Franklin v. Santistevan

                 UNITED STATES DISTRICT COURT                            
                    DISTRICT OF NEW MEXICO                               

BRYCE FRANKLIN,                                                           

    Petitioner,                                                          
v.                                               Civ. No. 21-304 WJ/GJF   

WAYNE SANTISTEVAN, Warden, and,                                           
ATTORNEY GENERAL for the                                                  
STATE OF NEW MEXICO,                                                      

    Respondents.                                                         

        PROPOSED FINDINGS AND RECOMMENDED DISPOSITION                    

    THIS MATTER comes before the Court1 on a Petition for Writ of Habeas Corpus Under 
28 U.S.C. § 22412 [ECF 1], Respondents’ Answer [ECF 9], and Petitioner’s Reply [ECF 20].  
Having reviewed the briefing, the record, the relevant law, and otherwise being fully advised, this 
Court recommends the Petition be DENIED for the reasons that follow.      
I.  RELEVANT PROCEDURAL AND FACTUAL BACKGROUND                           
    Bryce Franklin (“Franklin”) is an inmate serving a term of life imprisonment plus 7½ years 
in the custody of the New Mexico Corrections Department (“NMCD”) for a 2012 murder 
conviction.  See  State  v.  Bryce  L.  Franklin,  No.  D-1333-CR-2012-00184  (Aug.  24,  2015) 
(Judgment/Order),  https://researchnm.tylerhost.net/CourtRecordsSearch/ViewFiling/e99a6564f1 

1 Chief U.S. District Judge William Johnson referred this case to the undersigned to conduct hearings, if warranted, 
including evidentiary hearings, and to perform any legal analysis required to recommend an ultimate disposition of 
the case. See ECF 8. The Court concludes that no evidentiary hearing is required or permitted. See 28 U.S.C. 
§ 2254(e)(2).                                                             

2 As explained below, Plaintiff filed his Petition under 28 U.S.C. § 2254, but the Court has construed it as one under 
28 U.S.C. § 2241. See ECF 6 at 1 (citation omitted).                      
                                                                          
d05df19c63a3d0808c299c.3  In  May  23,  2019,  while  incarcerated  at  the  Guadalupe  County 
Correctional  Facility  (“GCCF”),  Franklin  was  charged  with  the  category  A,  major-level 
disciplinary offense of dealing in dangerous drugs. ECF 9-1 at 275 (Ex. Q). According to the 
underlying misconduct report, this charge arose from prison officials’ discovery of a substance 
that field-tested positive for buprenorphine4 in Franklin’s incoming legal mail. Id. Following the 

issuance of the misconduct report and an investigation, Franklin appeared at a June 24, 2019 
disciplinary hearing at which he was advised of, and denied, the charge against him. Id. at 271. In 
addition to denying the charge, Franklin made a statement, moved for dismissal on various 
grounds, and requested that the substance in question be tested by an outside laboratory. Id. His 
motions and his request for outside testing were denied. Id. After a review of the evidence and 
testimony presented at the hearing, the disciplinary hearing officer found Franklin guilty of dealing 
in dangerous drugs. Id. As a result, Franklin forfeited 120 days of visitation privileges. Id. at 270. 
    Franklin filed a disciplinary appeal in which he argued first that GCCF failed to follow 
NMCD disciplinary policies, both because the disciplinary hearing was conducted outside the 

applicable time limits (i.e., within seven working days of discovery of the substance in his 
incoming mail) and because GCCF refused his request for outside testing. Id. at 294–96 (Ex. R). 
In addition, Franklin asserted that the disciplinary decision was based on insufficient evidence 
because (1) he was not aware that buprenorphine was in his incoming mail, (2) he could not control 
what was sent to him, and (3) he never had possession of the substance. Id. On August 6, 2019, 
Franklin’s disciplinary appeal was denied. Id. at 292.                    

