* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** The Honorable Clarence A. Brimmer, District Judge, United States District Court for the District of Wyoming, sitting by desig nation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 28 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

MAULANA MODIBO EUSI,

Petitioner-Appellant,

v. ROBERT A. HOOD, Warden, United States Penitentiary,

Respondent-Appellee. No. 04-1046 (D.C. No. 00-S-1736 (BNB))

(D. Colo.)

ORDER AND JUDGMENT *

Before HARTZ , and BALDOCK , Circuit Judges, and BRIMMER , ** District Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of-2-

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Petitioner Maulana Modibo Eusi, a federal prisoner proceeding pro se, appeals the order dismissing his petition filed und er 28 U.S.C. § 2241, seeking expungement of a disciplinary conviction for “attem pted killing” and possession of a weapon. He contends that the conviction was o btained in violation of his constitutional rights and prison policies, and ther efore it was used improperly to place him in disciplinary confinement and to deny h im parole. A federal magistrate judge recommended dismissal, and the dis trict court adopted the recommendation. The court also denied Mr. Eusi’s t wo motions to reconsider. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm. Timely Notice of Appeal As a preliminary matter, we hold that Mr. Eusi’s no tice of appeal was timely, even though it was filed more than sixty days after the order of dismissal.
See Fed. R. App. P. 4(a)(1)(B) (notice of appeal may b e filed within 60 days after judgment when federal officer or agency is a party) . The district court did not enter a separate judgment under Fed. R. Civ. P. 58, so the time to appeal did not begin to run and Mr. Eusi’s motion to reconsider tolled the time to appeal. See Hilst v. Bowen , 874 F.2d 725, 726 (10th Cir. 1989) (motion to rec onsider filed before judgment is a tolling motion). Mr. Eusi’s n otice of appeal, filed-3-

February 9, 2003, was filed within 60 days of the J anuary 16, 2003, order denying reconsideration. Therefore, the notice of appeal was timely. See id. ; Fed. R. App. P. 4(a)(4)(A)(iv). Background On January 3, 1997, a correctional officer at the B ureau of Prisons (BOP) was attacked by an inmate he identified as Mr. Eusi . According to a Disciplinary Hearing Officer (DHO), Mr. Eusi struck the officer with his fists and the officer’s flashlight, causing severe injuries to the officer. The Federal Bureau of Investigation conducted an investigation and ultimately decided not to file charges against Mr. Eusi, at which time he was made available for prison disciplinary proceedings. Following the incident, including the time during the FBI’s investigation, Mr. Eusi was held in administr ative detention. Prison disciplinary proceedings were filed against Mr. Eus i on June 25, 1998, and a hearing before a DHO was held on September 10, 1998 . At the conclusion of the hearing, the DHO found Mr. Eusi guilty of attempted killing and possession of a weapon (the officer’s flashlight). Mr. Eusi’s admi nistrative appeals were denied. Mr. Eusi received 120 days of disciplinary segregat ion plus seventy-two months’ placement in the control unit, and various privileg es were withdrawn. In addition, he was denied parole in Illinois, where he had sust ained the convictions underlying his incarceration.-4-

After the district court denied relief, Mr. Eusi fi led this appeal. He continues to argue that he was convicted on a “sign ed confession” that does not exist. He also renews his claims that he was denie d his due process rights in the disciplinary proceedings because he was not informe d of the evidence against him in advance of the hearing, and was thereby prevente d from marshaling a defense to the charges. He further maintains that BOP pers onnel failed to conduct an adequate investigation of the incident, withheld ex culpatory evidence, and conspired to manufacture false evidence against him . Finally, he contends that the BOP failed to follow prison rules regarding dea dlines for filing the administrative charges against him.
Discussion Because he is a federal prisoner, Mr. Eusi is not r equired to obtain a certificate of appealability for review of the orde r denying his § 2241 petition. Bledsoe v. United States , 384 F.3d 1232, 1235 (10th Cir. 2004). We review de novo the district court’s decision to deny a writ under § 2241. Id. We have carefully reviewed the record on appeal and the parties’ briefs. Applying the standard set out above, we affirm the district court’s order denying a writ under § 2241 for the same reasons stated in th e magistrate judge’s February 10, 2003, recommendation, the district cou rt’s October 29, 2003, order-5-

denying relief, and the district court’s two orders denying reconsideration, entered January 16, 2004, and March 2, 2004. Conclusion Mr. Eusi has renewed in this court his motion to pr oceed without prepayment of costs and fees. The motion is GRANTE D. Mr. Eusi is reminded that he is obligated to continue making partial pay ments until the entire fee has been paid. The judgment of the district court is AFFIRMED. Th e mandate shall issue forthwith.

Entered for the Court

Harris L Hartz Circuit Judge