                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  May 20, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT




    C. ELI-JAH HAKEEM
    MUHAMMAD, a/k/a Christopher
    Mitchell,
                                                  Nos. 08-1351 & 08-1383
                Petitioner-Appellant,        (D.C. Nos. 1:06-CV-01128-WYD &
                                                   1:06-CV-01013-WYD)
    v.                                                    (D. Colo.)

    R. WILEY, ADX Warden,

                Respondent-Appellee.


                            ORDER AND JUDGMENT *


Before O’BRIEN, Circuit Judge, BRORBY, Senior Circuit Judge, and
GORSUCH, Circuit Judge.



         Petitioner-appellant, C. Eli-jah Hakeem Muhammad, is a federal prisoner

currently in the custody of the United States Bureau of Prisons (Bureau) at ADX

Florence, Colorado. In two separate appeals, which we consolidate for procedural



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
purposes only, Muhammad appeals from the district court’s dismissals of his pro

se applications for habeas corpus brought under 28 U.S.C. § 2241 challenging two

prison disciplinary convictions. Those convictions resulted in the loss of good

time credits. We review the district court’s dismissal of the habeas corpus

applications de novo. Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996).

Because Muhammad is appealing pro se, “we construe his pleadings liberally, but

we do not act as his advocate.” Ford v. Pryor, 552 F.3d 1174, 1178 (10th Cir.

2008). Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

      On January 7, 2004, Muhammad was involved in an altercation with prison

guards that resulted in the filing of two separate incident reports against him, each

charging him with assault. He was placed in administrative detention pending

review by prison authorities and later by the Federal Bureau of Investigation

(FBI). After the FBI returned the case to the Bureau of Prisons, a prison official

determined that the matter should be referred to the Unit Disciplinary Committee

(UDC). Because of the nature of the charges, the UDC was required to refer the

matter to a Discipline Hearing Officer (DHO). Muhammad challenges the

procedures used by the prison during the various disciplinary hearings,

contending that he was denied due process and that the convictions should be

expunged and his credits restored.

      Muhammad’s first claim in appeal No. 08-1351 is that he was subjected to

unduly harsh confinement in the Special Housing Unit in the days before his

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disciplinary hearings and that this was done in retaliation for filing various

complaints and grievances. This claim challenges a condition of Muhammad’s

confinement and is therefore inappropriate for § 2241 relief. See Rael v.

Williams, 223 F.3d 1153, 1154 (10th Cir. 2000) (explaining that the Supreme

Court “has distinguished between habeas actions and those challenging conditions

of confinement under 42 U.S.C. § 1983,” leading us to recognize that “federal

claims challenging . . . conditions of . . . confinement generally do not arise under

§ 2241”). The district court correctly dismissed this claim. 1

      Turning to Muhammad’s claims relative to the disciplinary procedures

resulting in the deprivation of his good-time credits, we note that, while a federal

prisoner has a liberty interest in his earned good-time credits which entitles him

to due process at the disciplinary hearing, Brown v. Smith, 828 F.2d 1493, 1494

(10th Cir. 1987), those rights are not coextensive with the due process rights of

defendants still involved in the criminal process or with free persons, Wolff v.

1
       As a general matter, Muhammad argues throughout his briefs that prison
officials failed to follow specific regulations dealing with prison disciplinary
procedures resulting in due process violations. As part of this claim, he argues
that 28 C.F.R. § 541.22 creates a protected liberty interest. Aside from the fact
that 28 C.F.R. § 541.22 does not create a constitutionally protected liberty
interest, Crowder v. True, 74 F.3d 812, 814-15 (7th Cir. 1996) (citing Sandin v.
Conner, 515 U.S. 472 (1995)), Muhammad’s discussion of liberty interests and
procedural violations are beside the point in these § 2241 actions. The contours
of Muhammad’s due process rights relative to his prison discipline were defined
in Wolff v. McDonnell, 418 U.S. 539 (1974). Our task is to determine whether
those minimum due process requirements were met and whether the Discipline
Hearing Officer’s findings were supported by at least some evidence. Mitchell v.
Maynard, 80 F.3d 1433, 1445 (10th Cir. 1996).

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McDonnell, 418 U.S. 539, 556 (1974); Estate of DiMarco v. Wyo. Dep’t of Corr.,

473 F.3d 1334, 1339 (10th Cir. 2007). Providing a prisoner with the minimum

process due in a disciplinary proceeding requires (1) written notice of the claimed

violation delivered to the prisoner at least twenty-four hours before a disciplinary

hearing; (2) the opportunity for the prisoner to call witnesses or present

documentary evidence in his defense so long as doing so would not be unduly

hazardous to the safety or goals of the institution; and (3) a written statement of

the evidence relied upon and the reasons for the decision. Wolff, 418 U.S. at

563-566. The decision of a prison disciplinary board must be supported by some

evidence in the record. Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445,

454 (1985); Wilson v. Jones, 430 F.3d 1113, 1117 (10th Cir. 2005) “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. Instead, the relevant question is whether there is any evidence in the

record that could support the conclusion reached by the disciplinary board.” Hill,

472 U.S. at 455-56. “A disciplinary board’s decision can be upheld by a

reviewing court even if the evidence supporting the decision is meager.” Howard

v. U. S. Bureau of Prisons, 487 F.3d 808, 812 (10th Cir. 2007) (quotations

omitted).

