                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           APR 21 2004
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    PETER C. AQUIAR,

                  Petitioner-Appellant,

    v.                                                    No. 02-2348
                                                (D.C. No. CIV-02-677 BB/KBM)
    LAWRENCE TAFOYA, Warden,                               (D. N.M.)
    Southern New Mexico Correctional
    Facility; ATTORNEY GENERAL
    FOR THE STATE OF NEW MEXICO,

                  Respondents-Appellees.


                              ORDER AND JUDGMENT          *




Before BRISCOE and McKAY , Circuit Judges, 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      This order and judgment is not binding precedent, except under the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.
       Petitioner Peter C. Aquiar, a state prisoner appearing pro se, appeals the

district court’s denial of habeas relief. Although petitioner filed his habeas

petition under 28 U.S.C. § 2254, the district court properly construed the petition

(seeking restoration of 902 days of earned credit) as challenging the execution of

his sentence under 28 U.S.C. § 2241.      See Montez v. McKinna , 208 F.3d 862, 865

(10th Cir. 2000).   1



       Our jurisdiction over petitioner’s appeal arises under 28 U.S.C. § 1291.

We review de novo the district court’s dismissal of a § 2241 habeas petition,

see Patterson v. Knowles,    162 F.3d 574, 575 (10th Cir. 1998), and we apply the

standards set forth under 28 U.S.C. § 2254(d) to the state court decision.    2
                                                                                  We

conclude that there is insufficient evidence in Mr. Aquiar’s prison disciplinary

record to meet the “some evidence” standard established in        Superintendent,

Massachusetts Correctional Institution, Walpole v. Hill       , 472 U.S. 445, 454

(1985), and that the state court decision disposing of Mr. Aquiar’s claim was

therefore “based on an unreasonable determination of the facts in light of the


1
      The dissent argues that the decision in Montez is suspect. Montez ,
however, is the law of this circuit, and we must follow it unless en banc review or
a Supreme Court ruling directs us otherwise.
2
       This standard of review mirrors our standard in § 2254 cases. After we
grant a certificate of appealability, we review de novo the district court’s denial
of a state inmate’s petition, subject to any deference due to the state court under
28 U.S.C. § 2254(d). See Wansing v. Hargett , 341 F.3d 1207, 1210 (10th Cir.
2003).

                                            -2-
evidence presented in the State court proceeding.”   See § 2254(d)(2).

Accordingly, we reverse and remand for further proceedings.


                                   BACKGROUND

      On October 22, 2001, Lt. K. Valentine, a corrections officer, filed a report

that he had concluded an investigation involving Mr. Aquiar and another inmate,

Marcus Carter. The report charged Mr. Aquiar with “A/32 - Attempt or

Complicity” and “A/13 - Possession of Escape Paraphernalia.” R., Doc. 13,

Ex. C. Lt. Valentine’s report contained the following statement:

      On October 22, 2001, at approximately 1000, I, STG Lt. K.
      Valentine, concluded an investigation involving Inmate Aquiar,
      Peter, NMCD #38801 and Inmate Carter, Marcus, NMCD #42543.
      During the course of this investigation, it was discovered that an
      attempted escape had been planned by Inmate Aquiar and Inmate
      Carter. The plan was for Inmate Carter to escape the institution at
      the same time that Inmate Aquiar was to parole out of this facility.
      Escape paraphernalia was found in the possession of Inmate Aquiar
      which consisted of a book containing flight schedules entering
      Canada and addresses in Canada. Some of this information was
      found out through confidential informants. This escape plan
      included the aid of an Officer, which was substantiated by physical
      evidence.

Id. A disciplinary officer took statements from Mr. Aquiar, Mr. Carter, and five

corrections officers. The disciplinary officer’s investigation report reflects the

following: Inmate Aquiar gave a verbal statement that he was advised that the

escape paraphernalia identified in Lt. Valentine’s report was not found in his

property; Officers Valentine, Pennington, Priddy, and Seyler confirmed via verbal

                                           -3-
statements that the escape paraphernalia was found in Inmate Carter’s property,

not Inmate Aquiar’s property; Lt. Valentine gave a verbal statement that “Inmate

Aquiar was the leadership in planning this escape;” Capt. Seyler gave a verbal

statement that “during the investigation it was discovered that Inmate Aquiar

initiated the whole plan and brought the staff member into the plan;” Inmate

Carter gave a verbal statement that “he did not make any escape plans with

Inmate Aquiar and had no knowledge of the plans. Inmate stated that he does not

even know when Inmate Aquiar was going to parole.”         Id. at Ex. D.