3 The Court may take judicial notice of the official records of New Mexico courts. See United States v. Ahidley, 486 
F.3d 1184, 1192 n.5 (10th Cir. 2007) (explaining that a federal court may take judicial notice of publicly filed records 
in other courts concerning matters that bear upon the disposition of the case at hand).   
4 “Buprenorphine is an opioid medication used to treat opioid use disorder . . . , acute pain, and chronic pain.” 
www.drugs.com/buprenorphine.html (last visited Apr. 9, 2024).             
    On September 5, 2019, Franklin filed a state petition for writ of habeas corpus, asserting 
arguments that mirrored those in his disciplinary appeal: that GCCF failed to follow the applicable 
time limits for holding a hearing; that prison officials refused to test the substance at issue in an 
outside laboratory; and that there was no evidence to support the misconduct report or the 
disciplinary conviction against him. Id. at 1, 8 (Ex. A). Although Franklin claimed a liberty interest 

in his forfeited visitation privileges, he insisted that his due process rights were violated even in 
the absence of a cognizable liberty interest, because there was no evidence to support his 
disciplinary conviction. Id. at 7. Franklin further asserted that the disciplinary hearing officer failed 
to provide a meaningful explanation of the disciplinary findings against him. Id. at 8-9.   
    The state district court dismissed Franklin’s state habeas petition, reasoning that although 
visitation privileges cannot be indefinitely suspended absent process, Franklin’s privileges were 
suspended for a definite period of 120 days. Id. at 242 (Ex. N). In the state court’s view, Franklin’s 
120-day suspension of visitation privileges did not rise to the level of a protected liberty interest. 
Id. Moreover, in terms of process, the court determined that Franklin “was provided more than that 

to which he was entitled under law.” Id. at 243 (citing Cordova v. Lemaster, 96 P.3d 778 (N.M. 
2004)). The court observed that Franklin was given notice of the charges against him and a 
disciplinary hearing and, further, that he was permitted to appeal to both the Warden and the 
Secretary of Corrections. Id. at 242. Franklin next filed a petition for writ of certiorari [id. at 245–
64 (Ex. O)], which the New Mexico Supreme Court denied on February 26, 2021 [id. at 269 (Ex. 
P)].                                                                      
    On April 5, 2021, Franklin filed his Petition for Habeas Corpus under 28 U.S.C. § 2254 in 
this Court. See ECF 1. After its initial review, this Court determined that the Petition “should be 
construed under 28 U.S.C. § 2241,” as it “attacks ‘the execution of a sentence,’ including ‘prisoner 
disciplinary matters[,]’” rather than the validity of his sentence. ECF 6 at 1 (citing McIntosh v. 
U.S. Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997)).                  
II.  PARTIES’ ARGUMENTS                                                  
    In the instant federal habeas petition, Franklin seeks a declaration that prison officials 
violated his due process rights as well as expungement of the underlying misconduct report from 

his prison file. ECF 1 at 11. He advances three grounds for relief: (1) the disciplinary finding 
against him was unsupported by evidence; (2) he did not receive a meaningful explanation as to 
why he was found guilty of the offense of dealing in dangerous drugs; and (3) prison authorities 
ignored his request for outside testing. ECFs 1 at 12–13; 20 at 3–5.      
    For their part, Respondents urge the Court to deny the Petition and dismiss this action with 
prejudice for three primary reasons. First, they contend that the declarative and injunctive relief 
that Franklin seeks is not available in a federal habeas proceeding. ECF 9 at 6–8. Second, they 
insist that the loss of visitation for a determinate period does not implicate a protected liberty 
interest that triggers due process protections. Id. at 8–9. Finally, Respondents contend that 

Franklin’s due process claims otherwise fail on the merits. Id. at 9–14.  
III.  ANALYSIS                                                            
    Certain challenges to prison disciplinary proceedings are properly brought under 28 U.S.C. 
§ 2241 as challenges to the fact or duration of confinement. See McIntosh, 115 F.3d at 812; 
Leatherwood v. Allbaugh, 861 F.3d 1034, 1041 (10th Cir. 2017). But, critically, claims cognizable 
under § 2241 are limited to those in which the petitioner “seeks either immediate release from, or 
a shortened period of, physical imprisonment, i.e., placement on parole or in a parole-like custodial 
setting, or immediate release from, or a shortened period of, custody altogether.” Palma-Salazar 
v. Davis, 677 F.3d 1031, 1037 n.2 (10th Cir. 2012) (citations omitted). For instance, when a federal 
habeas petition challenges disciplinary actions revoking good-time credits—and thereby seeks to 
shorten the duration of imprisonment—such a petition is properly brought pursuant to § 2241. See 
Boyce v. Ashcroft, 251 F.3d 911, 914, vacated as moot, 268 F.3d 953 (10th Cir. 2001) (reasoning 
that “demands to restore good time credits are within the core of [§ 2241] because they attack the 
duration of the prisoner’s physical confinement”) (citing Preiser v. Rodriguez, 411 U.S. 475, 485–

