Cir. 1998), Mr. Whitmore is wrong as a factual matter that a
motion to dismiss was even filed in this case. Rather, the respondent simply filed a
“response” to Mr. Whitmore’s habeas petition, arguing that his claims failed as a matter
of law.
In any event, while the Federal Rules of Civil Procedure may be applied in habeas
proceedings, they need not be in every instance—particularly where strict application
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would undermine the habeas review process under AEDPA. Cf. Fed. R. Governing
Section 2254 Cases in the U.S. Dist. Cts. 12 (“The Federal Rules of Civil Procedure, to
the extent that they are not inconsistent with any statutory provisions or these rules, may
be applied to a proceeding under these rules.” (emphasis added));2 Kilgore v. Att’y Gen.
of Colo., 519 F.3d 1084, 1088 (10th Cir. 2008) (“[H]abeas proceedings may be exempt in
some circumstances from strict application of the Federal Rules of Civil Procedure.”).
For instance, discovery, to the extent that it is permitted, is generally more circumscribed
in the habeas context. See Fed. R. Governing Section 2254 Cases in the U.S. Dist. Cts. 6;
cf. Puglisi v. United States, 586 F.3d 209, 213 (2d Cir. 2009) (“There is no pre-motion
discovery in a Section 2255 case, as there is in summary judgment proceedings in a civil
case.”). And the district court is plainly permitted to consider pertinent matters of record
submitted by the respondent. See, e.g., Fed. R. Governing Section 2254 Cases in the U.S.
Dist. Cts. 5(c) (requiring a state respondent to “attach to the answer parts of the [state]
transcript that the respondent considers relevant”); see also Garza, 596 F.3d at 1205(“Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts
states that a district court judge must either dismiss a petition if it ‘plainly appears’ from
the petition and any exhibits that the petitioner is not entitled to relief or the district judge
must order the respondent to file an answer, motion or other response.” (emphasis added;
2
The Rules Governing § 2254 Cases may be applied discretionarily to
habeas petitions under § 2241. See, e.g., Boutwell v. Keating, 399 F.3d 1203, 1211 n.2
(10th Cir. 2005) (“The District Court . . . acted within its discretion by applying the
Section 2254 Rules to this § 2241 petition.”).
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other emphasis omitted)); 1 Randy Hertz & James S. Liebman, Federal Habeas Corpus
Practice and Procedure § 15.2[c][iii], at 906 (6th ed. 2011) (“Most petitioners do not
have the ability to submit the record with the petition, and the statute and rules relieve
them of any obligation to do so and require the state to furnish the record with the
answer.”).
In this vein, contrary to the customary practice in most civil litigation, it is well
established that “[the] district court [may] dismiss summarily [a] petition on the merits
when no claim for relief is stated.” O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir.
1990) (quoting Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983)) (internal
quotation marks omitted); see Fed. R. Governing Section 2254 Cases in the U.S. Dist.
Cts. 4; Garza, 596 F.3d at 1205 (noting that “the district court possesse[s] the discretion
. . . to dismiss [a] § 2241 petition if it appear[s] that the petitioner [i]s not entitled to
relief”); cf. Ochoa v. Sirmons, 485 F.3d 538, 545 (10th Cir. 2007) (“[U]nder Rule 4 of the
Rules Governing § 2254 Cases the district courts . . . engage in a merits screening of all
habeas petitions.”); 1 Hertz & Liebman, supra, § 15.2[c][i], at 895 (“Summary dismissal
under Habeas Rule 4 is a drastic disposition, not generally available in other civil
litigation . . . .”). That is what occurred in this case, and Mr. Whitmore has not explained
why the district court’s failure to resolve the challenge to his petition under the rubric of
summary judgment was improper.
Furthermore, even assuming, arguendo, that the district court erred by not formally
converting Mr. Whitmore’s motion, he has not shown that he was prejudiced because the
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magistrate judge considered the entire record, including his attached materials. Cf.
