                                                                                     FILED
                                                                         United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                             Tenth Circuit

                             FOR THE TENTH CIRCUIT                               May 11, 2016
                         _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
NATHAN DEVERON BRENNAN,

      Petitioner - Appellant,

v.                                                            No. 16-3016
                                                    (D.C. No. 5:15-CV-03059-KHV)
UNITED STATES OF AMERICA,                                      (D. Kan.)

      Respondent - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

       Nathan Deveron Brennan, a federal prisoner proceeding pro se,1 appeals the

district court’s dismissal of his 28 U.S.C. § 2241 habeas corpus application. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm. 2

       *
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding precedent,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 with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
       1
         Although we liberally construe pro se filings, see Erickson v. Pardus, 551 U.S.
89, 94 (2007) (per curiam), we may not “assume the role of advocate,” Yang v. Archuleta,
525 F.3d 925, 927 n.1 (10th Cir. 2008) (quotations omitted); see also United States v.
Pinson, 584 F.3d 972, 975 (10th Cir. 2009), and we do not “fashion . . . arguments for
[pro se litigants],” United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994).
                                   I. BACKGROUND

                         A. Prison Administrative Proceedings

       Mr. Brennan is an inmate at a federal prison in Kansas and scheduled for release

on February 27, 2021. In 2012, he was incarcerated at the Federal Correctional

Institution (“FCI”) in Miami, Florida. On September 24, 2012, prison staff completed a

Bureau of Prisons (“BOP”) Incident Report (“IR”) charging Mr. Brennan with attempted

escape from the Miami FCI in violation of BOP Code 102A. The IR stated Mr. Brennan

was missing from his cell at 10:00 p.m. on September 23, 2012, and was found on top of

a prison building at 4:33 a.m. the next day. The IR stated:

       [Mr.] Brennan admitted to attempting to escape from the secure confines of
       the institution by using a rope fashioned from twine which was attached
       with a prison fashioned grappling hook and a combination lock.

ROA at 14.

       The IR indicates it was delivered to Mr. Brennan on September 25, 2012, at 9:20

a.m., but Mr. Brennan alleges the IR was not delivered to him until May 14, 2014. In

either event, the BOP suspended its investigation of Mr. Brennan on September 24, 2012,

pending criminal prosecution. He was charged under 18 U.S.C. § 751(a) for attempted

escape of a federal prisoner from custody. On January 3, 2014, Mr. Brennan pled guilty.

The BOP revived its administrative investigation in May 2014.

       2
        A federal prisoner is not required to obtain a certificate of appealability to seek
review of a district court’s denial of a habeas application under § 2241. Eldridge v.
Berkebile, 791 F.3d 1239, 1241 (10th Cir. 2015).



                                             -2-
       On May 14, 2014, at 10:20 a.m., a BOP Unit Discipline Committee (“UDC”) held

a hearing to review Mr. Brennan’s charges. UDC hearings typically involve

(1) reviewing the charges against an inmate, (2) imposing sanctions for lesser offenses,

and (3) deciding whether to refer the inmate to the Disciplinary Hearing Officer (“DHO”)

for more serious offenses. See 28 C.F.R. §§ 541.7, 541.8. At the hearing, Mr. Brennan

stated he understood his rights, did not request to present witnesses, and made no

comments. At 10:30 a.m., the UDC referred the charges to the DHO for further

proceedings. Mr. Brennan was entitled to receive a written copy of the IR 24 hours

before the DHO hearing. As noted above, Mr. Brennan alleges he received the IR 22½

hours before the DHO hearing, but the IR itself indicates he received it two years earlier.3

       The DHO hearing commenced the following day, May 15, 2014, at 9:00 a.m. The

DHO’s report of the hearing stated the IR was delivered to Mr. Brennan on September

25, 2012. According to the report, at the hearing Mr. Brennan stated he understood his

rights, waived his right to staff representation, said he was ready to proceed, did not

request to present witnesses, and made only the following comment: “I don’t want to

make a statement. My criminal case is on appeal.” ROA at 18.