89 (1973)); Untied States v. Garcia, 470 F.3d 1001, 1003 (10th Cir. 2006) (“Although Boyce was 
vacated as moot on rehearing, we are persuaded by its reasoning.”). In contrast, objections to 
disciplinary sanctions that involve merely the restriction of inmate privileges, such as mail, 
telephone, or visitation privileges, are more properly characterized as challenges to conditions of 
confinement and are not cognizable in a federal habeas corpus action. See Pinson v. Berkebile, 553 
F. App’x 852, 853 (10th Cir. 2014) (concluding that a petitioner’s challenge to a prison’s 
restrictions of his mail and telephone privileges must be through a civil rights action, not through 
federal habeas proceedings); Ricco v. Conner, 146 F. App’x 249, 251–53 (10th Cir. 2005) 
(determining that “the district court erred by failing to recognize that § 2241 is an improper vehicle 

for” claims related to disciplinary sanctions that temporarily restricted visitation, commissary, and 
telephone privileges).                                                    
    Here, Franklin maintains that he is entitled to federal habeas relief because prison officials 
violated his due process rights during disciplinary proceedings in which he was found guilty of 
dealing in dangerous drugs. See ECFs 1 at 11–13; 20 at 1. For relief, he seeks a declaration that 
his due process rights were violated and expungement of the underlying misconduct report. ECF 
1 at 11. Notably, the record reveals that, as a consequence of his disciplinary conviction, Franklin 
did not lose any good-time credits, but instead lost 120 days of visitation privileges. See ECF 9-1 
at 270; see also id. at 7 (Franklin arguing, in his state habeas petition, that he was sanctioned to a 
loss of 120 days of visitation, which in his view implicates a liberty interest for which he was 
entitled to due process) (citing Cordova, 96 P.3d 778). Construing Franklin’s claims broadly, he 
appears to suggest that Respondents impinged upon his protected liberty interest in visitation 
privileges by subjecting him to disciplinary proceedings without due process.5 See ECFs 1 at 5; 20 
at 4.                                                                     

    Respondents,  on  the  other  hand,  maintain  that  the  relief  Franklin  seeks  is  simply 
unavailable in a federal habeas proceeding. ECF 9 at 6. To this end, they emphasize that “the Tenth 
Circuit has unambiguously stated that . . . ‘a prisoner who challenges the conditions of his 
confinement must do so through a civil rights action.’” Id. (quoting Palma-Salazar, 677 F.3d at 
1035). Respondents urge this Court to follow the lead of Judges Ritter and Vázquez of this District, 
who concluded in a previous federal habeas action brought by Franklin that due process claims 
challenging a disciplinary action that had no impact on Franklin’s good-time credits or the duration 
of his imprisonment were not cognizable under 28 U.S.C. § 2241.6 Id. at 7 (citing Franklin v. 
Lucero, No. CIV-18-1239 MV/JHR, 2019 WL 6075290 (D.N.M. Oct. 17, 2019)).  


5 Alternatively, Franklin suggests that he need not demonstrate a protected liberty interest to support his due process 
claims here, because there was “no evidence” to support the disciplinary charge against him for dealing in dangerous 
drugs. ECF 20 at 3. The Court observes that the cases upon which Franklin relies for this proposition were decided in 
the context of criminal convictions rather than prison disciplinary sanctions and therefore the Supreme Court, in the 
cited cases, did not discuss the need to demonstrate a protected liberty interest. See id. (citing California v. Green, 399 
U.S. 149, 187 n.20 (1970) (holding that “[d]ue process does not permit a [criminal] conviction based on no evidence, 
. . . or on evidence so unreliable and untrustworthy that it may be said that the accused has been tried by a kangaroo 
court”) (internal citations omitted); Thompson v. City of Louisville, 362 U.S. 199, 206 (1960) (“Just as [a criminal 
c]onviction upon a charge not made would be sheer denial of due process, so is it a violation of due process to convict 
and punish a man without evidence of his guilt.”), rev’d, Jackson v. Virginia, 443 U.S. 307, 320 (1979) (holding that 
the “Thompson ‘no evidence’ rule is simply inadequate to protect against misapplications of the constitutional standard 
of reasonable doubt). Franklin has not pointed the Court to any case to support his position that he need not 
demonstrate a protected liberty interest to establish a due process claim in the context of disciplinary proceedings. But 
see Stephens v. Thomas, 19 F.3d 498, 501 (10th Cir. 1994) (reasoning that “[a] state inmate’s due process rights are 
implicated only when a state’s actions impinge on a protected liberty interest”) (citation omitted). Even if Franklin 
could pursue a due process claim without first demonstrating a protected liberty interest, the Court cannot accept his 
underlying premise that there was, in fact, no evidence to support the disciplinary finding against him here. See infra 
pp. 11-14.                                                                
                                                                          
