                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                             July 1, 2005
                                TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                Clerk

 ANDRES VASQUEZ,

               Petitioner-Appellant,                     No. 05-6041
          v.                                           (W.D. of Okla.)
 T.C. PETERSON, Warden,                          (D.C. No. CV-04-0948-HE)

               Respondent-Appellee.


                           ORDER AND JUDGMENT            *




Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges.           **




      Andres Vasquez, a prisoner appearing pro se, was found guilty of

possessing a weapon in his cell in violation of prison regulations after a

disciplinary hearing. As punishment, Vasquez received 45 days segregation, 40

days loss of good conduct time, 180 days loss of commissary privileges, and 365

days loss of job. Vasquez filed a 28 U.S.C. § 2241 petition wherein he claimed


      *
         This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         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 appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
the disciplinary hearing violated his due process and equal protection rights.

Upon recommendation of the magistrate judge, the district court denied the

petition on the merits. We agree with the district court that Vasquez received

adequate due process protections under   Wolfe v. McDonnell , 418 U.S. 539 (1974),

and that the prison did not violate his equal protection rights.

                                          1.

      The magistrate judge’s thorough ruling sets forth the facts and applicable

legal principles. Since the parties are familiar with the court’s order, we will not

repeat it here. Vasquez alleged his due process rights were violated in three

ways. First, Vasquez claims the prison violated his right to a staff representative,

see Wolfe, supra , since the representative was not available during all phases of

the disciplinary proceeding. The magistrate judge found that because a staff

representative requested by Vasquez was present during the disciplinary

proceeding, Vasquez’s rights were not violated. The absence of a representative

during the preliminary investigation and a prehearing meeting did not violate

Vasquez’s rights because it had no bearing on Vasquez’s ability to understand and

respond to the charges brought at the disciplinary hearing.

      Vasquez’s second claim is that he was denied the right to call his cellmate

as a witness at the hearing. The magistrate judge rejected this claim because the

cellmate was interviewed and his statements were made a part of the disciplinary


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record. In addition, Vasquez called witnesses during the disciplinary hearing and

witnesses who were unavailable to attend the hearing provided written statements.

Thus, there was no prejudice to Vasquez arising from the witnesses’ absence.

      Finally, Vasquez claims there was insufficient evidence presented at the

hearing to find him guilty. The magistrate judge, however, determined that at

least “some evidence” supported the disciplinary hearing officer’s conclusion that

Vasquez possessed the weapon.    See Superintendent, Mass. Correctional Inst. v.

Hill , 472 U.S. 445, 455-56 (1985) (finding “the relevant question is whether there

is any evidence in the record that could support the conclusion reached by the

disciplinary board”). In particular, the hearing officer relied on the testimony of

investigatory personnel and Vasquez’s cellmate to conclude that Vasquez knew

the weapon was in his cell.

      Consequently, we agree with the district court that there was no due process

violation.

                                          2.

      Vasquez also argues the prison violated his equal protection rights by

finding his cellmate not guilty of possession of the weapon despite the fact that

the two shared the area of the cell in which the weapon was discovered. The

magistrate judge found this claim to be baseless because Vasquez’s cellmate was




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also found guilty of possessing a weapon and received a punishment similar to

Vasquez.

      After consideration of the materials submitted by Mr. Vasquez, it is

apparent that the conclusions of the magistrate judge set forth in her thorough

report and recommendation are correct. For the reasons set forth above as well as

those set forth by the magistrate judge, we affirm.


                                               Entered for the Court

                                               Timothy M. Tymkovich
                                               Circuit Judge




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