      With liberal construction, and setting aside claims based on failure to

adhere to prison regulations, we have identified Muhammad’s claims relative to

                                          -4-
the two discrete stages of the disciplinary procedure at issue in appeal

No. 08-1351: 1) the officials in charge of the Unit Disciplinary Committee

(UDC) improperly waived Muhammad’s right to attend the hearing and present a

defense, and the UDC improperly referred the matter to the Disciplinary Hearing

Officer (DHO); and 2) with respect to the DHO hearing, Muhammad was denied

the right to present an exculpatory video tape, and the Wolff requirements were

not met.

      With regard to the UDC issues, we agree with the district court; there is

some evidence that Muhammad attended the hearing. The form filled out as part

of the UDC hearing states the prisoner had no comment at the proceeding. While

this does not necessarily mean the prisoner attended the proceeding, the record in

the companion case, No. 08-1383, of which we take judicial notice, contains a

declaration filed under the penalty of perjury and signed by Sherry Beicker, a

case manager at the United States Penitentiary-High Security in Florence.

Ms. Beicker stated, in her usual practice, if an inmate did not attend a hearing she

would note that the inmate had declined to appear, rather than he had no

comment. R. (08-1383), Doc. 15, Ex. B at 2. The UDC report, stating

Muhammad had no comment is some evidence that he attended the hearing.

      Turning to the Wolff requirements, it is undisputed that Muhammad was

notified of the charges against him on the day of the incident and well before the

first disciplinary hearing before the UDC. Muhammad had already submitted a

                                         -5-
personal statement to a prison investigator about the incident prior to the UDC

hearing, R. (08-1351), Doc. 14 Attach. 5; he was afforded the opportunity to

present a defense. Had he wanted to augment his response, he had the

opportunity to do so at the UDC hearing but waived the right by declining to

comment. Because of the serious nature of the charges which the UDC found to

be supported by declarations of the prison officials involved, the UDC was

required to submit the matter to the DHO. 28 C.F.R. § 541.15(h). No

constitutional infirmity arose from the UDC following required procedure. On

the same day as the UDC hearing, Muhammad was given notice of its decision to

refer the matter to the DHO, thus satisfying all of the Wolff requirements relative

to the UDC proceeding.

      Turning to the DHO hearing, we conclude the due process requirements of

Wolff were satisfied. On the day of its decision Muhammad received notice of the

UDC’s referral of the case to the DHO. The notice specifically advised the charge

against Muhammad was assault with serious injury. After receiving the notice,

Muhammad refused the right to have a staff representative and to present

witnesses. He also refused to sign the notice. R. (08-1351), Doc. 14, Attach. 9.

      The DHO hearing report indicates that, while Muhammad denied the

charges against him, he declined to make an oral statement or to present a written

statement to the DHO. He also declined the right to present witnesses,

undercutting his argument that he should have been given the opportunity to

                                         -6-
present the surveillance video tape of the incident. The DHO report, which

outlined the charge, the evidence relied upon, and the reasons for the decision was

delivered to Muhammad the day after the hearing. Included in the evidence

reviewed by the DHO were supporting memoranda by prison officials involved in

the incident, as well as the injury assessment forms generated as a result of the

incident. This was certainly some evidence to support the DHO decision. Like

the UDC hearing, the hearing before the DHO provided Mr. Muhammad with the

process to which he was due. For the reasons stated above, in appeal No. 08-

1351, we affirm the district court’s denial of Muhammad’s application for relief

under 28 U.S.C. § 2241.

      The facts and issues in appeal No. 08-1383 are virtually identical to the

issues in 08-1351, which we have just affirmed. One issue, however, deserves

brief mention. In 08-1383, the Bureau argued the doctrine of laches should bar

Muhammad’s application because he filed it more than one year after the

exhaustion of his administrative remedies. While the Bureau references the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) as support for

this claim, it notes in a footnote that the doctrine of laches is invoked, presumably

instead of AEDPA, “because the DHO had retired. Thus BOP did not have a

declaration from the DHO.” Answer Br. at 9 n.4. We are unclear why this fact

would present a problem in making a limitations argument under AEDPA, but, in




                                         -7-
any case, since resolution of this issue would not alter our ultimate affirmance of

the dismissal in appeal No. 08-1383, we decline to address the issue.

      The judgments of the district court are AFFIRMED. Muhammad’s motions

to proceed in forma pauperis are GRANTED. Muhammad must continue making

partial payments until the filing fees are paid in full.


                                                       Entered for the Court



                                                       Terrence L. O’Brien
                                                       Circuit Judge




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