6 In Franklin v. Lucero, No. CIV-18-1239 MV/JHR, 2019 WL 6075290 (D.N.M. Oct. 17, 2019), Franklin challenged 
the step-regression method used by NMCD’s Predatory Behavior Management Program and sought a declaration that 
    The Court agrees that Franklin’s claims here are not suited to federal habeas relief, as they 
do not challenge the execution of a sentence or its validity.7 See 28 U.S.C. § 2241, § 2254. Even 
construing his habeas petition as one under § 2241 rather than § 2254, the Court cannot say that 
the disciplinary sanction about which Franklin complains impacted the fact or the duration of his 
imprisonment. See McIntosh, 146 F. App’x at 811–12 (while “a § 2241 attack on the execution of 

a sentence may challenge some matters that occur at prison, such as deprivation of good-time 
credits and other prison disciplinary matters,” such challenges are only permitted when the action 
“affect[ed] the fact or duration of the [petitioner’s] custody.”). Nor does Franklin’s federal habeas 
petition seek a shortened period of confinement. As such, Franklin’s claims are not cognizable 
under 28 U.S.C. § 2241.8                                                  
    Even if Franklin could pursue his claims in the context of a federal habeas proceeding, he 
fails to demonstrate a violation of his due process rights. To begin, conduct only implicates an 
inmate’s due process rights if it “impinge[s] on a protected liberty interest.” Stephens v. Thomas, 
19 F.3d 498, 501 (10th Cir. 1994) (citing Vitek v. Jones, 445 U.S. 480, 488–90 (1980)). Put another 

way, “[i]ndviduals claiming procedural protections must first establish that a constitutionally-
protected interest is at stake.” Schneider v. Jones, No. 09-1169-M, 2011 WL 1467755, at *2 (W.D. 


the method violated his due process rights. Id. at *1–2. In evaluating his habeas petition, Judge Ritter observed, and 
Judge Vázquez agreed, that the step-regression method Franklin challenged had not impacted his good-time credits or 
the duration of his imprisonment, and, thus, his claims were not cognizable under 28 U.S.C. § 2241. Id. at *2; Franklin 
v. Lucero, No. 18cv1239 MV/JHR, Doc. 18 (D.N.M. Nov. 15, 2019) (Order Adopting Proposed Findings and 
Recommended Disposition).                                                 
                                                                          
7 This is not to say that there are no available means for an inmate to seek declaratory or injunctive relief based upon 
the deprivation of visitation privileges in violation of due process. Rather, 42 U.S.C. § 1983 provides a remedy for 
inmates who are successful in their “constitutional challenges to . . . prison decisions[,] including . . . suspension of 
privileges.” Requena v. Roberts, 552 F. App’x 853, 856 (10th Cir. 2014). But, here, Franklin has chosen to pursue due 
process claims in the context of a federal habeas petition rather than a civil rights action. This he cannot do. 
                                                                          
8 To the extent Franklin asserts that his disciplinary conviction for dealing in dangerous drugs denied him due process 
under state law [see ECF 1 at 13], that claim fails for an additional and independent reason: that is, “claims of state 
law violations are not cognizable in a federal habeas action.” Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000). 
Okla. Mar. 18, 2011) (citing Wilkinson v. Austin, 545 U.S. 209, 221 (2005)). “Protected interests 
may arise from the Constitution itself or from expectations created by state law.” Id. (citation 
omitted). But, here, Franklin simply fails to identify any protected interest at stake. 
    Even so, the Court acknowledges that the denial of an inmate’s visitation privileges in some 
circumstances could constitute a constitutionally-protected liberty interest. In Sandin v. Conner, 

