UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

JEREMY PINSON, Petitioner - Appellant,

v. DAVID BERKEBILE, Respondent - Appellee. No. 14-1108 (D.C. No. 1:12-CV-03006-RM) (D. Colo.)

ORDER & JUDGMENT *

Before LUCERO , TYMKOVICH , and PHILLIPS , Circuit Judges.

Jeremy Pinson, a federal prisoner, appeal s the denial of his 28 U.S.C. § 2241 application challenging his lo ss of good-time credits resulti ng from a prison disciplinary conviction. In his pro se appeal, 1 he claims that the district court erred in concluding that

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not be of material assi stance in the determination of this case. See Fed. R. App. P. 34(a) ; 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 consis tent with Fed. R. App. P. 32.1 and 10 th Cir. R. 32.1.
1 We liberally constr ue pro se filings. Erickson v. Pardus , 551 U.S. 89, 94 (2007). “[B]ut we do not assume the role of advocate” for pro se litigants. Merryfield v. Jordan , 584 F.3d 923, 924 n.1 ( 10th Cir. 2009) (internal quotation mark omitted). FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court- 2 - the prison’s disciplinary proceedings afforded him adequate due process, and he also challenges the district court’s denial of hi s motions for discovery and appointment of counsel. We find no error and affirm. 2 The disciplinary conviction resulted from an incident in which a prison guard saw Pinson put his arm through a fo od slot. As the guard approached to remove Pinson’s arm from the slot, Pinson threw an “unknown substance which hit th e [guard] in the left side of his face, eye, and upper torso.” R. at 50. When the guard couldn’t close the food slot, he soon saw why—Pinson had jammed toilet pa per in the closing mechanism. The guard filed an incident report that charged Pinson with threatening another with bodily harm, tampering with a lock device, and assault with out serious injury. Prison staff investigated, partly by reviewing video th at corroborated the guard’s account. Ultimately, the Discipline Hearing Officer found Pinson guilty of disciplinary infractions and revoked his accrued 81 days of good-time credits. Pinson filed an application for a writ of habe as corpus under 28 U.S.C. § 2241 in the Federal District Court for the District of Colo rado. He alleged that the prison had violated his First and Fifth Amendment rights in its disc iplinary process, asserting twelve separate

2 We grant Pinson’s motion to proceed in forma pauperis . We deny Pinson’s motion to expand the record b ecause the materials weren’t before the district court and he presents no r eason why the materials fall with in the “rare exception justifying the exercise of our inherent equitable power to supplement the r ecord on appeal with new material.” United States v. Wardell , No. 13-1152, 2014 WL 1677823, at *2 (10th Cir. April 29, 2014) (inter nal quotation mark omitted); United States v. Kennedy , 225 F.3d 1187, 1191 (10th Cir. 2000) (“This court will not consider material outside the record before the district court.”).- 3 - issues. The district court rejected each issu e and dismissed the application with prejudice. Pinson had also moved in the district cour t for discovery and appointment of counsel, which the district court didn’t address. But by entering final judgment, the court implicitly denied th e pending motions. See, e.g. , Keeton v. Morningstar, Inc. , 667 F.3d 877, 882 (7th Cir. 2012) (“Final judgme nt necessarily denies pending motions.”). On appeal, Pinson raises just three issues , abandoning the major ity of the arguments he raised in the district court. First, he cl aims that the district court erred by dismissing his First Amendment retaliation claim when, he says, he presented sufficient facts showing that the guard fabricated the incide nt report in response to his having filed grievances against the guard. See Smith v. Maschner , 899 F.2d 940, 947 (10th Cir. 1990) (“[R]etaliation for filing lawsuits and administrative grievances violates both the inmate’s right of access to the courts and the inmate’s First Amendment rights.” (internal quotation marks omitted)). Second, althou gh he hadn’t raised his me ntal competency during the disciplinary process, Pinson argued in the di strict court that the hearing officer should have conducted a mental exam under Bureau of Prisons regulations . Now he challenges the district court’s use of records in other litigation to conclude th at he didn’t require a mental exam during the disciplinary process. A nd third, he challenges the district court’s implicit denial of his motion for discovery a nd the appointment of counsel. We reject each argument. 3

