Opinion
No. 111977.
2015-03-13
Steve CALHOUN, Appellant, v. SECRETARY OF CORRECTIONS, et al., Appellees.
Appeal from Ellsworth District Court; Ron L. Svaty, Judge.Donald E. Anderson II, of Robert A. Anderson Law Office, of Ellinwood, for appellant.Robert E. Wasinger, of Kansas Department of Corrections, of Ellsworth, for appellee.
Appeal from Ellsworth District Court; Ron L. Svaty, Judge.
Donald E. Anderson II, of Robert A. Anderson Law Office, of Ellinwood, for appellant. Robert E. Wasinger, of Kansas Department of Corrections, of Ellsworth, for appellee.
Before PIERRON, P.J., GREEN, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM:
Steve Calhoun appeals the Ellsworth County District Court's denial of his request for habeas corpus relief under K.S.A. 60–1501. Calhoun contends that his due process rights were violated when the Department of Corrections (DOC) imposed a disciplinary sanction on him for violating K.A.R. 44–12–901 when there was no evidence to establish Calhoun's possession of the contraband.
Factual and Procedural Background
During a routine shakedown of Calhoun's cell block on January 7, 2012, a corrections officer discovered a razor blade wrapped in cardboard and affixed with tape to the bottom of the entry door to the cell shared by Calhoun and another inmate. The corrections officer issued a disciplinary report against Calhoun for a violation of K.A.R. 44–12–901–possession of dangerous contraband, a class I disciplinary violation.
Calhoun requested a hearing, which was held on January 17, 2012. The hearing officer found Calhoun guilty of committing the offense and imposed a sanction of a suspended 14–day segregation, 21 days of restrictions, and a $10 fine. The hearing officer based his decision on the fact that the razor blade was found within an area of Calhoun's control and that Calhoun offered to admit possession if the offense were amended to charge a class II disciplinary violation.
Calhoun exhausted his administrative remedies and then filed a petition for writ of habeas corpus under K.S.A. 60–1501. Based upon some procedural confusion, the district court mistakenly dismissed Calhoun's action. When the case was returned to the district court, the DOC filed a motion to dismiss the petition, arguing that some evidence supported the hearing officer's imposition of a disciplinary sanction.
On November 27, 2013, the district court held a hearing on Calhoun's petition, and the parties presented argument. The court ultimately denied Calhoun's request for relief, noting the extremely deferential standard of judicial review. Calhoun appealed the district court's decision on December 5, 2013. The district court filed its written journal entry denying Calhoun's request for relief on January 27, 2014.
Analysis
Was the hearing officer's decision supported by some evidence in the record on appeal?
A person who is detained, confined, or restrained of liberty within the state may petition the court for a writ of habeas corpus. K.S.A. 60–1501(a). A habeas corpus petition under K.S.A. 60–1501 must allege shocking or intolerable conduct or mistreatment of a constitutional stature. If the face of the petition or the incontrovertible facts of the case fail to allege such treatment, the petition may be dismissed. Bankes v. Simmons, 265 Kan. 341, 349, 963 P.2d 412, cert. denied 525 U.S. 1060 (1998); Corter v.. Cline, 42 Kan.App.2d 721, 722, 217 P.3d 991 (2009). When a district court denies the requested habeas corpus relief without holding an evidentiary hearing, appellate review of the denial is plenary. See Johnson v. State, 289 Kan. 642, 649, 215 P.3d 575 (2009).
In this appeal, Calhoun asserts a violation of his right to procedural due process. Whether procedural due process has been violated in a given situation is also a question of law, subject to unlimited appellate review. In re Habeas Corpus Application of Pierpoint, 271 Kan. 620, Syl. ¶ 4, 24 P.3d 128 (2001); Swafford v. McKune, 46 Kan.App.2d 325, 328, 263 P.3d 791 (2011), rev. denied 294 Kan. 948 (2012). In order to establish a claim for a violation of due process in a habeas corpus proceeding, an inmate must establish a deprivation of a recognized liberty or property interest. Hogue v. Bruce, 279 Kan. 848, 850–51, 113 P.3d 234 (2005); Murphy v. Nelson, 260 Kan. 589, 598, 921 P.2d 1225 (1996). Calhoun was fined $10 as the result of his disciplinary proceeding, which this court has recognized as a deprivation of an established property interest sufficient to implicate procedural due process. Anderson v. McKune, 23 Kan.App.2d 803, 807, 937 P.2d 16 (citing Longmire v. Guste, 921 F.2d 620, 623–24 [5th Cir.1991] ), rev. denied 262 Kan. 959, cert. denied 522 U.S. 958 (1997).