       The disciplinary officer recommended that the A/13 charge (possession of

escape paraphernalia) be dismissed based on the four verbal statements from the

officers that the escape paraphernalia was not found in Mr. Aquiar’s property.

Id. at Ex. F. The disciplinary officer decided that the A/32 charge should proceed

to a major level hearing.    Id. At the hearing on October 31st, Mr. Aquiar denied

the charges in Lt. Valentine’s report.    Id. at Ex. E. He also submitted an affidavit

from Mr. Carter that reiterated that neither Mr. Aquiar nor any “Phantom Officer”

was going to help Mr. Carter escape and that there was no physical evidence to

substantiate the claim.     Id. The hearing officer’s decision found Mr. Aquiar

guilty based on the following:

       1)     The written report by Lt. Valentine, STG, which states that
              inmate was found with escape paraphernalia in his property
              and that an investigation into the matter revealed the fact that


                                            -4-
             Inmate Carter, in conjunction with Inmate Aquiar and a staff
             member was planning an escape.
      2)     Verbal statement from Capt. Seyler which corroborates the
             report.

Id. at Ex. G. As a result, Mr. Aquiar lost 902 days of earned good time credit.

      On November 15, Mr. Aquiar filed an internal appeal of the decision.

On March 11, 2002, Mr. Aquiar filed a state petition for writ of habeas corpus.

The state district court denied the petition on May 6. Mr. Aquiar’s certiorari

petition, filed May 13, was denied by the New Mexico Supreme Court on May 20.

Mr. Aquiar filed his federal petition on June 11. The magistrate judge assigned to

the case recommended denial of relief on the petition, which was adopted by the

district court by final order entered December 11, 2002. Mr. Aquiar filed an

opening brief and application for certificate of appealability in this court on

February 13, 2003.


                                   DISCUSSION

      On June 3, 2003, we granted a certificate of appealability (COA) on five

issues relating to Mr. Aquiar’s disciplinary hearing (“June 3, 2003 COA Order”).

Because the district court erred on at least one of the COA issues, we need not

address the remaining issues. The dispositive issue is “Whether the evidence

against Petitioner in the record of the prison disciplinary proceeding meets that




                                          -5-
‘some evidence’ standard established by          Superintendent v. Hill , 472 U.S. 445

(1985).” June 3, 2003 COA Order.

       New Mexico inmates possess a liberty interest in earned credits,          see Brooks

v. Shanks , 885 P.2d 637, 641 (N.M. 1994), and are entitled to due process

protection prior to the loss of those credits.         See Wolff v. McDonnell , 418 U.S.

539, 557 (1974). When a prison disciplinary hearing may result in the loss of

earned credits, a prisoner 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 on and the reasons for the disciplinary action.

Mitchell v. Maynard , 80 F.3d 1433, 1445 (10th Cir. 1996) (citation omitted).

In addition, “revocation of good time does not comport with ‘the minimum

requirements of procedural due process,’ unless the findings of the prison

disciplinary board are supported by some evidence in the record.”            Hill , 472 U.S.

at 454 (citation omitted).

       The hearing officer relied on two pieces of evidence in finding Mr. Aquiar

guilty on his charge of helping Mr. Carter escape: Lt. Valentine’s report and a

verbal statement by Capt. Seyler corroborating the report. Lt. Valentine’s report

states that “it was discovered that an attempted escape had been planned by

Inmate Aquiar and Inmate Carter” and the disciplinary officer’s report reflects


                                                 -6-
that Capt. Seyler stated “during the investigation it was discovered that Inmate

Aquiar initiated the whole plan and brought the staff member into the plan.”

R., Doc. 13 at Exs. C, D. But the evidence that Lt. Valentine and Capt. Seyler

discovered is not disclosed anywhere in the record. Neither Lt. Valentine’s report

nor Capt. Seyler’s statement contains any actual evidence–specific facts upon

which they base their assertions. The report states that “physical evidence”

substantiates the escape plan, including the aid of an officer, but the record does

not disclose what that evidence might be.       Id. at Ex. C. No physical evidence was

introduced at the hearing.    Id. at Ex. E.