3 Pinson raises a number of new argumen ts in his reply brief: “the right to assistance at a disciplinary proceeding, now applicable to persons who are illiterate (continued)- 4 - We review the district court’s factual findi ngs for clear error and its legal conclusions de novo. Palma-Salazar v. Davis , 677 F.3d 1031, 1035 (10th Cir. 2012). An application for a writ of habeas corpus “under 28 U.S.C. § 2241 attacks the exec ution of a sentence rather than its validity.” Howard v. U.S. Bureau of Prisons , 487 F.3d 808, 811 (10th Cir. 2007). We may grant relief only if an appli cant “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U. S.C. § 2241(c)(3). “Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell , 418 U.S. 539, 556 (1974). But “an inmate ’s liberty interest in his earned good time credits cannot be denied without the minimal safeguards afforded by the Due Process Clause of the Fourteenth Amendment.” Mitchell v. Maynard , 80 F.3d 1433, 1444 (10th Cir. 1996) (interna l quotation marks omitted); see Howard , 487 F.3d at 811 (citing Mitchell in the context of a federal prisoner rais ing due-process challenges to his loss of good-time credits). For a disc iplinary proceeding to co mply with the minimum procedural due process require ments, a prisoner must receiv e: (1) advance written notice, (2) an opportunity to call witn esses and present documentary ev idence in his defense, and or faced with issues to [sic ] complex for them to unders tand, should also extend to persons with serious mental illness,” A ppellant’s Reply Br. 2; the “Rehabilitation Act” requires assistance at a disciplin ary proceeding for th e mentally ill, id. ; the Tenth Circuit “should adopt a per se rule th at serious mental i llness strongly favors appointment of counsel,” id. at 5–6; the district court erred by not reviewing the video; and that either the hearing officer or the district court violated Pinson’s constitutional rights by not showing him the vi deo. We decline to address these new arguments on appeal. Iqbal v. Holder , 693 F.3d 1189, 1195 n.4 (10th Cir. 2012) (“[W]e do not consider arguments raised for the first time in a reply brief.”).- 5 - (3) a written statement of the evidence and reas oning that supports the disciplinary action. Superintendent v. Hill , 472 U.S. 445, 454 (1985). Addi tionally, “revocation of good time does not comport with the minimum requireme nt of procedural due process unless the findings of the prison disciplinary board are su pported by some evidence in the record.” Id. (citation and internal quotation marks omitted). “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.” Id. We may uphold the hearing officer’s decision “even if the evidence su pporting the decision is meager.” Howard , 487 F.3d at 812 (internal qu otation marks omitted). On appeal, Pinson doesn’t cha llenge that he received notice, an opportunity to present evidence to the hearing officer, and a written statement from the hearing officer. Instead, he challenges whether enough evidence supported the hearing officer’s findings. We reject Pinson’s retaliation claim that the guard fabricated the incident report because Pinson had reported the guard for mi sconduct. “[A]n inmate cannot state a claim of retaliation for a disciplinary charge involvi ng a prison rule infraction” when a hearing officer finds that the inmate committed “the actual behavior underlying that charge” and affords the inmate “ad equate due process.” O’Bryant v. Finch , 637 F.3d 1207 , 1215 (11th Cir. 2011). Here, the hearing officer found that Pinson committed the misbehavior and that decision comported with due process be cause some evidence supported the hearing officer’s decision. The hearing officer reviewed the guard’s incident report as well as the investigating officer’s report recounting what he had seen on the video. Both the report- 6 - and the video show that Pinson was discip lined for his misbehav ior and not for any retaliation. 4 See Maschner , 899 F.2d at 949–50 (stating that a successful retaliation claim requires proof “that ‘but for’ the retaliatory motive, the incidents to which [the plaintiff] refers, including the disciplinary acti on, would not have taken place”). We also reject Pinson’s challenge on appeal that he should have received a mental examination during the disciplinary process. Although Pinson didn’t contest his mental fitness at the disciplinary hearing, we still consider the issue beca use Warden Berkebile stated at the district court that he didn’t “int end to assert the defense of failure to exhaust administrative remedies.” R. at 20. Pinson cl aims that the district court erred by assessing his competence based on a revi ew of his abilities as manife sted in “numerous public records of litigation” that he had filed in ot her proceedings. Pinson now says that these records were prepared by “jailhouse lawyers. ” Appellant’s Br. 9. He argues the district court should have relied on “the opinions of qualified mental health experts” to determine that he “must be competent and responsible.” Id. Pinson’s argument ultimately a ttacks the hearing officer’s compliance with Bureau of Prisons regulations. The relevant regulation requires a mental exam only “[i]f it appears

