Kucera v. Terrell , 214 F. App'x 729 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
December 15, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JAM ES KUCERA, JR.,
Petitioner - A ppellant, No. 06-3304
v. (D. Kansas)
DUKE TERR ELL, W arden, USP- (D.C. No. 06-CV-3208-RDR)
Leavenworth,
Respondent - Appellee.
OR D ER AND JUDGM ENT *
Before TA CH A, Chief Circuit Judge, HA RTZ, and TYM KOVICH, Circuit
Judges.
James Kucera, an inmate at the United States Penitentiary in Leavenworth,
Kansas, applied for a writ of habeas corpus under 28 U.S.C. § 2241 from the
United States D istrict Court for the D istrict of Kansas. The district court
dismissed his application, and he appeals. W e have jurisdiction under 28 U.S.C.
§ 1291. See M cIntosh v. U. S. Parole Comm'n, 115 F.3d 809, 810 n.1 (10th Cir.
*
After examining the brief 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not binding precedent except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1997) (“[A] certificate of appealability . . . is not required . . . to appeal a final
order in a proceeding under 28 U.S.C. § 2241.”). W e affirm.
M r. Kucera raises three related issues on appeal: (1) that his Sixth
Amendment right to confront witnesses at his disciplinary hearing was denied; (2)
that the prison administration and the disciplinary hearing officer denied his
constitutional right to procedural due process and violated prison regulations
when they did not permit him to call particular witnesses at his disciplinary
hearing; and (3) that 28 C.F.R. § 541.17, a Bureau of Prisons regulation
governing prison disciplinary hearings, is unconstitutional.
The first of these issues is easily resolved. The Sixth Amendment right to
confront one’s accusers is available only in criminal trials. “Prison 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. M cDonnell, 418
U.S. 539, 556 (1974); Taylor v. Wallace, 931 F.2d 698, 701 (10th Cir. 1991)
(“Wolff does not require the confrontation and cross-examination of witnesses in
prison disciplinary proceedings.”).
M r. Kucera’s second claim similarly lacks merit. As the district court
found, all witnesses that M r. Kucera formally requested were called at his
disciplinary hearing. Although on appeal he contends that prison officials
physically prevented him from writing the names of his requested witnesses on
the required form, he did not raise this contention in the district court, and he
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cannot present it now for the first time. See Parker v. Scott, 394 F.3d 1302, 1307
(10th Cir. 2005).
As for his third claim, M r. Kucera’s challenge to 28 C.F.R. § 541.17 in
district court was based exclusively on Crawford v. Washington, 541 U.S. 36(2004), a Sixth Amendment case. But as we have noted, the Sixth Amendment
does not guarantee prisoners the right to confront their accusers in a disciplinary
hearing. M r. Kucera attempts to mount a somewhat broader attack on the
regulation on appeal, but because he did not raise these arguments before the
district court, he cannot do so now. See Parker, 394 F.3d at 1307.
W e AFFIRM the district court’s judgment.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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