Johnson v. Weld Cnty., Colo., 594 F.3d 1202, 1214 (10th Cir. 2010) (“[W]e will still
affirm a grant of summary judgment [sua sponte] if the losing party suffered no prejudice
from the lack of notice.”). The district court was not required to credit Mr. Whitmore’s
personal view of the evidence. See, e.g., Parkhurst v. Lampert, 339 F. App’x 855, 862
(10th Cir. 2009) (rejecting “a contention made in [a] summary judgment response brief,
which was . . . a conclusory, self-serving statement unsupported by any evidence”); see
also Wilson v. Oklahoma, 363 F. App’x 595, 613 (10th Cir. 2010); cf. United States v.
Triplett, 402 F. App’x 344, 347 (10th Cir. 2010) (“[The defendant] fails to point to any
evidence other than his self-serving statements to support his claim that his plea was
coerced.”). Instead, even under a summary judgment standard, Mr. Whitmore was
entitled only to the “reasonable inferences” arising from the evidence. Jones v. United
Parcel Serv., Inc., 674 F.3d 1187, 1195 (10th Cir. 2012) (emphasis added) (quoting Baty
v. Willamette Indus., Inc., 172 F.3d 1232, 1241 (10th Cir. 1999)) (internal quotation
marks omitted). The district court found no support, in considering much of the
uncontradicted record, for Mr. Whitmore’s assertions. For these reasons, we reject his
procedural contention.
B
On the merits, regarding his first substantive claim for relief, Mr. Whitmore argues
that reasonable jurists could debate the district court’s adoption of the magistrate judge’s
recommendation—specifically, that the claim be dismissed on the basis that there was
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sufficient evidence to support his disciplinary charge.
We begin by emphasizing that “[i]t 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.” Howard v. U.S. Bureau Of
Prisons, 487 F.3d 808, 811 (10th Cir. 2007) (quoting Mitchell v. Maynard, 80 F.3d 1433,
1444 (10th Cir. 1996)) (internal quotation marks omitted). 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 v.
McDonnell, 418 U.S. 539, 556 (1974). Rather, in such circumstances, the inmate must
receive, at bottom:
(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.
Howard, 487 F.3d at 812 (quoting Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445,
454 (1985)) (internal quotation marks omitted) [the “Wolff factors”]. 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 454) (internal quotation marks omitted). We must remember
that the “relevant inquiry is what process [Mr. Whitmore] received, not whether the
[State] decided [his] case correctly.” Swarthout v. Cooke, 131 S. Ct. 859, 863 (2011) (per
curiam).
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Mr. Whitmore suggests that there was no evidence to support his write-up for
being in an “unauthorized area.” However, he first seems to claim that, as a matter of
law, he could not have been guilty of a violation because he went to the DHO during what
he terms an “[i]nmate movement,” a time where there were no technical or physical
boundary restrictions. Aplt. Opening Br. at 3. His contentions are belied by the record
and the applicable rule at issue—viz., ODOC Rule 03-1.
ODOC Rule 03-1 defines the instant offense as being “present in a restricted
area,”3 or being present “[o]utside defined boundaries . . . as defined by [the] facility.”
(Emphasis added.) Although there appear to be two distinct means of establishing a
violation of this rule, its essence is clear: a prisoner may not venture into an area where he
has no right to be consistent with his institutional commitment. Indeed, a panel of this
court has assumed that an inmate’s presence in an area outside of his assigned prison unit
constitutes a violation of ODOC Rule 03-1. See Mitchell v. Howard, 419 F. App’x 810,
815 (10th Cir. 2011) (“[The inmate] was charged with being present in an unauthorized
area, in violation of ODOC Rule 03–1. . . . [And it is] clear that [the inmate] was not
authorized to be at the [place he was spotted].”); cf. Bostic v. Carlson, 884 F.2d 1267,
1271 (9th Cir. 1989) (holding in the alternative that there was sufficient evidence that the
appellant was in an “unauthorized area” under applicable prison regulations, where the
record showed that a prison staff member “observed [him] talking to another inmate in
3
A “restricted area” by definition is “an off limits area.” Webster’s Third
New International Dictionary 1937 (1981).