       Based on the IR, the DHO concluded Mr. Brennan violated BOP Code 102A by

attempting to escape. It imposed the following sanctions: segregation for 60 days;




       3
       Despite this apparent conflict, we assume as true Mr. Brennan’s allegation as to
when he received the IR.



                                             -3-
revocation of 472 days of good-time credit; and loss of phone, visitation, and email

privileges for two years.

       Mr. Brennan filed an administrative claim with the BOP, which was denied at the

regional level. He then appealed to the BOP General Counsel. When the General

Counsel failed to timely respond, he filed his § 2241 application in district court.

                            B. Section 2241 Procedural History

       Mr. Brennan’s § 2241 application4 alleged prison officials violated his due process

rights by (1) failing to provide the IR to him at least 24 hours before the DHO hearing,

(2) failing to provide the IR to him within 24 hours of the attempted escape incident, and

(3) providing him the IR only moments before the UDC hearing.

       The district court dismissed Mr. Brennan’s application under Rule 4 of the Rules

Governing Section 2254 Cases in the United States District Courts (“HC Rule 4”)5 which


       4
         Mr. Brennan originally filed a civil complaint raising claims under both § 2241
for revocation of good-time credit and 42 U.S.C. § 1983 for segregation for 60 days and
loss of phone, visitation, and email privileges for two years. The district court ordered
him to file a habeas corpus form, which he did, but instead of filling out the form, he
simply incorporated his original civil complaint. The district court declined to entertain
Mr. Brennan’s § 1983 claims because he failed to pay the required filing fee for a civil
complaint and was ineligible for in forma pauperis status as “a three-strikes litigant under
28 U.S.C. § 1915(g).” ROA at 87 n.1. The district court therefore considered only his
§ 2241 claims. We do the same because Mr. Brennan does not raise on appeal the district
court’s disposition of his § 1983 claims.
       5
         Rule 1(b) of the Rules Governing Section 2254 Cases in the United States
District Courts states a “district court may apply any or all of these rules to a habeas
corpus petition” that is not a 28 U.S.C. § 2254 application. We have upheld the
application of these rules to § 2241 applications by federal prisoners. See Garza v. Davis,
596 F.3d 1198, 1205 (10th Cir. 2010).



                                             -4-
states: “If it plainly appears from the petition and any attached exhibits that the petitioner

is not entitled to relief in the district court, the judge must dismiss the petition and direct

the clerk to notify the petitioner.” The court determined it was plain from the application

and the attached exhibits that Mr. Brennan was not entitled to relief.

       Specifically, the district court concluded (1) Mr. Brennan failed to show he had

exhausted his administrative remedies, and (2) his due process rights were not violated.

The court determined any violation of due process caused by the DHO’s failure to give

Mr. Brennan at least 24 hours to prepare for the DHO hearing was harmless. Further, the

court concluded Mr. Brennan had no due process right to receive the IR within 24 hours

of the escape incident or to receive the IR before the UDC hearing.

                                      II. DISCUSSION

       On appeal, Mr. Brennan raises the same due process arguments and contends he

exhausted his administrative remedies because the BOP General Counsel’s office missed

its deadline to respond to his appeal. Even if we assume Mr. Brennan exhausted his

administrative remedies,6 we affirm the district court’s dismissal because (1) any due


       6
          We agree with Kosman v. Kindt, 39 F.3d 1192 (10th Cir. 1994) (unpublished)
that the requirement to exhaust administrative remedies is not jurisdictional. See 39 F.3d
1192 n.2 (“The requirement that federal prisoners exhaust administrative remedies before
filing a habeas corpus petition was judicially created and it is not required by statute. . . .
Because it is not required by statute, it is not jurisdictional.”); see also United States v.
Kwai Fun Wong, ––– U.S. ––––, 135 S.Ct. 1625 (2015) (stating that “procedural rules . . .
cabin a court’s power only if Congress has clearly stated as much”) (quotations, citations,
and brackets omitted); Santiago-Lugo v. Warden, 785 F.3d 467, 474-75 (11th Cir. 2015)
(“It is no longer the law of this circuit that exhaustion of administrative remedies is a
jurisdictional requirement in a § 2241 proceeding.”).



