Owens-El v. Wiley , 183 F. App'x 775 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 9, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JAM ES JOSEPH O W ENS-EL,
Petitioner - A ppellant, No. 05-1470
v. D. Colorado
W ARDEN W ILEY, ADX Florence, (D.C. No. 05-cv-1464-ZLW )
Colo.,
Respondent - Appellee.
OR D ER AND JUDGM ENT *
Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.
James Joseph Owens-El, a federal prisoner proceeding pro se, filed in the
United States D istrict Court for the District of Colorado an application for a writ
of habeas corpus under 28 U.S.C. § 2241 on August 4, 2005, and an amended
application on August 16, 2005. He alleges that in 1991 he informed prison
officials who were preparing to release him that he had another sentence to serve.
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
He sought and was denied a meritorious-act award for this disclosure. According
to M r. Owens-El, the denial violated a number of his rights and the court should
grant him either release on parole or good-time credit he would have received
with the award. The district court denied the application and dismissed the case
without prejudice for failure to state a claim upon which relief may be granted.
M r. Owens-El filed a notice of appeal on October 7, 2005. W e have jurisdiction
under 28 U.S.C. § 1291 and affirm.
The allegations in M r. Owens-El’s application are cryptic, often opaque, so
we summarize them as best w e can: W hile M r. Owens-El was incarcerated in
M arion, Illinois, in July 1990, three prison officials signed a form stating that he
w ould be granted release on parole from his sentence for postal robbery. He
notified them that he still had another sentence to serve arising from a conviction
in California. One of the officials replied that the sentence had been reversed and
that the prison’s records showed that the sentence had been removed from his
record. Two of those same officials returned to his cell later that day with the
manager of Inmate Systems, who told him that there was no record of any other
conviction. M r. Owens-El then provided the manager with a copy of a
memorandum opinion from 1988 denying his motion for a new trial; and the
manager called the court clerk, who verified that the conviction and sentence still
stood. The manager told M r. Owens-El that he ought to apply for “a meritorious
aw ard” for his good deed, and that M r. Owens-El had “saved the jobs of more
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than 16 staff members.” R. Vol. I Doc. 4 at 7. W hen M r. Owens-El filed for an
award in M arch 1991, however, the w arden denied it on the basis of the false
statement that Inmate Systems had been aware of and “keeping track” of the
sentence all along. Id. at 12. M r. Owens-El’s appeal of the warden’s decision
was denied on M ay 24, 1991.
M r. Owens-El’s habeas corpus application, filed some 14 years later,
claimed that the denial of a meritorious-act award (1) deprived him of due
process, apparently because the denial was based on false and fraudulent
information; (2) constituted fraud in the inducement; (3) violated the Fifth,
Eighth, and Ninth Amendments in unspecified ways; (4) violated his right to
equal protection; and (5) was an act of retaliation against him. He also claimed
that, in deciding whether to grant him the award, (6) the warden violated his Sixth
Amendment rights to a fair trial and to confront witnesses against him. As relief,
he requested that he be released on parole or that his lost or forfeited good-time
credits be restored. (Despite the suggestion that he lost or forfeited good-time
credits, he points to no action causing him to lose such credits; his complaint, as
far as w e can tell, is only that he w as denied credits he should have received.)
M r. Owens-El’s claim was appropriately brought as a habeas application because
the relief he seeks is either immediate release from custody or a reduction in the
period of incarceration (by granting good time). See McIntosh v. United States
Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997) (“A habeas corpus
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proceeding attacks the fact or duration of a prisoner's confinement and seeks the
remedy of immediate release or a shortened period of confinement.” (internal
quotation marks omitted)).
Although we construe pro se pleadings liberally, see Ledbetter v. City of
Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003), M r. Owens-El must still allege
sufficient facts on which a legal claim can be based. He cannot rely on vague and
conclusory allegations that his rights have been violated. See Fogle v. Pierson,
435 F.3d 1252, 1263 n.7 (10th Cir. 2006). Nor is it our role to identify and make
M r. O wens-El’s legal arguments for him. See Garrett v. Selby, Connor, M addux
& Janer, 425 F.3d 836, 840 (10th Cir. 2005) (“[A]lthough we make some
allowances for the pro se plaintiff’s failure to cite proper legal authority, his
confusion of various legal theories, his poor syntax and sentence construction, or
his unfamiliarity with pleading requirements, the court cannot take on the
responsibility of serving as the litigant's attorney in constructing arguments and
searching the record.” (internal quotation marks, brackets, and citation omitted)).