the United States Supreme Court clarified that, in the prison context, liberty interests protected by 
due process are “generally limited to freedom from restraint which . . . imposes atypical and 
significant hardship on the inmate in relation to the ordinary incidents of prison life.” 515 U.S. 
472, 484 (1995). Following Sandin, the Supreme Court in Overton v. Bazzetta, 539 U.S. 126 
(2003) suggested that “[i]f the withdrawal of all visitation privileges were permanent or for . . . 
much longer [than two years], or if it were applied in an arbitrary manner to a particular inmate,” 
such a deprivation might implicate the inmate’s due process rights. Id. at 137. In addition, the New 
Mexico Supreme Court has recognized that a liberty interest in “spousal visitation,” if indefinitely 
suspended, would impose upon the inmate “an atypical and significant hardship . . .  in relation to 

the ordinary incidents of prison life.” Cordova, 96 P.3d at 784–85 (citing Bazzetta v. McGinnis, 
286 F.3d 311, 323 (6th Cir. 2002), rev’d on other grounds, Overton v. Bazzetta, 539 U.S. 126 
(2003)). Thus, if Franklin could demonstrate that a 120-day suspension of his visitation privileges 
impinged upon his liberty interest in a manner that imposed an atypical and significant hardship 
on him as an incarcerated individual, his due process rights may be implicated. 
    But neither Bazzetta nor Cordova are helpful to Franklin in this endeavor. First, Franklin’s 
120-day suspension of his visitation privileges cannot be said to be “much longer” than two years, 
as contemplated in Bazzetta. Nor were Franklin’s privileges “indefinitely” suspended, as was the 
case in Cordova. Simply put, Franklin has not pointed to any authority to support the notion that  
the temporary suspension of visitation privileges for 120 days implicates due process protections. 
    Moreover, even if Franklin could demonstrate a protected liberty interest, this Court is 
satisfied, just as the state district court was, that he received the process to which he was entitled. 
In Wolff v. McDonnell, the Supreme Court observed that “the fact that prisoners retain rights under 

the Due Process Clause in no way implies that these rights are not subject to restrictions imposed 
by the nature of the regime to which they have been lawfully committed.” 418 U.S. 539, 556 
(1974). The Court went on to emphasize that “the full panoply of rights due a defendant” in a 
criminal prosecution do not apply in prison disciplinary proceedings. Id. (citation omitted). 
Instead, “where a prison disciplinary hearing may result in the loss of good time credits,” thereby 
shortening the inmate’s sentence, the inmate is entitled to:              
    (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 Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985) (citing Wolff, 418 U.S. at 563–
67).  Expanding  on  these  requirements,  the  United  States  Supreme  Court  further  held  that 
“revocation of good time does not comport with ‘the minimum requirements of procedural due 
process,’ . . . unless the findings of the prison disciplinary board are supported by some evidence 
in the record.” Id. at 454 (emphasis added) (internal citations omitted). According to the Tenth 
Circuit, though, even “meager” evidence supporting the decision will suffice. Mitchell v. Maynard, 
80 F.3d 1443, 1445 (10th Cir. 2017) (reasoning that the requirements of procedural due process 
are met even if the evidence supporting a disciplinary decision is “meager”). In ascertaining 
whether Hill’s “some evidence” standard is satisfied, the Court need not examine the entire record, 
assess the credibility of the witnesses, or weigh the evidence. Hill, 472 U.S. at 455–56.  
    Putting aside Franklin’s failure to challenge the fact or duration of his sentence and his 
failure to identify a constitutionally-protected interest, the Court examines the process he was 
afforded during his disciplinary proceeding. In so doing, the Court bears in the mind the deference 
it must accord a state court’s determination of a federal constitutional issue. That is, in order to 
secure habeas relief, Franklin would need to show that the relevant state court decision—that he 

failed to identify a protected liberty interest and was provided more process than he was due—was 
either “contrary to, or involved an unreasonable application of, clearly established Federal law” or 
“resulted in a decision that was based on an unreasonable determination of the facts in light of the 
evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); see also Brown v. Ulibarri, 
No. 07-2124, 2008 WL 4739016, at *2 (10th Cir. Oct. 30, 2008) (citing and applying § 2254(d)’s 
deferential standard of review to a state prisoner’s § 2241 challenge); Preble v. Estep, No. 06-
1195, 2006 WL 2212686, at *2 (10th Cir. Aug. 4, 2006) (same). And not only must the Court give 
deference to the state court’s determination of Franklin’s due process claims, it must likewise 
afford deference to the underlying decisions of state correctional authorities, given their expertise 

