                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       May 23, 2007
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court


 D A RW IN BR OWN ,

          Petitioner-A ppellant,
 v.                                                      No. 06-8095
 W Y O M ING D EPA RTM EN T O F                    (D.C. No. 05-CV-300-B)
 CO RRECTION S STATE                                    (D. W yoming)
 PENITENTIARY W ARDEN, also
 known as SCOTT ABBOTT, in his
 official capacity,

          Respondent-Appellee.




            OR DER DENYING CERTIFICATE O F APPEALABILITY *


Before BRISCO E, M cK AY, and M cCO NNELL, Circuit Judges.


      Darwin Brown (Brown), a state prisoner proceeding pro se, requests a

certificate of appealability (COA) to appeal the district court’s order denying his

28 U.S.C. § 2241 petition for writ of habeas corpus. Because Brown has not

made “a substantial showing of the denial of a constitutional right,” 28 U.S.C. §

2253(c)(2), we deny his request for a COA and dismiss the matter.




      *
        This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel.
                                           I

      On April 20, 2005, Brown was involved in a fight with another inmate of

the W yoming State Penitentiary (W SP) which grew into a larger incident. Brown

was charged with three major violations of the W SP inmate’s rules: (1) assault,

(2) battery, and (3) organizing, encouraging, or participating in a work stoppage

and/or other disruptive demonstration or practice. A disciplinary hearing was

held, Brown was found guilty of all three charges, and was sentenced to eighteen

months of segregation and a loss of “good time” credits. Brown appealed to the

W arden, arguing in pertinent part that the notice of charges was vague, thus

denying him due process. The W arden agreed the charges were vague, ordered

them vacated and rewritten, and ordered a second disciplinary hearing.

      On August 31, 2005, Brown received his new notice of charges, and, in

addition to the three major charges in the original notice, two additional general

charges were added: (1) involvement in spontaneous fighting with another inmate,

and (2) tampering with evidence or influencing a witness involved in any

disciplinary process, not amounting to threats. A new and different disciplinary

comm ittee was formed and found Brown guilty of assault, battery, disruption, and

tampering, but not guilty of spontaneous fighting. Brown was sanctioned with

thirty months of segregation and loss of good time credits. Brown again appealed

to the W arden, arguing that the new charges added before the second hearing

were an act of retaliation for the success of his first appeal, arguing further that

                                          -2-
the second notice of the charges was inadequate, and alleging numerous

additional violations of due process. The W arden reduced Brown’s loss of good

time to one year, but otherwise affirmed the second disciplinary committee’s

sanction.

      Brow n then filed a 28 U.S.C. § 2254 petition in federal district court

claiming unlaw ful retaliation and violations of his right to due process, essentially

seeking the vacation of all disciplinary charges and sanctions. The district court

entered an order correctly construing the petition as a 28 U.S.C. § 2241 petition.

After hearing oral arguments on the parties’ cross-motions for summary

judgment, reviewing the transcript of Brown’s second disciplinary hearing, and

watching the videotape of the incident in question, the district court entered an

order denying Brown’s petition. Brown requests a COA, and has filed a notice of

appeal regarding the denial of his § 2241 petition. W e construe Brow n’s

appellate brief in support of his notice of appeal as additional argument in support

of his application for a COA.

                                          II

      Brown may appeal the denial of his § 2241 petition only if a COA is issued.

See 28 U.S.C. § 2253(c)(1); M ontez v. M cK inna, 208 F.3d 862, 867 (10th Cir.

2000). A COA will issue only if Brown makes “a substantial showing of the

denial of a constitutional right.” 18 U.S.C. § 2253(c)(2). To make the requisite

showing, he must demonstrate that “reasonable jurists could debate whether . . .

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the petition should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.” See

M iller-El v. Cockrell, 537 U.S. 322, 336 (2003) (citations omitted).

      Brow n makes roughly twelve arguments in support of his request for a

COA: (1) unlawful retaliation, (2) insufficient notice of charges, (3) violation of

W SP inmate prison regulations, (4) fraudulent notice of disciplinary extension,

(5) wrongful denial of access to evidence, (6) improper reliance on the videotape

of the incident, (7) failure to provide an impartial review, (8) insufficient

evidence, (9) self-defense, (10) denial of access to the courts, (11) failure to

develop facts underlying the disciplinary incident, and (12) wrongful denial of his

motion to alter or amend the judgment.

      To begin, we note that “[p]rison disciplinary proceedings are not part of a

criminal prosecution, and the full panoply of rights due a defendant in such

proceedings does not apply.” W olff v. M cDonnell, 418 U.S. 539, 556 (1974). To

satisfy due process in a prison disciplinary proceeding, “the inmate must 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 defense; and (3) a written statement by the

factfinder of the evidence relied on and the reasons for the disciplinary action.”

