                                                                                F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                MAR 19 2004
                                      TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                     Clerk

 MILTON WALDEN,

           Petitioner-Appellant,
 v.                                                           No. 03-1461
 E. J. GALLEGOS, Warden,                                 (D.C. No. 03-Z-1571)
                                                            (D. Colorado)
           Respondent-Appellee.


                                   ORDER AND JUDGMENT*


Before KELLY, BRISCOE and LUCERO, Circuit Judges.


       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.

       Petitioner Milton Walden, a federal prisoner appearing pro se, appeals the district

court’s denial of his 28 U.S.C. § 2241 habeas petition challenging a prison disciplinary

conviction. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and reverse and



       *
        This order is not binding precedent, except under the doctrines of law of the case,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.
remand with directions to grant habeas relief in favor of Walden.

                                              I.

       On September 16, 2002, during a telephone conversation between Walden and his

wife, Walden informed her that visitation for Sunday, September 22, 2002, might be

cancelled. He instructed his wife to call the warden, as well as the director of the Bureau

of Prisons (BOP), to complain. Walden further told his wife that if such phone calls were

unsuccessful, “she should gather several other female visitors on Saturday[, September

21, 2002], after visiting hours, and drive to the warden’s house, knock on his door, and

demand to know why they lost a visiting day.” 10/24/02 Disciplinary Report at 3.

       After monitoring the telephone conversation, institution staff investigated and

issued an incident report charging Walden with committing two acts prohibited by BOP

regulations: (1) use of the telephone to further criminal activity, in violation of Code 197;

and (2) engaging in or encouraging a group demonstration, in violation of Code 212.1 See

generally 28 C.F.R. § 541.13, Table 3 (2003) (outlining prohibited acts and their

accompanying sanctions). Because both charges fell within the “GREATEST

CATEGORY” on the BOP’s Disciplinary Severity Scale, see id., the incident report was

automatically referred to a disciplinary hearing officer (DHO) for disposition. At a

hearing on October 9, 2002, Walden appeared in person and was represented by a staff


       1
        According to the record, one of the officers who investigated the incident
concluded “that the 197 charge [wa]s not supported in the body of the incident report and
should be dropped.” Incident Report at 2.

                                              2
member. Although Walden admitted telling his wife to call the warden or the regional

director, and if necessary “to walk over to the warden’s house and ask,” he alleged he was

simply attempting “to pacify” his wife. 10/24/02 Disciplinary Report at 1. Walden

otherwise denied he was guilty of the pending charges.

       On October 24, 2002, the DHO issued a report expunging the Code 212 charge

(encouraging a group demonstration), but finding Walden guilty of the Code 197 charge

(use of the telephone to further criminal activity). In expunging the group demonstration

charge, the DHO concluded that Code 212 was inapplicable because it “concern[ed]

group demonstrations of inmates.” Id. at 3. In finding Walden guilty of violating Code

197 by using a telephone to further criminal activity, the DHO stated, in pertinent part:

              Based on listening to the taped phone conversation, where inmate
       Walden is clearly the person that is upset, and is clearly the person giving
       the directions about what the female has to do concerning the possible
       cancellation of one day of visiting; the fact that entering a federal housing
       reservation without express permission is criminal trespass; the fact that
       inmate Walden clearly instructs the female to go to the warden’s house on
       the federal staff housing property.

Id. The DHO imposed several sanctions against Walden, including the disallowance of

40 days of good conduct time, 60 days of disciplinary segregation, temporary restrictions

on telephone and visitation privileges, and a recommended disciplinary transfer.2

       Walden appealed the DHO’s decision, asserting in pertinent part that the DHO’s



       2
        According to the record, Walden is now housed at a federal correctional facility
in Florence, Colorado.

                                              3
finding of a violation of Code 197 was not supported by the evidence. The BOP Regional

Director and the Administrator of National Inmate Appeals affirmed the DHO’s decision.