       In addition, there is a reference to “confidential informants” who supplied

“some of this information.”     Id. at Ex. C. But the record does not contain

a proffer made by prison officials as to what the informants could testify to, nor

is there even a simple summary of what the informants told prison officials. The

prison officials further failed to conduct any kind of reliability determination of

the confidential informants as required by      Taylor v. Wallace , 931 F.2d 698, 701

(10th Cir. 1991). “Due process requires that there be some evidence supporting

the disciplinary determination . . . . A bald assertion by an unidentified person,

without more, cannot constitute some evidence of guilt.”       Id. (quotation omitted) .

All that appears in the record here is a “bald assertion by an unidentified person,”

and a claim that unspecified physical evidence was found.


                                              -7-
       The only concrete evidence–the escape paraphernalia–is erroneously linked

to Mr. Aquiar in Lt. Valentine’s report. The hearing officer perpetuates this error

by relying on the escape paraphernalia as evidence for his decision. The

disciplinary officer had previously recommended that the charge that Mr. Aquiar

had possessed any escape paraphernalia be dismissed based on the testimony of

four officers, including Lt. Valentine, who stated that the escape materials were

not found in Mr. Aquiar’s possession, but were instead found in Mr. Carter’s

possession. Finally, the one eyewitness, Mr. Carter, the inmate who was

attempting to escape, testified verbally and through an affidavit that Mr. Aquiar

had nothing to do with any escape plan.

       Where prison officials say nothing more than we know an inmate was

planning an escape based on confidential informants and physical evidence, this

fails to satisfy even the relaxed standard of “some evidence.” In the     Hill case

establishing this standard, the Supreme Court concluded that “some evidence”

existed that the defendant committed an assault where the disciplinary board had

both a written report of an officer describing specific facts and his testimony.

See Hill , 472 U.S. at 456. That report and the officer’s testimony disclosed that

the officer had witnessed the immediate aftermath of a fight, discovering an

inmate who evidently had been assaulted.      Id. The officer saw the defendants

quickly leaving the scene, and no one else was nearby.       Id. This, the Court held,


                                            -8-
was some evidence that the defendants had committed the assault.      Id. at 457. In

contrast, in the instant case, we have no idea what the facts are in the possession

of the prison officials that led them to believe that Mr. Aquiar was planning to

help Mr. Carter escape. This is not sufficient to meet the “some evidence”

standard.

      The order of the district court entered December 11, 2002, is

REVERSED and the cause is REMANDED to the district court with instructions

to direct the restoration of Mr. Aquiar’s earned credits.

      The mandate shall issue forthwith.

                                                     Entered for the Court



                                                     Monroe G. McKay
                                                     Circuit Judge




                                          -9-
No. 02-2348, Aquiar v. Tafoya

Briscoe, Circuit Judge, dissenting:

      I respectfully dissent. In my view, the New Mexico state courts reasonably

concluded there was “some evidence” to support the disciplinary hearing officer’s

decision. I would affirm the district court’s denial of federal habeas relief.

      Aquiar, a New Mexico state prisoner, contends his prison disciplinary

conviction and the resulting loss of good time credits violated his due process

rights because there was no evidence to support the conviction. Because this

claim already has been considered and rejected by the New Mexico state courts,

our scope of review is extremely limited.   1
                                                Aquiar will be entitled to federal

habeas relief only if he can demonstrate the state courts’ ruling “was contrary to,

or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).


1
  I agree with the majority that we are bound by      Montez v. McKinna , 208 F.3d
862, 865 (10th Cir. 2000), to treat Aquiar’s petition as having been filed pursuant
to 28 U.S.C. § 2241. Montez does not, however, obligate us to apply a de novo
standard of review to the claims asserted in Aquiar’s petition. Indeed,      Montez
recognizes that some of the provisions of 28 U.S.C. § 2254 may apply to a § 2241
proceeding filed by a state prisoner.     See Montez , 208 F.3d at 866.
       In passing, I note that Montez is the only circuit decision I have found that
holds that a challenge by a state prisoner to the execution of his sentence must be
construed pursuant to § 2241. Other circuits deciding the issue have held that
such challenges must be construed pursuant to § 2254.         See Medberry v. Crosby ,
351 F.3d 1049, 1062 (11th Cir. 2003);      Cook v. New York State Div. of Parole ,
321 F.3d 274, 278 (2d Cir. 2003);      Singleton v. Norris , 319 F.3d 1018, 1023 (8th
Cir. 2003); Coady v. Vaughn , 251 F.3d 480, 484-85 (3d Cir. 2001);       Walker v.
O’Brien , 216 F.3d 626, 639 (7th Cir. 2000);      McFarlane v. Walter , 179 F.3d 1131,
1134 (9th Cir. 1999).
       Under clearly established Supreme Court precedent, a prison disciplinary