Superintendent, M ass. Corr. Inst., W alpole v. Hill, 472 U.S. 445, 454 (1985).

There must also be “some evidence in the record” supporting the charge. Id. at

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454-57. W e conclude that these minimal procedural requirements were satisfied

here and that no jurist could reasonably assert that Brown has made “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

      As for the specific objections Brown asserts, they do not deserve

encouragement to proceed further. 1 First, to prove vindictive prosecution, Brow n

had to show either (1) actual vindictiveness, or (2) a reasonable likelihood of

vindictiveness, which raises a presumption of vindictiveness. United States v.

Raymer, 941 F.2d 1031, 1040 (10th Cir. 1991). Brown attempted to establish the

latter, but failed and no reasonable jurist could conclude otherwise. Specifically,

a prisoner claiming retaliation must “allege specific facts showing retaliation [on

account] of the exercise of the prisoner’s constitutional rights,” Frazier v. Dubois,

922 F.2d 560, 562 n.1 (10th Cir. 1990), and he “must prove that ‘but for’ the

retaliatory motive, the incidents to which he refers, including the disciplinary

action, would not have taken place,” Smith v. M aschner, 899 F.2d 940, 949-50

(10th Cir. 1990). The record does not indicate that either the conduct of the

charging officer in bringing two additional charges in the second disciplinary

hearing, or the second disciplinary committee’s m ore substantial sanction, “w ould

not have occurred but for the hostility or punitive animus toward the defendant

because he exercised his specific legal right.” United States v. Contreras, 108



      1
        W e note that alleged violations of due process in the first disciplinary
hearing were mooted by Brown’s success in having his initial charges vacated.

                                         -5-
F.3d 1255, 1262 (10th Cir. 1997) (emphasis in original). Also, there is no

evidence of disparate treatment. Brown has not made the requisite showing for

issuance of a COA on this claim.

        Second, by setting forth the offense codes charged, and a brief description

of the charged conduct, prison officials provided Brown with sufficient notice to

allow him to defend against these charges at the second disciplinary hearing. See,

e.g., W hitford v. Boglino, 63 F.3d 527, 534 (7th Cir. 1995) (concluding notice

was sufficient where prisoner had been given the number of each disciplinary rule

he was alleged to have violated, and was given a brief statement describing the

charged conduct). No reasonable jurist could conclude otherw ise, thus, Brow n’s

allegation of a vague and deficient notice does not require further scrutiny.

Prison officials also provided a satisfactory written statement of the evidence

relied upon – the videotape, Brow n’s testimony, testimony of the charging officer,

and an officer report – and the reasons for the disciplinary action – acts of assault,

battery, disruption, and tampering. Thus, a COA is not merited on these claims as

well.

        Likewise, no reasonable jurist could conclude that Brown’s claim that

prison officials deprived him of due process by violating internal prison

regulations rises to the level of a due process violation. 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.

                                          -6-
Conner, 515 U.S. 472, 481-82 (1995). Although states may create liberty

interests protected by due process, “these interests will be generally limited to

freedom from restraint which . . . imposes atypical and significant hardship on the

inmate in relation to the ordinary incidents of prison life.” Id. at 484 (citations

omitted). This case does not present a situation where “a prison regulation or

practice offends a fundamental constitutional guarantee . . . .” Turner v. Safley,

482 U.S. 78, 84 (1987). The process due here under the United States

Constitution is measured by the Due Process Clause, not prison regulations. See

Hulen v. Yates, 322 F.3d 1229, 1247 (10th Cir. 2003) (“[O]nce the property right

is established, it is purely a matter of federal constitutional law whether the

procedure afforded was adequate.”); see also Shakur v. Selsky, 391 F.3d 106, 119

(2d Cir. 2004) (concluding that “regardless of state procedural guarantees, the

only process due an inmate is that minimal process guaranteed by the

Constitution”). Because the alleged violations of W SP procedural regulations do

not impose “atypical and significant hardship on [Brown] in relation to the

ordinary incidents of prison life,” Sandin, 515 U.S. at 484, we deny Brow n’s

request for a COA as to this issue.

      Fourth, Brown’s claim that he was deprived of an opportunity to call

witnesses and present documentary evidence in his defense does not deserve

further consideration. In W olff, the Supreme Court acknowledged that an “inmate

facing disciplinary proceedings should be allowed to call witnesses and present

                                          -7-
documentary evidence in his defense when permitting him to do so will not be

unduly hazardous to institutional safety or correctional goals.” 418 U.S. at 566.