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the unauthorized area and . . . he made no attempt to enter his proper housing unit after
[a] free-movement period ended”); Davis v. Waters, 59 F.3d 166, 1995 WL 371680, at
*1–2 (4th Cir. June 20, 1995) (per curiam) (unpublished table decision) (holding that
there was sufficient evidence that a prisoner was in an “unauthorized area” where he “left
his assigned cell” without permission (quoting applicable correctional facility rules)
(internal quotation marks omitted)).
In this case, the evidence showed that Mr. Whitmore was released from his
assigned “unit” to attend a computer class, but instead of reporting to the class, went to
the DHO without permission. If true, such conduct would unquestionably constitute a
violation of ODOC Rule 03-1. That is, although Mr. Whitmore generally suggests that
the DHO was not an off-limits area at the time he went there, see Aplt. Opening Br. at 7,
he cannot reasonably disagree that if he had no permission to be there—even during an
“inmate movement”—his presence would constitute a violation of the rule. Tellingly, as
the district court pointed out, Mr. Whitmore’s “own statement . . . that he was told to
come to the DHO’s office by Correctional Officer Farnsworth . . . indicates that [he]
knew he was not supposed to be at the DHO[] office unless directed.” R. at 268; cf. Aplt.
Opening Br. at 7 (“The Court totally misses the fact that the Appellant said that he was
told to go to DHO by an officer.” (capitalization altered)).
We now turn to the core of his first, substantive argument. Despite the fact that
Mr. Whitmore claimed that he was directed to go to the DHO, the disciplinary hearing
officer found evidence to the contrary and concluded that Whitmore was guilty of being
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present in an unauthorized area. “The ‘some evidence’ standard is not exacting,”
Mendoza v. Tamez, 451 F. App’x 715, 717 (10th Cir. 2011); rather, the record must reveal
only a “modicum of evidence” sufficient to support the disciplinary violation resulting in
the loss of good time credits, Hill, 472 U.S. at 455.
Like the district court, we easily conclude that there was enough evidence in the
record to satisfy the foregoing standard. Specifically, the statements given by three
correctional officers demonstrated that Mr. Whitmore was authorized only to attend a
computer class, and instead of going to the computer class, he went to the DHO without
permission. See R. at 244 (relying on statements offered at the disciplinary hearing); cf.
Gamble v. Calbone, 375 F.3d 1021, 1032 (10th Cir. 2004) (holding that “no evidence
support[ed] a finding” that prisoners attempted to obtain money for an improper purpose
because there was no suggestion that they acted with fraudulent intent, an element of the
charge (emphasis added)), superseded by statute on other grounds as stated in Magar v.
Parker, 490 F.3d 816, 818–19 (10th Cir. 2007). Consequently, we conclude that there
was sufficient evidence that Mr. Whitmore was in an “unauthorized area” as defined by
the ODOC Rules, and reasonable jurists could not debate the district court’s conclusion
that “some evidence” supports his conviction.
C
Mr. Whitmore argues on appeal, as he did below, that he was not permitted the
opportunity to present a witness statement at the disciplinary hearing. Further, he
contends that he “requested video tape footage but was denied the right to view the
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evidence.” R. at 244. The magistrate judge rejected Mr. Whitmore’s claim that he was
not permitted to present the witness statement at the disciplinary proceedings on the
ground that the record demonstrates that he was simply unable to secure the witness
statement that he desired—not prevented from presenting it. Moreover, the magistrate
judge found that the record further demonstrated that videotape footage was played
during the hearing and that it showed Mr. Whitmore in the unauthorized area.
As noted, in order for a disciplinary action resulting in the loss of good time credits
to accord with the requirements of due process, an inmate must be given “advance written
notice of the disciplinary charges” and “an opportunity . . . to call witnesses and present
documentary evidence in his defense.” Howard, 487 F.3d at 812 (quoting Hill, 472 U.S.
at 454) (internal quotation marks omitted). We address each of Mr. Whitmore’s
contentions in turn but, like the magistrate judge and the district court, conclude that the
constraints of due process were not unshackled in the adjudication of Mr. Whitmore’s
disciplinary violation.