4 Although Pinson claims that the hearin g officer “refused to view the video,” Appellant’s Br. 11, nothing in the record shows that Pinson asked the hearing officer to do so. At the hearing, Pinson conte nded only that the video didn’t show the charged misconduct. The hearing officer st ated that he had considered Pinson’s defense, which included Pins on’s view of what the video showed and didn’t show, but found the guard and the investigati ng officer more credible than Pinson. Reweighing the credibility of witnesses isn’ t part of our minimal due process review. Howard , 487 F.3d at 812.- 7 - [the prisoner is] mentally ill at any stage of the discipline pr ocess.” 28 C.F.R. § 541.6. On this record—even excluding th e litigation documents that the district court bolstered its decision with—we conclude that the hearing of ficer complied with 28 C.F.R. § 541.6. In a declaration submitted to and relied on by the district court, the hearing officer declared that Pinson never appeared “mentally ill at any stage of the disciplinary process,” explaining as follows: It appeared to me that Applicant was able to understand the nature of the disciplinary proceedings because he stated he did not commit the prohibited acts at issue, requested and obtained a staff repr esentative, appeared to consult with the staff representative during the proceedings , submitted a witness list, and submitted a written statement for consider ation. It appeared to me that Applicant was able to help in his own defense dur ing the disciplinary proceedi ngs for the same reasons. At no time during the disciplinary procee dings did Applicant claim that mental illness impaired his ability to pa rticipate in the DHO hearing. R. at 42. This declaration provides strong ev idence that Pinson never appeared mentally ill and that the hearing officer didn ’t violate 28 C.F. R. § 541.6. Further, we reject Pinson’s argument that the district court erred in not addressing—and thus in implicitly deny ing—Pinson’s motion for discovery and appointment of counsel. On these issues, we review for an abuse of discretion. World Pub. Co. v. U.S. Dep’t of Justice , 672 F.3d 825, 832 (10th Cir. 2012) (discovery rulings); Hill v. SmithKline Beecham Corp. , 393 F.3d 1111, 1115 (10th Cir. 2004) (appointment of counsel). First, we address Pinson’s discovery issue. At the district court, he sought his “Psychology and Psychiatric” records for th e timeframe between the incident and the disciplinary hearing, as well as other docu ments from a separate incident that he- 8 - thought relevant to his mental competency. R. at 87. He claims that these documents would have proved that he was mentally ill and not responsible for his actions. “A habeas petitioner, unlike the usual civ il litigant in federal court, is not entitled to discovery as a matter of ordinary course.” Curtis v. Chester , 626 F.3d 540, 549 (10th Cir. 2010). But a district court may permit discovery if an applicant presents “good reason to believe [the applicant] may be able to demonstrate he is entitled to relief.” Id. Suffice it to say that the discovery motion was to get documents proving Pinson’s mental illness during the disciplinar y process. But we have already stated that the standard was whether Pinson appeared mentally ill, and we have found that he didn’t. The requested documents wouldn’t ch ange that determination. In sum, the district court didn’t abuse its discreti on in denying Pinson’s discovery motion. Second, we address Pinson’s claim that the district court erred by denying his motion for appointed co unsel. He claims that the court denied the motion while knowing that he was schizophrenic and th en “faulted [him] for failing to prove his own lack of mental capacity.” Appellant’s Br. 8–9. A district court may appoint counsel for § 2241 app licants if it “determines that the interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(B). But “there is no constitutional right to counsel beyond the appeal of a criminal conviction.” Swazo v. Wyo. Dep’t of Corrs. State Penitentiary Warden , 23 F.3d 332, 333 (10th Cir. 1994). Based on our review of the record, we conclude that the district court didn’t abus e its discretion by finding that the interests- 9 - of justice didn’t require appointing Pi nson counsel because Pinson has failed to present even a plausi ble claim for relief. Accordingly, we affirm the district c ourt’s order denying Pi nson habeas relief, discovery, and appointment of counsel.

Entered for the Court

Gregory A. Phillips Circuit Judge