After exhausting his administrative remedies, Walden filed his habeas petition seeking a

reversal of the DHO’s decision and expungement of the incident report. Shortly after

Walden filed his petition, the district court summarily dismissed it without seeking a

response from the government. The district court concluded that, even though Walden

had a constitutionally protected liberty interest in the loss of good conduct time credits,

“he was not denied due process in his disciplinary proceeding.” ROA, Doc. 5 at 2. More

specifically, the district court found “there [wa]s some evidence to support the

disciplinary conviction.” Id. at 3. Walden moved for reconsideration, but his motion was

denied by the district court.

                                              II.

       Federal inmates, such as Walden, possess a liberty interest in good time credits, see

Brown v. Smith, 828 F.2d 1493, 1494 (10th Cir. 1987), and thus are entitled to the

minimal safeguards afforded by the Due Process Clause prior to revocation of those

credits. See Wolff v. McDonnell, 418 U.S. 539, 557 (1974). Revocation of good time

credits “does not comport with ‘minimum requirements of procedural due process,’

unless the findings of the prison disciplinary [officer] are supported by some evidence in

the record.” Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985)

(internal citation omitted).


                                              4
       The central issue in Walden’s appeal is whether his disciplinary conviction, which

resulted in the loss of good time credits, satisfies this standard. In other words, the central

issue is whether the DHO’s finding that Walden violated Code 197 by using the telephone

to further criminal activity is supported by “some evidence” in the record. The district

court’s resolution of the issue is subject to de novo review. See Hunnicutt v. Hawk, 229

F.3d 997, 1000 (10th Cir. 2000).

       We begin our analysis by examining Code 197. Many acts prohibited by BOP

regulation are self-defining. For example, Code 100 prohibits federal inmates from

“Killing.” Code 197 is different. Because it prohibits federal inmates from using “the

telephone to further criminal activity,” it by necessity requires reference to, and

application of, some outside source of criminal law. Here, the DHO referred to and

applied the law of “criminal trespass” in concluding that Walden violated Code 197.

Although the DHO’s report did not include a specific statutory citation, we conclude,

based on the DHO’s reference to “entering a federal housing reservation without express

permission,” that the DHO relied on 18 U.S.C. § 1793. That statute, entitled “Trespass on

Bureau of Prisons reservations and land,” states: “Whoever, without lawful authority or

permission, goes upon a reservation, land, or a facility of the Bureau of Prisons shall be

fined under this title or imprisoned not more than six months, or both.” In the DHO’s

view, § 1793 was implicated because, during the telephone conversation, “Walden clearly

instruct[ed] [his wife] to go to the warden’s house on the federal staff housing property.”


                                              5
10/24/02 Disciplinary Report at 3.

       Although the record readily supports the DHO’s finding that Walden encouraged

or instructed his wife to go to the warden’s house (if her telephone attempts to resolve the

visitation issue were unsuccessful), there is no evidence that the telephone conversation

included any discussion of criminal trespass. That is, there is no evidence in the record

that, in encouraging or instructing his wife to go to the warden’s house, Walden intended

for her to do so “without lawful authority or permission,” 18 U.S.C. § 1793, e.g., by

sneaking onto federal staff housing property or otherwise ignoring directives from

institution staff in charge of the premises. We conclude that Walden’s disciplinary

conviction for violating Code 197 fails to satisfy the “some evidence” standard outlined

in Hill. In turn, we find it necessary to remand this case to the district court to determine

appropriate habeas relief.

       Petitioner’s motion to proceed on appeal without prepayment of costs or fees is

GRANTED. The judgment of the district court is REVERSED and the case

REMANDED to the district court with directions to enter habeas relief in favor of

petitioner.

                                           Entered for the Court

                                           Mary Beck Briscoe
                                           Circuit Judge




                                              6
No. 03-1461, Walden v. Gallegos
LUCERO, Circuit Judge, concurring.

       I join in my colleague’s opinion. I agree that the violation of the BOP regulation,

which prohibits the encouragement of a group demonstration, is not before us because it

was expunged by the disciplinary hearing officer. I also agree that the BOP has failed to

cite to any specific statute that would identify the criminal activity aspect of the remaining

charge against Walden.

       It could be that the defendant’s encouragement of his wife and others to go to the

warden’s home, knock on his door, and protest may raise other potential criminal charges,

but it is not our duty to speculate about other potential charges; rather it is the BOP’s duty

to raise them. BOP has failed to do so.