1
First, Mr. Whitmore claims that he was denied the ability to present evidence—
specifically, the statement of a witness—at the hearing. As a threshold matter, the record
demonstrates that Mr. Whitmore did not initially want to present any witness testimony,
but only wanted to bring statements made by witnesses. See R. at 106 (Investigator’s
Rep., dated Aug. 11, 2010). And, at the time of the hearing, Mr. Whitmore did, in fact,
present one witness statement—the statement of a fellow inmate suggesting that Officer
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Farnsworth told Mr. Whitmore to go to the DHO.
Nevertheless, Mr. Whitmore contends that, in effect, he was blindsided by the
hearing and unconstitutionally prevented from offering the statement of “[an]other”
witness when the hearing officer refused to postpone the hearing while that witness was
in the restroom. Aplt. Opening Br. at 13. First, Mr. Whitmore does not identify this
“other” witness, or the purported content of the witness’s statement. But, in any event,
we agree with the district court that “[t]he . . . Investigator’s Report reveal[s] that [Mr.
Whitmore] was informed of the charge and evidence against him, the date and time of the
hearing, [and his] right to call witnesses at the hearing.” R. at 269. In fact, the record
indicates that Mr. Whitmore was given “approximately 24 hours [to prepare] after being
notified of the charge.” Id.Upon review of the record, we conclude that Mr. Whitmore was given adequate
advanced written notice of the disciplinary charges and an opportunity to present
evidence.4 See Muhammad v. Wiley, 330 F. App’x 165, 167 (10th Cir. 2009) (noting that
4
Mr. Whitmore argues that even though he was provided with notice and
twenty-four hours to prepare, he was “still . . . denied” the right to present testimony in
contravention of due-process requirements because the hearing officer could have simply
waited until his “other” witness got out of the restroom to testify. Aplt. Opening Br. at
14. Because simply postponing the hearing in order for the witness to arrive would not be
“unduly hazardous to institutional safety or correctional goals,” Mr. Whitmore reasons,
the hearing officer was not justified in refusing him the opportunity to present his witness.
Wolff, 418 U.S. at 566. We reject this argument.
First, to the extent that this argument is predicated upon the notion that Mr.
Whitmore was unable to present “live” testimony, as noted, the record indicates that Mr.
(continued...)
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due process requires “written notice of the claimed violation delivered to the prisoner at
least twenty-four hours before a disciplinary hearing”); id. at 168 (holding that inmate
was afforded an adequate opportunity to present a defense where, inter alia, he was
notified of the charges against him and the time of the hearing well in advance).
2
Mr. Whitmore contends that he was denied the opportunity to view a videotape
4
(...continued)
Whitmore said nothing about an intention to present that type of evidence at the hearing.
Rather, it indicates his desire to offer written statements. See R. at 106 (“Offender states
he will bring statements to hearing.” (emphasis added)).
Second, and more importantly, the hearing officer was not obliged to postpone the
hearing simply because Mr. Whitmore failed to prepare his “other” witness’s statement in
time. See R. at 122 (Offender Misconduct Appeal Form, dated Oct. 26, 2010) (noting that
Mr. Whitmore confirmed “during the hearing” that he was “unable to get the statement
from [his] witness” and finding that it is “[Mr. Whitmore’s] responsibility to ensure” that
his evidence was in order). Ordinarily, we will not impose procedural constraints on a
prison’s administration of a disciplinary proceeding absent a showing that the disciplining
officials acted with a measure of arbitrariness, obstruction, or bad faith that infected the
proceeding with unfairness. See Wolff, 418 U.S. at 566 (“The operation of a correctional
institution is at best an extraordinarily difficult undertaking.”); see also Sandin v. Conner,
515 U.S. 472, 482 (1995) (“[F]ederal courts ought to afford appropriate deference and
flexibility to state officials trying to manage a volatile environment.”); cf. Brown v.
Braxton, 373 F.3d 501, 507–08 (4th Cir. 2004) (“It makes sense to treat inmate witnesses
differently from other types of witnesses . . . .”). Nothing of that sort has been
demonstrated in this case.