in prison management and administration. See Bazzetta, 539 U.S. at 132 (“We must accord 
substantial deference to the professional judgment of prison administrators, who bear a significant 
responsibility for defining the legitimate goals of a corrections system and for determining the 
most appropriate means to accomplish them.”).                             
    As Respondents observe, Franklin was afforded numerous procedural safeguards during 
the course of the disciplinary proceedings. ECF 9 at 11–12. He was provided notice of the charge 
against him and received a copy of the inmate misconduct report, which detailed the charge and 
identified the time and date of the incident underlying that charge. Id. at 273–75. Thereafter, 
Franklin was interviewed and denied any culpability. Id. at 276. Franklin acknowledged receipt of 
disciplinary materials and was notified of his right to appear at a disciplinary hearing. Id. at 272. 
At the disciplinary hearing, Franklin was advised of his rights to remain silent, to be assisted by a 
staff member or fellow inmate, and to call witnesses, though he appears to have waived each of 
these rights. Id. at 271. Also at the hearing, Franklin viewed the evidence against him and 
submitted three written motions to dismiss, which the disciplinary officer considered but denied. 

Id. The hearing officer advised Franklin of his right to appeal the disciplinary finding, which he 
later did, and she issued a written disciplinary decision setting forth the basis for her guilty finding. 
Id. at 270. Following his disciplinary conviction, Franklin pursued the administrative appeal 
process about which he was advised. Id. at 292–97. This level of process stands in stark contrast 
to that provided in Cordova. See 96 P.3d at 785–86 (reasoning that the petitioner was provided 
“no process” before his visitation privileges were indefinitely suspended without any articulated 
basis). Given the process that Franklin received, the Court discerns no reason to conclude that the 
state court’s determination of Franklin’s due process claims was either “contrary to, or involved 
an unreasonable application of, clearly established Federal law” or “resulted in a decision that was 

based on an unreasonable determination of the facts in light of the evidence presented in the State 
court proceeding.” See 28 U.S.C. § 2254(d).                               
    Moreover, Respondents maintain, and this Court agrees, that there is evidence in the record 
that supports the hearing officer’s decision to impose disciplinary sanctions against Franklin. Most 
notably, the disciplinary decision is supported by a misconduct report in which K-9 Officer 
Quinonez indicated that Franklin “introduced [b]uprenorphine by receiving it in Legal Mail” and 
further reported that he field-tested the substance and certified that it was buprenorphine. ECF 9-
1 at 298, 303. The disciplinary decision provides that it was “based on a thorough review of all 
evidence and documents submitted,” which included Quinonez’s misconduct report, a Substance 
Test Record/Chain of Custody of “33 strips of orange substance paper,” Confirmation Test 
Information, three photographs, a Memorandum of Inspection of Legal Mail, and an Incoming 
Legal Correspondence Log. See ECF 9-1 at 270, 277–89, 298. Thus, Franklin’s contention that 
“there is not a shred of evidence to support the charge” is belied by the record. After all, even a 
misconduct report alone satisfies Hill’s “some evidence” standard so long as it sets out the basis 

for the disciplinary charge, which it does in this case. See Ruelas v. Zuercher, 240 F. App’x 796, 
797 (10th Cir. 2007) (concluding that the incident report alone was “some evidence” of the 
petitioner’s guilt); Schneider, 2011 WL 1467755, at *5 (reasoning that the “Misconduct Report 
which set[] out the factual basis for the offense and the photograph of the contraband me[]t the 
‘some evidence’ standard”).                                               
    The crux of Franklin’s arguments to the contrary is that there was no evidence to support 
his disciplinary sanction because the substance in question was never in his possession or control 
and was instead only discovered in mail addressed to him. See ECF 20 at 3–5. According to 
Franklin, he was called into a Lieutenant’s office at GCCF to sign for legal mail, and during a 

search  of  his  incoming  mail,  prison  officials  discovered  a  “foreign  substance.”  Id.  at  2. 
Emphasizing that the substance was never in his actual possession, Franklin posits that someone 
who “dislikes” him could simply mail drugs or other prohibited items to his address and “keep his 
privileges restricted.” Id. at 4. Franklin relies upon State v. Gonzales, 525 P.2d 916 (N.M. Ct. App. 
1974), overruled on other grounds by State v. Bender, 579 P.2d 796 (1978) and State v. Reed, 964 
P.2d 113 (N.M. 1998) for the proposition that, absent actual possession, there was insufficient 
evidence to support his underlying disciplinary conviction for dealing in dangerous drugs. ECF 20 
at 4. First, he suggests that “in order [to] traffic a controlled substance[,] you must first possess it.” 
Id. (citing Gonzales, 525 P.2d 916). Second, he maintains that because “[t]here are no collaborating 
factors such as suspicious behavior, positive urine sample or admission,” the record does not 
contain sufficient facts suggesting that he knew his incoming mail contained drugs. Id. (citing 
Reed, 964 P.2d at 115).                                                   
    Franklin’s reliance on Gonzalez and Reed is misplaced, however. In both cases, the New 
Mexico appellate courts addressed criminal convictions for drug-related offenses. See Gonzales, 