W e agree with the district court that M r. Owens-El has failed to plead facts
adequately in support of the claims he raises.
The crux of M r. Owens-El’s application is that the warden’s denial of the
“meritorious act award” violated his due-process rights. It is not entirely clear
from his application what he means by a “meritorious act award,” but we assume
that he is referring to a “special award” under 28 C.F.R. § 545.29, which provides
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that “Inmates who perform exceptional services not ordinarily a part of the
inmate’s regular assignment may be granted a special award . . . .” For
M r. Owens-El to have a due-process claim, he must allege the deprivation of a
liberty interest. See Lybrook v. M embers of Farmington M un. Sch. Bd. of Educ.,
232 F.3d 1334, 1341 (10th Cir. 2000). But because the granting of a special
award is discretionary (“may be granted”), M r. Owens-El has no liberty interest in
such an award. Although it is true that good-time credits already earned may not
be revoked “without the minimal safeguards afforded by the D ue Process Clause
of the Fourteenth Amendment,” M itchell v. M aynard, 80 F.3d 1433, 1444 (10th
Cir. 1996) (internal quotation marks omitted), there is no liberty interest in
receiving good-time credits when discretion to grant them has been vested in
prison authorities. See Fogle, 435 F.3d at 1262 (10th Cir. 2006) (no liberty
interest in potentially receiving good-time credits when underlying Colorado
statute provided such credits were awarded solely at the discretion of prison
officials); Templeman v. Gunter, 16 F.3d 367, 370 (10th Cir. 1994) (same). W e
also note that even if the special award were granted, it would not necessarily be
granted in the form of time credits. See 28 C.F.R. § 545.29 (b) (“The special
award may be given in the form of a monetary payment in addition to any other
award (e.g., extra good time) given.”). M r. Owens-El therefore has no liberty
interest in receiving a special award, and has failed to state a claim under the Due
Process Clause.
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M r. Owens-El’s remaining claims also can be dealt with readily. He claims
that the warden’s statement that Inmate Systems had been aware of the California
conviction all along was a fraudulent inducement to contract; but he fails to
identify any contract. Also, he quotes in full the Fifth, Eighth, and Ninth
Amendments but makes no allegations whatsoever regarding his rights under
these amendments or how they might have been violated.
He alleges that denial of the award violated his right to equal protection;
quotes both the Fourteenth Amendment to the Constitution and 28 C.F.R.
§ 551.90 (“Bureau staff shall not discriminate against inmates on the basis of
race, religion, national origin, sex, disability, or political belief. This includes the
making of administrative decisions and providing access to work, housing and
programs.”); and states that he was discriminated against on the basis of political
belief. He also claims that denial of the award was an act of retaliation for his
previous conviction for assaulting a corrections official, which claim we construe
as a claim of another equal-protection violation. For none of these equal-
protection claims, however, has he identified how he was treated differently from
other similarly situated inmates. See Penrod v. Zavaras, 94 F.3d 1399, 1406
(10th Cir. 1996).
Finally, M r. Owens-El’s Sixth Amendment claim appears to be based on his
allegation that the warden produced no evidence to support his denial of the
award, and that “[t]he W arden has never produced a witness against me.”
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R. Vol. I Doc. 4 at 24. By its own terms, however, the Sixth Amendment applies
only to criminal trials, see Bennett v. Nat’l Transp. Safety Bd., 66 F.3d 1130,
1136 (10th Cir. 1995), and M r. Owens-El contests only the denial of a
discretionary special award while in prison.
In sum, we A FFIRM the judgment of the district court. M r. Owens-El’s
motion to add new facts out of time is D ENIED as moot, and we DENY his
motion to proceed on appeal in form a pauperis.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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