Finally, “errors made by prison officials in denying witness testimony at official
hearings are subject to harmless error review.” Grossman v. Bruce, 447 F.3d 801, 805
(10th Cir. 2006). As noted in text, Mr. Whitmore fails to explain the substance of the
“other” witness’s statement. Consequently, we would be hard-pressed to conclude that
Mr. Whitmore was prejudiced by the failure of the disciplinary hearing officer to delay
the proceeding so that he could get a statement from that witness.
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that he claims would exonerate him. The district court rejected this claim. Although
adopting a different rationale, we agree with the district court’s ultimate rejection of this
claim.
In his habeas petition, Mr. Whitmore states that he requested the videotape partly
because it would have shown that “[he] was not in a[n] unauthorized area.” R. at 11. The
magistrate judge concluded that the record demonstrates that Mr. Whitmore viewed this
tape with the hearing officer and, in any event, he did not argue that the tape would
exonerate him because he essentially admitted to being present in the DHO. Mr.
Whitmore objected, claiming that the tape would exonerate him because it would also
show that Officer Farnsworth instructed him to go to the DHO. The district court denied
the objection, and concluded that Mr. Whitmore had waived the foregoing argument
because he raised it for the first time in his objections to the magistrate judge’s report and
recommendation.
We respectfully disagree with the district court’s procedural rejection of Mr.
Whitmore’s argument on waiver grounds, but ultimately conclude that he has failed to
make a substantial showing of a denial of a constitutional right. Accordingly, Mr.
Whitmore is still not entitled to a COA. Mr. Whitmore clearly averred in his original
habeas petition that the video would show that the “[correctional officer] told [him] to go
to [the] DHO.” R. at 11. And, of course, even though Mr. Whitmore did not explicitly
use the district court’s language—viz., that the tape would “exonerate” him—we must
accord his briefing “a solicitous construction” in light of his pro se status. Van Deelan v.
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Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007). In that respect, we find it hard to
conceive of any more “exonerating” evidence than a tape that allegedly shows Officer
Farnsworth instructing Mr. Whitmore to go to the DHO, when the officer denied giving
such an instruction.
Nonetheless, it is clear that Mr. Whitmore’s claim is meritless and, therefore, he
cannot even begin to make a substantial showing of the denial of a constitutional right on
this ground. The record demonstrates that he was given the opportunity to “present
relevant documentary evidence during the hearing,” R. at 122, and that the videotape at
issue was considered by the hearing officer, see id. at 245. Additionally, nowhere in the
record does it appear that Mr. Whitmore sought to further review the contents of the tape
in order to present additional evidence. We need not be bound by Mr. Whitmore’s
conclusory averments to the contrary. See Tigert v. Higgins, 290 F. App’x 93, 100 (10th
Cir. 2008) (rejecting the petitioner’s “bald averments to support his claim that he made
any kind of request for review of evidence related to [an] alleged clerical error” where the
record refuted that position). Thus, we reject his due-process claim predicated upon the
allegation that certain videotape evidence was not considered during the disciplinary
hearing. In other words, he has failed to make a substantial showing of the denial of a
constitutional right.
D
Mr. Whitmore also argues that he was denied an impartial decisionmaker because
the hearing officer was biased, as demonstrated by other officers’ “retaliatory” conduct.
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The magistrate judge rejected this argument, finding that Mr. Whitmore had failed to
“identify any specific acts of retaliation,” R. at 246, or “allege facts sufficient to
demonstrate [that] the risk of unfairness was intolerably high or the existence of actual
bias,”5 id. at 247.
Mr. Whitmore challenges the district court’s finding that he failed to offer
sufficient evidence demonstrating the partiality of the hearing decisionmaker. He claims
that the decisionmaker could not have been impartial because he “deni[ed] . . . [Mr.
Whitmore’s] right to call [his] witness.” Aplt. Opening Br. at 18. Additionally, Mr.