525 P.2d at 917–18 (appeal of drug trafficking conviction); Reed, 964 P.2d at 113 (appeal of 
conviction for possession of cocaine). In Reed, the New Mexico Supreme Court found insufficient 
evidence—in the absence of corroborating evidence, such as drug paraphernalia, intoxicated 
behavior, a positive urine sample, flight, or an admission—to support an inference that the 
defendant knew a cigarette wrapper in his possession contained trace amounts of cocaine. Reed, 
964 P.2d at 115. But the standards that apply to appellate review of a criminal conviction do not 
apply to Franklin’s habeas challenge to the disciplinary proceedings against him. And critically, 
actual possession of contraband need not always support a disciplinary conviction related to that 
contraband. See, e.g., Howard v. U.S. Bureau of Prisons, 487 F.3d 808, 812 (2007) (denying a 

§ 2241 petition on the basis that there was “some evidence” to support the disciplinary sanction of 
a loss of good-time credits for possession of drug paraphernalia, where paraphernalia was not in 
the inmate petitioner’s actual possession but was found among his legal papers) (citation omitted); 
see also Dailey v. Oliver, No. 13-CV-03322-KMT, 2014 WL 5347369, at *3–4 (D. Colo. Oct. 21, 
2014) (holding, in a § 2241 proceeding, that there was “some evidence” to support a disciplinary 
conviction for attempted possession of narcotics, where the inmate petitioner signed for books that 
were sent to him via certified mail and in which marijuana was found); Thompson v. Hawk, 978 
F. Supp. 1421 (D. Kan. 1997) (reasoning, under the constructive possession rule, that there was 
evidence to support a disciplinary conviction for possession of a weapon, where the weapon was 
found in a light fixture in the inmate petitioner’s cell, even though the cell door was left open 
during the day and potentially accessible by other inmates). In light of the deference accorded both 
the state court decision and the underlying disciplinary decision, and applying the Hill “no 
evidence” standard to the disciplinary conviction here, Franklin’s arguments regarding the lack of 
actual possession are unavailing.                                         

    Franklin’s Petition could also be construed to assert a claim that his due process rights were 
violated  when  he  was  denied  the  opportunity  to  present  exculpatory  evidence  during  his 
disciplinary proceeding. See ECF 1 at 13.  Specifically, Franklin complains that he was denied the 
opportunity to conduct outside testing of the substance discovered in his incoming mail. See id. 
Although the right of an inmate to present witnesses and/or documentary evidence in a disciplinary 
proceeding  is  central  to  the  procedural  requirements  under  Wolff,  that  right  is  “necessarily 
circumscribed by the penological need to provide swift discipline in individual cases.” Ponte v. 
Real, 471 U.S. 491, 495 (1985). Indeed “[p]rison officials must have the necessary discretion to 
keep the [disciplinary] hearing within reasonable limits.” Wolff, 418 U.S. at 566. In addition, 

harmless error review applies to a habeas petition in which an inmate alleges a violation of his due 
process rights in a disciplinary proceeding. See Grossman v. Bruce, 447 F.3d 801, 805 (10th Cir. 
2006) (reasoning that harmless error review applied to a petitioner’s habeas claim that prison 
officials violated his due process rights by denying his request to present witness testimony at a 
disciplinary proceeding). In applying the harmless error doctrine, a “prisoner cannot maintain a 
due process claim . . . unless he also shows that the [evidence he sought to introduce] ‘would have 
affected the outcome of his case.’” Bird v. Pacheco, 729 F. App’x 627, 631 (10th Cir. 2018) (citing 
Chesson v. Jaquez, 986 F.2d 363, 366 (10th Cir. 1993)).                   
    Here, Franklin has failed to argue, let alone establish, that the Respondents’ interest in swift 
discipline should have given way to his request for outside laboratory testing. Nor has he offered 
any basis from which the Court could conclude that the requested outside testing would have 
revealed the substance in question to be something other than buprenorphine for which Quinonez 
received a positive field test. In fact, Franklin has altogether disavowed knowledge of the contents 

