                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          FEB 12 2001
                                  TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 FORTUNATUS B. WILCOX,

          Plaintiff-Appellant,
 v.
                                                        No. 00-6221
                                                  (D.C. No. 99-CV-854-T)
 FRANCISCO ALEMAN, JR.; L.E.
                                                        (W.D. Okla.)
 FLEMING, Warden, FCI El Reno;
 KATHLEEN HAWK SAWYER,

          Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before EBEL, KELLY and LUCERO, Circuit Judges.


      Fortunatus Wilcox is a federal prisoner seeking a writ of habeas corpus

under 28 U.S.C. § 2241. (Doc. 5.) Francisco Aleman, a prison guard, filed an

incident report stating that he had found illegal drugs in Wilcox’s locker. (Doc. 8,

attach. 4.) Wilcox denied this charge and argued that he had been framed by



      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Aleman. (Id.) A discipline hearing officer found that Wilcox had committed the

charge and, among other sanctions, disallowed 41 days of good conduct time. (Id.

attach. 9, at 4.)

       In his habeas petition, Wilcox alleges that he was denied due process at the

discipline hearing because (1) there was insufficient evidence to support the

disciplinary conviction; and (2) he was deprived of his right to call witnesses at

the hearing. (Tex. Doc. 19, at 4.) A magistrate judge recommended denying the

habeas petition, finding there was some evidence supporting the conviction and

there was no evidence other than his “conclusory allegation” that he was deprived

of the right to call witnesses. (Doc. 18, at 6.) The district court, on de novo

review, accepted the magistrate judge’s recommendations and denied the petition.

(Doc. 20, at 2.)

       Respondents do not challenge that Wilcox has a liberty interest in his

earned good conduct time. Cf. Jackson v. Warden, Admin. Maximum, No. 96-

1222, 1997 WL 158136, at *2 (10th Cir. Apr. 2, 1997) (“It is true that federal

inmates have a liberty interest in earned statutory good time credits.”). When a

discipline hearing may result in a loss of good conduct time, the Due Process

Clause requires that the 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


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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). In addition, the discipline hearing

officer’s findings must be supported by “some evidence in the record.” Id. Wilcox

does not challenge the hearing on the first or third grounds. We therefore consider

only the other two.

I. Some Evidence

      It is clear that the record provides some evidence to support the hearing

officer’s findings. Aleman’s incident report stated that he had found a bag of a

“brown tar like substance” in Wilcox’s locker that tested positive for

amphetamines. (Doc. 8, attach. 4.) Although Wilcox disputes the truth of this

report, the Due Process Clause requires no more in such a hearing. We therefore

affirm the district court’s rejection of Wilcox’s evidentiary argument.

II. Right To Call Witnesses

      Wilcox originally requested witnesses at his hearing (Doc. 8, attach. 9, at

2), but on the date of the hearing, he signed a waiver of this right. (Id. attach. 5.)

A prisoner may waive the right to call witnesses. See Mitchell v. Maynard, 80

F.3d 1433, 1445 (10th Cir. 1996). To be enforceable, however, a waiver must be

knowing and voluntary. See, e.g., United States v. Cockerham, — F.3d —, 2001

WL 43016, at *2 (10th Cir. 2001)(waiver of statutory right to appeal).


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      In this case, Wilcox contends he was coerced into waiving his right to call

witnesses. (Tex. Doc. 19 (habeas petition), at 2.) The magistrate judge suggested

that this was a “conclusory allegation” without any supporting facts or evidence.

(Doc. 18, at 5-6.) The district court likewise concluded that “petitioner’s

allegation is not supported by facts or evidence in the record” and “the record

contains no evidence to support petitioner’s claim that he was coerced.” (Doc. 20,

at 2.) Our review of the record, however, reveals what appears to be admissible

evidence in support of his allegation. Wilcox submitted a declaration under the

penalty of perjury (which he labeled an “affidavit”) stating that the discipline

hearing officer “DENIED Petitioner ALL Petitioner’s relevant witnesses against

the Petitioner’s FREEWILL and threatened to KICK PETITIONER OUT OF THE

HEARING.” (Doc. 12, ¶ 8.) Although this statement does not specifically refer to

Wilcox’s signing the waiver, we believe it could reasonably be seen as evidence

that the signing was coerced. Wilcox also asserts that there was an eyewitness to

this incident, but did not submit a declaration from her. (Id.) Nonetheless,

Wilcox’s own statement, even if uncorroborated, constitutes competent evidence

that he was coerced. Moreover, we have not found any evidence in the record

contradicting Wilcox’s assertion that he was threatened with expulsion from the

hearing. On this record, we cannot say that the allegations are so “palpably




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incredible” or “patently frivolous or false,” Blackledge v. Allison, 431 U.S. 63,

76 (1977), that summary dismissal is appropriate.

      Because there appears to be a material dispute of fact as to whether Wilcox

validly waived his right to call witnesses, the district court should conduct an

evidentiary hearing. See Walker v. Johnston, 312 U.S. 275, 285-86 (1941). We

therefore reverse the district court’s ruling on this issue and remand for further

proceedings. 1

III. Conclusion

      We GRANT Wilcox’s motion to proceed on appeal in forma pauperis. We

AFFIRM in part, REVERSE in part, and REMAND for further proceedings.

Respondents have represented that Wilcox’s projected release date is May 27,

2001. (Doc. 8 at 4.) Should Wilcox ultimately prevail on his habeas petition, we

presume the release date would be even sooner. We therefore instruct the district

court to proceed as expeditiously as possible on remand.

                                        ENTERED FOR THE COURT


                                        David M. Ebel
                                        Circuit Judge


      1
        We express no view on whether the discipline hearing officer could have
excluded Wilcox’s witnesses on relevance grounds. (Cf. Doc. 8, attach. 9, at 2.)
Although the magistrate judge suggested this might be the case (Doc. 18, at 6
n.3), the district court did not rule on this issue and Respondents have not raised
it on appeal as an alternate basis for affirming.

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