Whitmore claims that bias seeped into the proceeding because Officer Kirkpatrick, who
offered a statement regarding the incident at issue, was angry with him based upon a prior
disciplinary matter, see id. at 19, and because the hearing officer in the instant case had
presided over a prior disciplinary proceeding involving Mr. Whitmore and was a
colleague of the officers who submitted affidavits in support of the instant charge, see id.
at 19–20. We cannot agree with Mr. Whitmore.
First, we have already found a lack of merit in Mr. Whitmore’s claims that he was
denied the opportunity to present witness statements. See Section II.C.1, supra. The
same allegations do not constitute competent evidence of bias. The record is clear that
5
Although Mr. Whitmore styles this claim as a claim for “retaliation,” we
construe it as an allegation that his due-process rights were violated due to a high degree
of alleged bias that permeated his disciplinary hearing. See Aplt. Opening Br. at 18
(“[T]he District Court erred in its recitation or understanding of the fact about the
impartiality of decisionmaker.” (capitalization altered)).
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Mr. Whitmore’s allegations and statements were considered, but the hearing officer
simply found more credible the statements of the correctional officers. See Morgan v.
Quarterman, 570 F.3d 663, 668 (5th Cir. 2009) (rejecting an inmate’s allegations that the
hearing officer demonstrated partiality or bias by restricting the scope of the inmate’s
questioning of the charging officer); cf. Jordan v. Wiley, 411 F. App’x 201, 210 (10th Cir.
2011) (suggesting that bias may be found where the hearing officer assigns “categorical[]
credib[ility]” to the statements of prison officials).
Mr. Whitmore’s other averments of bias are equally baseless. Generally, “in order
to comport with due process, . . . the decisionmaker must be impartial.” Gwinn v.
Awmiller, 354 F.3d 1211, 1219 (10th Cir. 2004). “[H]onesty and integrity are presumed
on the part of a tribunal, [and] there must be some substantial countervailing reason to
conclude that a decisionmaker is actually biased with respect to factual issues being
adjudicated.” Id. at 1220 (quoting Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 518
(10th Cir. 1998)) (internal quotation marks omitted).
Here, as the magistrate judge noted, Mr. Whitmore’s attempt to tie the alleged bias
of Officer Kirkpatrick to this case is unavailing. In the first place, he fails to clearly set
forth the relevant facts from the prior incident from which he alleges the bias arose. As
best we can tell from carefully and liberally reviewing his brief, Mr. Whitmore’s basic
contention is that the bias arose from a previous incident where Officer Kirkpatrick
submitted a misconduct charge against him that was ultimately reversed on appeal, and,
during the disciplinary hearing relating to that charge, she “butt[ed ]in” and contradicted
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Mr. Whitmore’s assertion that he had not received notice of the hearing. Aplt. Opening
Br. at 19. Moreover, as discussed, Mr. Whitmore alleges that the disciplinary hearing
officer presided over a prior misconduct charge involving Mr. Whitmore and was a
colleague of the officers who submitted affidavits in support of the instant charge.
These facts do not show actual bias in the proceeding under review. Even if
Officer Kirkpatrick harbored some ill will against Mr. Whitmore based upon their
interaction in connection with the prior misconduct charge, that fact hardly indicates that
the disciplinary hearing officer harbored any bias against Mr. Whitmore in his resolution
of the disciplinary charge at issue here.6 Indeed, Mr. Whitmore’s finding of guilt was
supported by the statements of other correctional officers not shown to be directly
involved in the prior misconduct charge. Moreover, “[t]he fact that [staff] members had
previously adjudicated cases against [the inmate], or had been the subject of his [prior]
complaints, does not [without more] constitute proof of bias.” Wilson-El v. Finnan, 263
F. App’x 503, 505 (7th Cir. 2008); see Piggie v. Cotton, 342 F.3d 660, 667 (7th Cir.
2003) (noting that to adopt “a rule automatically disqualifying any [prison officer] from
adjudicating a prisoner’s habitual case because he or she was a witness to events
underlying one of the prisoner’s prior convictions would be infeasible”); cf. Gwinn, 354
6
Mr. Whitmore notes in passing that an (unspecified) “[a]uthor/[r]eporting
officer” regarding the misconduct charge at issue here was the “boyfriend” and “possibly
husband by now” of Officer Kirkpatrick. Aplt. Opening Br. at 19. However, Mr.