decision revoking a prisoner’s good time credits (assuming the prisoner has a

liberty interest in such credits) will satisfy due process concerns if it is “supported

by some evidence in the record.”      Superintendent v. Hill , 472 U.S. 445, 455

(1985). “This standard is met if there [i]s some evidence from which the

conclusion of the administrative tribunal c[an] be deduced.”         Id. (internal

quotations omitted). “Ascertaining whether this standard is satisfied does not

require examination of the entire record, independent assessment of the credibility

of witnesses, or weighing of the evidence.”         Id. “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. Importantly, the Court

explained why it adopted this minimal evidentiary standard:

       Prison disciplinary proceedings take place in a highly charged
       atmosphere, and prison administrators must often act swiftly on the
       basis of evidence that might be insufficient in less exigent
       circumstances. The fundamental fairness guaranteed by the Due
       Process Clause does not require courts to set aside decisions of
       prison administrators that have some basis in fact. Revocation of
       good time credits is not comparable to a criminal conviction, and
       neither the amount of evidence necessary to support such a
       conviction, nor any other standard greater than some evidence applies
       in this context.

Id. at 456 (internal citations omitted).

       After reviewing the record in this case, I am satisfied that the New Mexico

state courts reasonably applied the    Hill standard in rejecting Aquiar’s challenge to

                                              -2-
his disciplinary conviction. In finding Aquiar guilty, the disciplinary hearing

officer (DHO) cited two pieces of evidence. First, the DHO referred to Lt.

Valentine’s written misconduct report outlining the results of his investigation.

The report stated that Valentine had “discovered that an attempted escape had

been planned by Inmate Aquiar and Inmate Carter.” ROA, Doc. 13, Exh. C.

More specifically, the report stated “[t]he plan was for Inmate Carter to escape

the institution at the same time that Inmate Aquiar was to parole out of this

facility,” and that the “escape plan included the aid of an Officer, which was

substantiated by physical evidence.”   Id. Second, the DHO referred to a verbal

statement from Captain Seyler “that during the investigation it was discovered

that Inmate Aquiar initiated the whole plan and brought the staff member into the

plan.” Id. , Exh. D at 1; see id. , Exh. F. In my view, this evidence, considered

separately or together, supports the conclusion reached by the DHO.

      The majority cites this same evidence and reaches the opposite conclusion.    2



According to the majority, neither Valentine’s written misconduct report nor


2
   The majority purports to apply the standard of review set forth in § 2254(d)(2),
i.e., whether the state courts’ ruling was “based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.” It is
clear, however, that application of the     Hill “some evidence” standard does not
require a court to make any factual findings, and there is no indication in the
record on appeal that the New Mexico state courts did so. Thus, the appropriate
standard of review is the one set forth in § 2254(d)(1).    E.g. , Gomez v. Graves ,
323 F.3d 610, 612 (8th Cir. 2003) (applying § 2254(d)(1) standard of review to
similar challenge asserted by state prisoner).

                                          -3-
Seyler’s oral statement discloses the “facts upon which they base[d] their

assertions” that Aquiar was involved in an escape plan. Maj. Op. at 6. The

majority states that “[n]o physical evidence was introduced at the [disciplinary]

hearing” even though Valentine’s “report state[d] that ‘physical evidence’

substantiate[d] the escape plan.”    Id. In short, the majority concludes it is not

enough for a correctional officer to summarize the results of his or her

investigative findings. Instead, the officer must also detail or, better yet, present

to the DHO what the majority describes as “physical” or “concrete” evidence

supporting the officer’s findings. In the absence of such support, the majority is

unwilling to afford any weight to the officer’s report or statement.

       Not only does the majority position fail to give proper deference to the state

courts’ resolution of the issue, it effectively imposes an evidentiary standard more

demanding than the “some evidence” standard outlined in       Hill and simultaneously

ignores the concerns cited in   Hill in adopting that minimal standard. In

particular, the majority position runs contrary to the goal of “avoiding

burdensome administrative requirements that might be susceptible to

manipulation” by inmates, and transforms “the disciplinary process” from “a

means of rehabilitation” into a mini-criminal trial.   See Hill , 472 U.S. at 455.




                                             -4-