Here, no reasonable jurist could conclude that the W SP disciplinary committee

violated Brown’s due process rights by forbidding him from viewing the video

tape, or failing to provide him the names of prisoners present at the incident,

given a reasonable concern that such information could endanger other prisoners. 2

      Also, a prisoner cannot maintain a due process claim for failure to permit

witness testimony if he fails to show that the testimony “would have affected the

outcome of his case.” Chesson v. Jacquez, 986 F.2d 363, 366 (10th Cir. 1993).

Absent an indication that the testimony of M ajor M oore at the second disciplinary

hearing, or that having access to the contents of M ajor M oore’s testimony at the

first proceeding, would have somehow affected Brow n’s second disciplinary

proceeding, no reasonable jurist could consider the aforementioned restrictions a

violation of Brown’s right to call w itnesses and present evidence in his defense.

      Likewise, prison officials afforded Brown an adequate hearing, and the Due

Process Clause does not require a second opportunity before a federal court to

contest the disciplinary charges via an evidentiary hearing. See Hill, 472 U.S. at

455-56 (“Ascertaining whether this [due process] standard is satisfied does not

require examination of the entire record, independent assessment of the credibility



      2
       Brown also argues that W SP w ould not provide him with a summary of the
videotape, however, there is no indication that Brown requested such a summary.

                                         -8-
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.”). In light of this standard, the record, and

because no reasonable jurist could conclude that Brown is entitled to the relief

sought, w e also deny Brown’s request for a COA as to this issue.

      Fifth, Brown challenges the disciplinary committee’s partial reliance on the

videotape of the altercation in determining his guilt. He argues the disciplinary

comm ittee did not view the videotape, and that the quality of the videotape was

too degraded to identify the inmates in the underlying altercation. However, the

record indicates that the tape existed, that it was sufficiently clear to identify

Brown, that it was relied upon by the disciplinary committee, and that it did not

corroborate Brown’s self-defense theory. M oreover, the district court reached the

same conclusion upon review. In short, jurists could not reasonably debate that

there is “some evidence” supporting the disciplinary committee’s determination.

      Sixth, Brown claims that he was denied an impartial disciplinary hearing

because the prison official who reviewed his second disciplinary appeal, Jerry

Steele, was an alleged witness to the incident upon which his charges are based.

Brown also claims that a document signed by Steele, which notified Brown that

his second disciplinary hearing was to be rescheduled, was somehow “fraudulent”

and violated his due process rights. However, there is no evidence in the record

supporting either assertion, but only unsupported allegations by Brow n of Steele’s

                                           -9-
alleged misconduct. W e deny Brown’s request for a COA on these claims as

well.

        Brow n next asserts that the punishment meted out by the disciplinary

comm ittee violated the Due Process Clause because his involvement in the

altercation in question was limited to self-defense. Brown claims that W SP

medical records and investigative reports establish that he suffered multiple stab

wounds from the April 20, 2005 incident, thereby establishing that he was acting

in self-defense. Nonetheless, this documentary evidence is not in the record, nor

is there an allegation these documents, assuming they exist, were requested by,

and denied to, Brown. M ore importantly, this argument is simply another way to

challenge the disciplinary committee’s determination that Brown committed the

prohibited acts, and we have already concluded that a reasonable jurist w ould

conclude that “some evidence” supports that decision.

        As for Brown’s claim that he was denied access to the courts, we see no

arguable constitutional violation in the manner in w hich the district court

conducted its July 21, 2006 hearing on the parties’ cross motions for summary

judgment, at which Brown appeared telephonically. During that hearing, the

district court became aware that the W SP intended to charge Brown the costs

associated with his telephone call. Soon thereafter, the district court entered an

order, in pertinent part, permanently enjoining the W SP from charging any

inmates, including Brown, to appear by telephone in court ordered proceedings.

                                         -10-
Brown filed a motion with the district court requesting, in part, an opportunity to

supplement the argument he made at the hearing, which the district court denied.

Brown now argues that W SP employees “distracted him from persuasively and

fully argu[ing] the merits of [his] claims . . . .” Appellant’s Br., p. 22. The

record does not bear this out and we conclude there is no basis for further

consideration of Brown’s access-to-the-court claim.

      Finally, no reasonable jurist could find merit in Brown’s unsupported

assertions that the disciplinary committee and the district court somehow failed to

discharge an affirmative duty to “have [Brown’s] facts fully developed.” Id. at 2.

Likewise, Brown’s vague and conclusory argument that the district court erred in

failing to address the substance of his motion to alter or amend the district court’s

denial of his petition is not deserving of additional consideration.

      In sum, Brown has failed to make a substantial showing of the denial of a

constitutional right. Accordingly, the application for a COA is DENIED. The

m otion to proceed in forma pauperis is DENIED. The appeal is DISM ISSED.


                                                Entered for the Court


                                                M ary Beck Briscoe
                                                Circuit Judge




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