of the subject mail. Given Respondents’ strong interest in keeping disciplinary proceedings within 
“reasonable limits,” see Wolff, 418 U.S. at 566, and because there is no credible reason to believe 
that another round of testing by an outside laboratory would have exonerated Franklin, see 
Schneider, 2011 WL 1467755, at *4, the Court is not persuaded that Respondents’ refusal to permit 
outside testing could somehow rise to the level of a due process violation, even had Franklin 
established a protected liberty interest.                                 
    Finally, Franklin asserts that Respondents failed to provide a meaningful explanation of 
his guilty finding, thereby denying him due process. ECF 1 at 12. While an inmate faced with the 
loss of good-time credits would be entitled, as a matter of due process, to a written statement by 

the  disciplinary  factfinder  of  the  evidence  upon  which  she  relied  and  the  reasons  for  the 
disciplinary action, Franklin was neither faced with such a loss nor deprived of such a statement. 
As explained above, Franklin received a written disciplinary decision detailing the evidence on 
which the hearing officer relied in reaching her decision that Franklin was guilty of dealing in 
dangerous drugs. Most notably, the decision rested, at least in part, on the misconduct report in 
which K-9 Quinonez indicated that Franklin “introduced [b]uprenorphine by receiving it in Legal 
Mail” and that he had field-tested the substance and certified that it was buprenorphine. ECF 9-1 
at 298, 303.                                                              
    At bottom, Franklin’s complaint regarding the adequacy of the written report is that the 
disciplinary hearing officer did not explain why she believed the testimony of the prison official 
over his own testimony. But the Court is not persuaded that this level of granularity was required. 
To be sure, the disciplinary officer was not required to credit Franklin’s version of events. And 
here, on § 2241 review, it is not the Court’s role to reweigh the testimony presented to the 

disciplinary officer. Ultimately, the Court finds that the written disciplinary decision passes muster 
because it detailed the disciplinary finding and the evidentiary basis for that finding. Nothing more 
was required.                                                             
    In sum, Franklin seeks relief that is unavailable in a federal habeas proceeding, and he fails 
to  identify  a  constitutionally-protected  interest  that  would  implicate  his  due  process  rights. 
Moreover, the Court is satisfied that Franklin’s disciplinary hearing complied with any due process 
requirements under Wolff. The Court further concludes that the state court’s decision on Franklin’s 
state habeas petition did not result in a decision that was contrary to, or involved an unreasonable 
application of, clearly established Federal law. Nor was the state court decision based on an 

unreasonable determination of the facts in light of the evidence presented.  For all of these reasons, 
the Court recommends that Franklin’s federal habeas petition be denied.   
    Respondents ask the Court to deny a certificate of appealability. ECF 9 at 1. No appeal 
may be taken from a “final order in a habeas corpus proceeding in which the detention complained 
of arises out of process issued by a State court” unless the petitioner first obtains a certificate of 
appealability.  28  U.S.C.  §  2253(c)(1)(A);  see  also  Montez,  208  F.3d  at  869  (holding 
§ 2253(c)(1)(A) applies when a state habeas petitioner is proceeding under § 2241). A certificate 
of appealability may issue only if Franklin “has made a substantial showing of the denial of a 
constitutional right.” 28 U.S.C. § 2253(c)(2). For all the reasons discussed above, Franklin has 
failed to demonstrate a violation of his due process rights. As such, he is not entitled to a certificate 
of appealability. 
IV.    CONCLUSION 
     For the foregoing reasons, the Court RECOMMENDS that Franklin’s Petition for Writ of 
Habeas  Corpus  be  DENIED  and  this  case  DISMISSED  WITH  PREJUDICE.  The  Court 
FURTHER RECOMMENDS that no certificate of appealability be granted. 
     SO RECOMMENDED.
                                                                    << 
                                  LY  J 
                                   THE HO      BLE GREGORY J. FOURATT 
                                  UNITE      TES MAGISTRATE JUDGE 

THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a 
copy of these Proposed Findings and Recommended Disposition they may file written objections with 
the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1)(c). Any request for an extension 
must be filed in writing no later than seven days from the date of this filing.  A party must file any 
objections with the Clerk of the District Court within the fourteen-day period if that party wants 
to have appellate review of the proposed findings and recommended disposition. If no objections 
are filed, no appellate review will be allowed. 

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