Opinion
Civil Action No. 5:03-CV-325-C.
August 3, 2004
ORDER
On this day the Court considered the Petition for Writ of Habeas Corpus filed by Petitioner Silas Lee Bailey (Petitioner). Respondent filed an Answer, together with relevant prison disciplinary and inmate records, including a tape recording of the disciplinary hearing.
Respondent has lawful and valid custody of Petitioner pursuant to a judgment and sentence out of the 54th Judicial District Court of McLennan County, Texas, for possession of a controlled substance, amphetamine.
Petitioner is not challenging the validity of his holding conviction but instead challenges a prison disciplinary case he received while incarcerated in the Gurney Unit of the Texas Department of Criminal Justice, Correctional Institutions Division. Petitioner was charged in disciplinary action No. 20030310819 with a level 1, code 5.2 offense for extortion of property. Petitioner was found guilty and punishment was assessed at 15 days' solitary confinement, reduction in class, and loss of 30 days of good time credits.
Petitioner was incarcerated in the Smith Unit at the time he filed his petition. The Smith Unit is within the jurisdiction of this Court. See Wadsworth v. Johnson, 235 F.3d 959 (5th Cir. 2000) (a habeas petition challenging a prison disciplinary case should be filed in either the federal judicial district where prisoner was incarcerated or the federal judicial district where his conviction and sentence took place).
This Court has jurisdiction over the subject matter and parties pursuant to 28 U.S.C. §§ 2241 and 2254.
Petitioner was charged with extortion of property on July 7, 2003. A counsel substitute was appointed to represent Petitioner. He was notified of the offense by his counsel substitute on July 11, 2003. He was also notified of the right to call witnesses, the right to present documentary evidence, the right to be represented by counsel substitute, and the right to call and question the charging officer at the hearing.
The disciplinary hearing was held on July 18, 2003, and Petitioner pleaded not guilty. The hearing officer considered the charging officer's testimony and written report, the written statement of the victim, and the Petitioner's commissary records. Petitioner's request for the presence of the inmate victim for the purpose of testifying was denied for safety reasons. The evidence revealed that Petitioner had been extorting commissary personal hygiene items from inmate Victor DeLeon in return for protection. Petitioner's commissary history revealed that Petitioner had not made a purchase at the commissary since his arrival on the unit; yet he had commissary items in his possession. After presentation of the evidence, Petitioner was found guilty based upon the officer's report and testimony, the written statement of the victim, and Petitioner's commissary records.
Petitioner claims that there was no evidence to find him guilty, he was denied the right to question the victim, his defense witnesses were not allowed at the hearing and their statements were not recorded, and the victim never said Petitioner extorted anything from him. He further alleges that the victim's written statement was written by another inmate.
Petitioner's placement in solitary confinement for 15 days does not represent the type of atypical, significant deprivation in which a state might create a liberty interest. "The punishment of incarcerated prisoners . . . effectuates prison management and prisoner rehabilitative goals." Sandin v. Conner, 515 U.S. 472, 485 (1995). Further, "discipline by prison officials in response to a wide range of misconduct falls within the expected parameters of the sentence imposed by a court of law." Id.
The Due Process Clause protections are not implicated by the disciplinary hearing officer's reducing Petitioner in class. The Fifth Circuit has held that "the mere opportunity to earn good-time credits" does not constitute "a constitutionally cognizable liberty interest sufficient to trigger the protections of the Due Process Clause." Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995). Petitioner's custodial classification will not "inevitably affect the duration of his sentence." Id.
Petitioner lost a total of 30 days of good time credit. There is no inherent right to good time credit. Wolff v. McDonnell, 418 U.S. 539, 557 (1974). Whether designated "good time" or "work time" credits, these credits do not become vested. Ex parte Morris, 626 S.W.2d 754, 757 (Tex.Crim.App. 1982). However, when a state creates a right to good time credits and the revocation of good time credits is an authorized sanction for misconduct, the prisoner's interest in those credits is "embraced within the Fourteenth Amendment `liberty' concerns so as to entitle him to those minimum procedures appropriate under the circumstances and required by the due process clause to insure that this state created right is not arbitrarily abrogated." Madison, 104 F.3d 765, 768 (5th Cir. 1997); Wolff, supra.
Texas law provides that good time credits only affect eligibility for release on parole or mandatory supervision. Tex. Gov't Code Ann. § 498.003 (Vernon Supp. 1998). In Ex parte Montgomery, 894 S.W.2d 324 (Tex.Crim.App. 1995), the Texas Court of Criminal Appeals interpreted Texas law as holding that good time credits apply only to eligibility for parole and release on mandatory supervision but do not affect the length of an inmate's sentence. Prisoners in Texas possess no constitutionally protected right to release on parole. See, Greenholtz v. Inmates of Neb. Penal Corr. Complex, 442 U.S. 1, 7 (1979); Madison, supra; Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995); Gilbertson v. Tex. Bd. of Pardons Paroles, 993 F.2d 74, 75 (5th Cir. 1993). There is, however, "a constitutional expectancy of early release created by Texas's mandatory supervision scheme in place prior to September 1, 1996 for earned good time credits." Malchi, 211 at 957-58.