                                               -5-
process violation regarding the DHO hearing was harmless, and (2) Mr. Brennan’s other

allegations of BOP regulation violations do not amount to due process violations.

                       A. Legal Background/Standard of Review

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

Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011) (quotations omitted). As

noted above, under HC Rule 4, “If it plainly appears from the petition and any attached

exhibits that the petitioner is not entitled to relief in the district court, the judge must

dismiss the petition and direct the clerk to notify the petitioner.”

1. Due Process in Prison Disciplinary Hearings

       An inmate’s protected liberty interest such as good-time credit may not be revoked

without due process procedural safeguards. See Superintendent, Mass. Corr. Inst.,

Walpole v. Hill, 472 U.S. 445, 453-56 (1985); Wolff v. McDonnell, 418 U.S. 539, 563-67

(1974).

       These procedural safeguards, known as the Wolff due process requirements,

consist of the following:

       (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 [a prisoner’s] defense; and
       (3) a written statement by the factfinder of the evidence relied on and the
       reasons for the disciplinary action.

Hill, 472 U.S. at 454 (discussing Wolff, 418 U.S. at 563-67); see also Mitchell v.

Maynard, 80 F.3d 1433, 1445 (10th Cir. 1996). Wolff set a minimum time for the

advance written notice: “At least a brief period of time after the notice, no less than 24

hours, should be allowed to the inmate to prepare for the appearance before” a hearing


                                                -6-
determining whether to revoke good-time credit. 418 U.S. at 564. Revocation must also

be supported by “some evidence in the record.” Hill, 472 U.S. at 454-57; see also

Mitchell, 80 F.3d at 1445.7

2. Harmlessness of Wolff Errors

       We have not addressed whether Wolff’s 24-hour due process notice requirement is

subject to harmless error review. But we have held Wolff’s requirement to allow inmates

to call witnesses is. See Howard v. U.S. Bureau of Prisons, 487 F.3d 808, 813 (10th Cir.

2007) (“[E]rrors made by prison officials in denying witness testimony at official

hearings are subject to harmless error review.”) (quoting Grossman v. Bruce, 447 F.3d

801, 805 (10th Cir. 2006)).

       Further, the only other circuit to address this question, the Seventh, did so in an

unpublished opinion and concluded the 24-hour notice is subject to harmless error

review. Ard v. Hanks, 67 F. App’x 946, 949 (7th Cir. 2003) (unpublished) (“The record

reveals that in fact he was able to mount a substantial if ultimately ineffective defense

involving three witnesses and his own testimony. The jail’s failure to provide Ard with

24 hours’ advance notice before his hearing was thus harmless error that cannot support




       7
        Mr. Brennan does not seem to argue in his § 2241 application or on appeal that
the DHO’s decision was not supported by some evidence in the record. In any case, we
agree with the district court that the IR supported the DHO’s revocation of good-time
credit.



                                             -7-
collateral relief.”).8 Seeing no reason why one Wolff requirement would be subject to

harmless error review and another would not, we conclude Wolff’s 24-hour notice

requirement for the advance written notice is subject to harmless error review.

       “It is well-established that the burden of proving harmless error is on the

government.” United States v. Holly, 488 F.3d 1298, 1307-08 (10th Cir. 2007).

“Nevertheless, where the government has failed to assert harmless error, this court may in

its discretion initiate harmless error review in an appropriate case.” Id. (quotations

omitted). One such appropriate case is “where the certainty of the harmlessness is readily

apparent.” Id. at 1308.