Whitmore does not explain what relevance, if any, this fact has to his bias argument.
Therefore, we do not pursue the matter further.
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F.3d at 1220 (finding evidence of bias where a member of the hearing panel adjudicating
the claim under consideration was named as a defendant in a concurrent federal action on
the same subject matter).
And the fact that the reporting officers and the adjudicating officer were, generally
speaking, professional colleagues does not demonstrate that the adjudicating officer had a
direct connection to or interest in the incident at issue, or that this officer was predisposed
towards reaching a result adverse to Mr. Whitmore. See Allen v. Parke, 114 F. App’x
747, 752 (7th Cir. 2004) (“Merely working, or even being friends with the victim is mere
tangential involvement, which does not require disqualification of the decision-maker[;]
otherwise an outside hearing body would need to be brought in every time an inmate was
charged with a crime against a prison official.” (citation omitted)). Consequently, this
ground is without merit, and reasonable jurists could not disagree with the district court’s
resolution of it.
E
Mr. Whitmore filed various motions supplementing his habeas petition. He filed
(1) a motion seeking a stay of the proceedings and an order requiring the State to produce
audiotapes and other evidence allegedly corroborating his claims; (2) a motion seeking to
amend his request for a stay; and (3) a motion seeking permission to file a “hybrid”
petition, adding a retaliation claim under 42 U.S.C. § 1983. The magistrate judge
recommended that the motions be denied and the district court accepted the
recommendation.
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Mr. Whitmore’s motions seeking a stay and to amend his stay motion primarily
sought additional discovery to support his due-process claims. See Aplt. Opening Br. at
22 (“The District Court failed to consider the reasons behind Appellant’s motion to stay
proceedings, and motion to amend his motion to stay.”). The magistrate judge found that
he record was sufficient for disposition of Mr. Whitmore’s claims and the district court
agreed. Having thoroughly considered the record in assessing whether to grant a COA
regarding Mr. Whitmore’s habeas claims, we are hard-pressed to discern any error in the
district court’s decision to deny these discovery-related motions. See Han Tak Lee v.
Glunt, 667 F.3d 397, 404 (3d Cir. 2012) (suggesting that discovery in habeas cases should
be ordered where the requested evidence is “essential for the habeas petitioner to develop
fully his underlying claim” (quoting Williams v. Beard, 637 F.3d 195, 209 (3d Cir. 2011))
(internal quotation marks omitted)); accord Stevens v. McBride, 489 F.3d 883, 899 (7th
Cir. 2007). And Mr. Whitmore has not demonstrated the need for the additional material
that he requests.
Finally, Mr. Whitmore sought permission to file “claims of retaliation and
conspiracy pursuant to [42 U.S.C.] § 1983” based upon some of the same conduct that
constituted the basis of his habeas petition. R. at 249; see Dist. Ct. Doc. No. 22, at 1–2
(Mot. for Am. Hybrid Civil Rights Compl., filed Sep. 20, 2011) (“[Petitioner] suddenly
remembered about a case he read, and fortunately he jotted some notes down that
talked/explained about the ‘hybrid’ [as a vehicle for a retaliation complaint].”). The
magistrate judge recommended that the district court deny this motion because this circuit
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“has long recognized the distinct purposes of habeas actions brought pursuant to 28
U.S.C. § 2241 and civil rights actions brought pursuant to 42 U.S.C. § 1983.” R. at 249.
More specifically, the magistrate judge noted that § 2241 actions contain different
procedural requirements than § 1983 actions, and thus claims based upon the two are not
cognizable in the same proceeding. After considering Mr. Whitmore’s objection to this
recommendation, the district court overruled it and denied the motion.
To the extent that Mr. Whitmore was seeking damages relief through his habeas
petition, the district court plainly did not err in refusing him that option. By definition,
habeas corpus in the instant context is limited to challenges to “the execution of a
sentence,” Licon v. Ledezma, 638 F.3d 1303, 1311 (10th Cir. 2011) (quoting Bradshaw v.