"As a general rule, only sanctions which result in loss of good conduct time for inmates who are eligible for release on mandatory supervision or which otherwise directly or adversely affect release on mandatory supervision will impose upon a liberty interest." Spicer v. Collins, 9 F. Supp.2d 673, 685 (E.D. Tex. 1998) (citing Orellana v. Kyle, 65 F.3d 29, 31-33 (5th Cir. 1995)).
Because Petitioner is eligible for release on mandatory supervision and he lost a total of 30 days of good time credits as a result of being found guilty of the disciplinary charge, the Court must determine whether the due process requirements of Wolff v. McDonnell, 418 U.S. 538, have been satisfied. In Wolff, the Supreme Court was reluctant to review the judgment of prison administrators and acknowledged that prison disciplinary proceedings do not require the "full panoply of rights" due a defendant in a criminal proceeding. The Supreme Court then set forth the minimum requirements of procedural due process which are to be accorded prisoners in the disciplinary hearing process. Due process considerations require the following:
1. advance written notice of the claimed violation;
2. a written statement of the fact finder as to the evidence relied on and the reason(s) for the disciplinary action taken; and
3. an opportunity to call witnesses and present documentary evidence in defense, when to do so would not be unduly hazardous to institutional safety or correctional goals.Wolff, 418 U.S. at 564-66.
The disciplinary hearing records in Petitioner's disciplinary proceeding establish that Petitioner was given advance written notice of the charges against him, he was appointed a counsel substitute to represent him, and he was advised of his right to call witnesses and to present documentary evidence. He appeared at the disciplinary hearing on July 18, 2003. The records contain written statements of the fact finder setting forth the evidence relied upon in reaching the decision and the reasons for the disciplinary action taken. The hearing officer relied upon the officer's report and testimony, Petitioner's commissary records, and the victim's written statement. Petitioner's request for the presence of the victim was denied for safety reasons. Petitioner did not call any witnesses or present any documentary evidence.
The disciplinary officer's decision will satisfy the due process requirements if there is "some evidence" in the record to support the decision. Superintendent v. Hill, 472 U.S. 445, 455 (1985). It is settled law that federal courts do not review the sufficiency of the evidence at a disciplinary hearing. Sufficient support for a finding of guilt is provided by "some facts" or "any evidence at all." Gibbs v. King, 779 F.2d 1040, 1044 (5th Cir. 1986); Hudson v. Johnson, 242 F.3d 534, 537 (5th Cir. 2001) (officer's report standing alone provides some evidence of guilt).
[F]ederal courts cannot retry every prison disciplinary dispute; rather, the court may act only where arbitrary or capricious action is shown. This means that prison disciplinary proceedings will be overturned only where there is no evidence whatsoever to support the decision of the prison officials. A de novo factual review is not required.Reeves v. Pettcox, 19 F.3d 1060, 1062 (5th Cir. 1994) (citing Smith v. Rabalais, 659 F.2d 539, 545 (5th Cir. 1981)); accord Banuelos v. McFarland, 41 F.3d 232, 234 (5th Cir. 1995); Stewart v. Thigpen, 730 F.2d 1002, 1005-06 (5th Cir. 1984).
Prison authorities are accorded wide discretion in deciding whether certain witnesses will be called. Wolff, 418 U.S. at 566-69. "Prison officials need discretion to limit access to other inmates to collect statements or to compile other documentary evidence, and are not required to state specific reasons for refusing to provide that certain witnesses be called." Smith v. Rabalais, 659 F.2d 539, 543-44 (5th Cir. 1981) (internal quotations and citations omitted).
The Court finds that the rights set forth in Wolff have not been abridged and that there was "some evidence" to support the disciplinary hearing officer's decision.
"[I]f some of the procedural safeguards are overlooked, the petitioner must demonstrate resulting prejudice to establish a constitutional violation cognizable on federal habeas corpus review." Turner v. Johnson, 46 F. Supp. 2d 655, 661 (S.D. Tex. 1999). See Black v. Warren, 134 F.3d 732, 734 (5th Cir. 1998) ("Assuming TDCJ-ID procedural rules regarding notice and the right to call witnesses and present documentary evidence were violated, [petitioner] has not shown that such errors rise to the level of a constitutional due process claim."); Hallmark v. Johnson, 118 F.3d 1073, 1080 (5th Cir. 1997) (denying petitioner's due process claim that prison failed to provide written notice of the charges at least 24 hours prior to a hearing where the petitioner failed to explain how the failure was prejudicial to his defense).
To the extent Petitioner argues that he was denied due process because TDCJ-CID officials failed to follow its own rules and regulations, his claims are without merit. Such failure to follow institutional rules and regulations, standing alone, does not constitute a violation of Petitioner's due process rights. See Murphy v. Collins, 26 F.3d 541, 543 (5th Cir. 1994). "A prison official's failure to follow the prison's own policies, procedures or regulations does not constitute a violation of due process, if constitutional minima are nevertheless met." Myers v. Klavenhagen, 97 F.3d 91, 94 (5th Cir. 1996). "Mere failure to accord the procedural protections called for by state law or regulation does not of itself amount to a denial of due process." Giovanni v. Lynn, 48 F.3d 908, 912 (5th Cir. 1995).
Based upon the foregoing, the Court finds that Petitioner's Petition for a Writ of Habeas Corpus is DENIED and this case is dismissed with prejudice.
All relief not expressly granted is denied and any pending motions are denied.
SO ORDERED.