     Case: 18-40377       Document: 00514994786         Page: 1    Date Filed: 06/13/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                    No. 18-40377                            FILED
                                  Summary Calendar                      June 13, 2019
                                                                       Lyle W. Cayce
                                                                            Clerk
ISAAC KELVIN ALLEN,

                                                  Petitioner-Appellant,

v.

JOHN FOX, Warden,

                                                  Respondent-Appellee.


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:13-CV-296


Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Isaac Kelvin Allen, federal prisoner # 49476-018, appeals the denial of
his 28 U.S.C. § 2241 habeas petition challenging his disciplinary conviction for
the use of e-mail to further criminal activity. The incident report alleged that
Allen and another inmate possessed identifying information of individuals
with the intent to commit financial fraud. Allen also has filed two motions for




       * Pursuant to Fifth Circuit Rule 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited circumstances set forth
in Fifth Circuit Rule 47.5.4.
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                                  No. 18-40377

judicial notice in which he asks this court to take notice of discrepancies in
prison records.
      Because Allen challenges the loss of good-time credits, he properly
sought relief pursuant to § 2241. See, e.g., Henson v. U.S. Bureau of Prisons,
213 F.3d 897, 898 (5th Cir. 2000). In an appeal from the denial of a § 2241
petition, this court reviews the district court’s factual findings for clear error
and its conclusions of law de novo. Id.
      Although Allen argues that the district court violated his due process
rights by not ruling on the respondent’s motion to dismiss and motion for
summary judgment in a timely manner, he offers only a conclusory allegation
of harm resulting from the alleged delayed consideration of the motions.
Therefore, Allen has not shown any error by the district court. See Ross v.
Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983). He also contends that the district
court conducted an insufficient analysis of the evidence because it did not
acknowledge that there were competing affidavits from him and the discipline
hearing officer. Allen argues that an evidentiary hearing was necessary to
address these competing affidavits. Allen fails to point to specific facts in the
competing declarations that warranted an evidentiary hearing. See United
States v. Tubwell, 37 F.3d 175, 179 (5th Cir. 1994). He therefore has shown no
error by the district court in not holding an evidentiary hearing on his § 2241
petition. See id.
      Explaining that he filed motions identifying incomplete and falsified
documents, Allen contends that the district court ignored these motions in its
order and judgment. He also alleges that varying explanations as to why
prison officials ordered a rehearing in his disciplinary case hampered his
ability to prove he was entitled to habeas relief.      Allen did not raise his
challenge to the reasons for rehearing in the district court and, thus, we will



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                                  No. 18-40377

not consider the claim. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
In regard to his claim that the district court ignored certain motions and facts,
the record establishes that the magistrate judge and district court fully
addressed Allen’s claims, including his claims regarding the lack of notification
of rehearing. Allen has shown no error by the district court in its consideration
of the record. See Henson, 213 F.3d at 898.
      Allen argues that prison officials did not provide adequate notice of the
rehearing or notice of the charged offense before and during the rehearing, as
required by Wolff v. McDonnell, 418 U.S. 539, 563-70 (1977).            However,
McDonnell does not require notice of a hearing or notice of a charge during a
hearing but rather notice of the charges at least 24 hours prior to a disciplinary
hearing. See id. Allen correctly argues that this court has not addressed
whether McDonnell also requires that a prisoner receive notice of the charges
at least 24 hours prior to a disciplinary rehearing. We need not address that
issue, however, as Allen has not shown that the alleged violation had an
injurious effect on the outcome of the disciplinary hearing given the substantial
evidence of his guilt. See Williams v. Johnson, 171 F.3d 300, 307 (5th Cir.
1999); Hallmark v. Johnson, 118 F.3d 1073, 1080 (5th Cir. 1997).
      In addition, Allen challenges the district court’s conclusion that the
discipline hearing officer did not violate his due process rights by denying Allen
the right to call a witness at the initial hearing. He also alleges that the
hearing officer falsely stated that Allen did not request any witnesses at the
rehearing. Even if we assumed that Allen in fact requested a witness to testify
at the rehearing and that the hearing officer erred in not allowing a witness to
testify at both hearings, Allen cannot show prejudice because he admitted that
he engaged in, or intended to engage in, a fraudulent financial scheme. See
McDonnell, 418 U.S. at 563-70; Hallmark, 118 F.3d at 1080.



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      Allen also argues that the discipline hearing officer violated his due
process rights by not providing him advance notice that she would rely upon
an e-mail by a fellow inmate as evidence. Allen only raised this claim in his
reply brief after the respondent had filed his answer and did not argue the
issue in his objections to the magistrate judge’s report and recommendation.
We will not consider a claim raised for the first time on appeal. See Leverette
v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).
      Finally, Allen argues that the district court erred when it concluded that
he could not challenge withdrawals from his inmate trust account in a § 2241
petition.   However, Allen’s argument addressed the validity of his federal
sentence and restitution order rather than its execution. Therefore, his claim
is not cognizable under § 2241, and the district court did not err in its legal
conclusion. See Pack v. Yusuff, 218 F.3d 448, 451-52 (5th Cir. 2000); Henson,
213 F.3d at 898.
      The judgment of the district court is AFFIRMED.          The motions for
judicial notice are DENIED.




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