Story, 86 F.3d 164, 166 (10th Cir. 1996)) (internal quotation marks omitted); it is not
meant to provide compensation for the “circumstances of confinement,” Muhammad v.
Close, 540 U.S. 749, 750 (2004) (per curiam).
Furthermore, it is true that civil actions under § 1983 and habeas actions have
different procedural requirements. See, e.g., 1 Hertz & Liebman, supra, § 7.1[b], at 373
n.49 (noting that “[t]here are important procedural differences between habeas corpus and
section 1983 actions”). However, we have previously permitted prisoners to lodge both §
2241 claims and § 1983 claims in the same filing. See, e.g., Ellibee v. Feleciano, 374 F.
App’x 789, 790 (10th Cir. 2010); cf. Richards v. Bellmon, 941 F.2d 1015, 1019 n.3 (10th
Cir. 1991) (noting that “[a] single complaint may seek relief partly under § 2254 and
partly under § 1983”); Wiggins v. N.M. State Supreme Court Clerk, 664 F.2d 812, 816
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(10th Cir. 1981) (“[T]he Supreme Court [has] held that although a [§] 1983 claim of
constitutional deprivation could be litigated simultaneously with a federal habeas corpus
action, joinder of the actions is not required.”); Henderson v. Sec’y of Corr., 518 F.2d
694, 695 (10th Cir. 1975) (per curiam) (considering a claim for damages under § 1983
after the district court recharacterized a prisoner’s complaint entirely as a habeas petition,
because the district court should have permitted the prisoner to maintain his damages
claims, and convert only those claims under § 1983 that constituted challenges to “the
length of . . . custody and . . . [requested] immediate or speedy release”). If an inmate
complies with the applicable procedural requirements (including those in the Prison
Litigation Reform Act) in asserting a claim under § 1983, ordinarily he may assert such a
claim in the same filing with his habeas claims.
However, even assuming, arguendo, that Mr. Whitmore was actually seeking to
assert a separate § 1983 retaliation claim as an amendment to his filing consisting of his
habeas claim, and the district court misconstrued the nature of his amendment request,
Mr. Whitmore is not entitled to any relief from us in the context of this COA proceeding.
We are mindful that, in the COA sphere, our focus is on the district court’s resolution of
Mr. Whitmore’s habeas petition. Irrespective of any procedural error that the district
court may have made concerning Mr. Whitmore’s proposed § 1983 claim, Mr. Whitmore
still would have to link any such error to an alleged denial of a constitutional right that is
cognizable in habeas and alleged in his petition, and also make a substantial showing of
the denial of that right. This he has not done. Indeed, Mr. Whitmore has not even
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endeavored to demonstrate that the district court’s denial of his motion to add a § 1983
retaliation claim was material to the district court’s resolution of the merits of his habeas
petition. In sum, Mr. Whitmore has utterly failed to make the requisite showing for the
grant of a COA based upon the district court’s action on this amendment motion.7
III
For the foregoing reasons, we DENY Mr. Whitmore a COA and DISMISS this
matter.
Entered for the Court
JEROME A. HOLMES
Circuit Judge
7
In fact, it is unlikely that Mr. Whitmore could establish that he actually was
harmed with respect to pursuing a civil rights retaliation claim under § 1983. The district
court did not purport to evaluate the merits of any such claim, much less adjudicate and
dismiss the claim with prejudice. By its terms, the court’s judgment relates only to Mr.
Whitmore’s habeas petition. Thus, that judgment itself does not prevent Mr. Whitmore
from commencing a separate § 1983 action based upon alleged retaliation. However, we
do not opine on whether other possible procedural impediments—such as the applicable
statute of limitations—might affect Mr. Whitmore’s ability to bring such an action.
Because we are not permitted to act as Mr. Whitmore’s advocate, see, e.g., Jordan v.
Sosa, 654 F.3d 1012, 1018 n.8 (10th Cir. 2011), we leave this matter for his consideration
and investigation.
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