       A DHO’s failure to comply with the Wolff requirements is harmless when it does

not prejudice an inmate’s preparation or defense at a hearing. See Mendoza v. Tamez,

451 F. App’x 715, 717 (10th Cir. 2011) (unpublished) (“[E]ven assuming he was entitled

to see the documents before the hearing, . . . Mendoza does not explain what he intended

to do with the forms, much less how his limited access to them prejudiced his defense.”).

                                       B. Analysis

1. Any Violation of Mr. Brennan’s Due Process Rights Regarding the DHO
   Hearing Was Harmless

       Mr. Brennan alleged the DHO hearing started 22½ rather than 24 hours after he

received the IR, but the record indicates he was not prejudiced. Mr. Brennan did not call


       8
        Although this and certain other cases cited in this order and judgment are
unpublished and therefore not precedential, we cite them for their persuasive value. See
Fed. R. App. P. 32.1; 10th Cir. R. 32.1(A).



                                             -8-
witnesses or present evidence. The record does not show an extra 1½ hours would have

helped his preparation. Further, Mr. Brennan already knew the charges because he had

been criminally charged with and pled guilty to attempting to escape from a federal

prison and appealed this conviction—all well before the DHO hearing. The DHO’s

provision of the IR 1½ hours short of the Wolff 24-hour requirement was harmless.

2. Mr. Brennan’s Other Allegations Do Not Implicate Due Process

       First, Mr. Brennan’s allegation that the BOP failed to provide him the IR within 24

hours of the escape incident may have violated BOP regulations. See 28 C.F.R.

§ 541.5(a) (stating to inmates: “You will ordinarily receive the incident report within 24

hours of staff becoming aware of your involvement in the incident”). But prison

regulations are “primarily designed to guide correctional officials in the administration of

a prison. [They are] not designed to confer rights on inmates.” Sandin v. Conner, 515

U.S. 472, 481-82 (1995).

       We have decided the BOP’s failure to provide an inmate with an IR within 24

hours of an incident does not violate due process. See e.g., Brown v. Rios, 196 F. App’x

681, 683 (10th Cir. 2006) (unpublished); see also Wallace v. Fed. Det. Ctr., 528 F. App’x

160, 162-63 (3d Cir. 2013) (“[E]ven if [BOP] regulations were violated, Wallace cannot

show that his right to due process was infringed, where Wolff does not require issuance of

the charge within 24 hours of the incident or a hearing within three days of the alleged

conduct, and where any delay did not prejudice him.”). The BOP did not violate Mr.

Brennan’s due process rights by failing to give him the IR within 24 hours of the escape

incident.


                                             -9-
       Second, Mr. Brennan alleges the IR was given to him moments before the UDC

hearing. Again, this may have violated BOP regulations, but it did not violate due

process. According to BOP regulations, UDC hearings are typically held within five

work days after the IR is issued. See 28 C.F.R. § 541.7(c). That did not happen here, but

there was no due process violation because UDC hearings may not be used to revoke an

inmate’s good-time credit. See id. § 541.7(f) (“If you committed a prohibited act(s), the

UDC can impose any of the available sanctions listed in Tables 1 and 2, except loss of

good conduct sentence credit, disciplinary segregation, or monetary fines.”). Rather, if

the UDC determines an inmate’s offenses are serious enough that good-time credit could

be revoked, the UDC must refer the inmate to the DHO. See id. § 541.7(a)(3)-(4).

       Unlike DHO hearings, the Wolff due process requirements do not apply to UDC

hearings. See Brown, 196 F. App’x at 683 (“Wolff mandates only a twenty-four hour

advance notice of a disciplinary hearing and an opportunity to present a defense. It does

not require an UDC hearing.”). The UDC therefore did not violate Mr. Brennan’s due

process rights by giving him the IR moments before conducting its hearing.

                                   III. CONCLUSION

       For the foregoing reasons, we affirm the district court’s dismissal of Mr.




                                            - 10 -
Brennan’s § 2241 application. We grant his motion for leave to proceed in forma

pauperis on appeal.



                                           ENTERED FOR THE COURT,



                                           Scott M. Matheson, Jr.
                                           Circuit Judge




                                          - 11 -