Procedural due process in the prison context is limited to written notice of the charges, an impartial hearing, the opportunity to call witnesses and present documentary evidence, and a written statement from the hearing officer as to the findings and reasons for the decision. Pierpoint, 271 Kan. at 627–28; Swafford, 46 Kan.App.2d at 329. When an inmate challenges the basis for the hearing officer's decision, due process demands only a modicum of evidence to support the disciplinary sanction in order “to prevent arbitrary deprivations without threatening institutional interests or imposing undue administrative burdens.” Superintendent v. Hill, 477 U.S. 445, 454–55, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985). In the context of prison disciplinary proceedings, therefore, due process demands only that a hearing officer's decision be supported by some evidence in the record. Hill, 472 U.S. at 455; Sammons v. Simmons, 267 Kan. 155, 158–59, 976 P.2d 505 (1999).
“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. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board. [Citations omitted.] We decline to adopt a more stringent evidentiary standard as a constitutional requirement. Prison disciplinary proceedings take place in a highly charged atmosphere, and prison administrators must often act swiftly on the basis of evidence that might be insufficient in less exigent circumstances. [Citation omitted.] The fundamental fairness guaranteed by the Due Process Clause does not require courts to set aside decisions of prison administrators that have some basis in fact. Revocation of good time credits is not comparable to a criminal conviction, [citation omitted], and neither the amount of evidence necessary to support such a conviction, [citation omitted], nor any other standard greater than some evidence applies in this context.” Hill, 472 U.S. at 455–56.
Calhoun was charged and found guilty of violating K.A.R. 44–12–901, which reads:
“(a) Dangerous contraband shall be defined as any of the following:
(1) Any item, or any ingredient or part of or instructions on the creation of an item, that is inherently capable of causing damage or injury to persons or property, or is capable or likely to produce or precipitate dangerous situations or conflict, and that is not issued by the department of corrections or the facilities, sold through the canteen, or specifically authorized or permitted by order of the secretary of corrections or warden for use or possession in designated areas of the facility;
(2) any item that can be the basis for a charge of felony for its possession under the laws of Kansas or the United States; or
(3) any item that, although authorized, is misused if the item in its misused form has the characteristics of being able to cause damage or injury to persons or property or being likely to precipitate dangerous situations or conflicts.
“(b) All contraband shall be confiscated and shall be ordered forfeited by the inmate.
“(c) No inmate shall possess, hold, sell, transfer, receive, control, or distribute any dangerous contraband.
“Violation of this regulation shall be a class 1 offense.”
Calhoun does not dispute that a razor blade would properly fall into the definition of “dangerous contraband” provided in K.A.R. 44–12–901(a)(1). His only challenge to the disciplinary sanction imposed on him was the finding that he possessed, held, or controlled the razor blade found under the door of his cell. The hearing officer relied on the fact that the contraband was discovered attached to the underside of his cell door which would make it within Calhoun's constructive possession. The hearing officer also noted that Calhoun was willing to accept responsibility for the contraband if the hearing officer would amend the disciplinary classification to a class II.
While the place in which the razor was found was not exclusively within Calhoun's control, he does not challenge that fact that the door under which it was located was within his sphere of control. The DOC is not required to present evidence that excludes every reasonable conclusion other than the conclusion drawn by the hearing officer. The mere fact that others may also have had access to this area does not render the hearing officer's decision to impose a sanction on Calhoun devoid of evidentiary support. See Foster v. McKune, No. 105,831, 2012 WL 603296, at *3 (Kan.App.2012) (unpublished opinion); Blanchette v. Werholtz, No. 101,969, 2009 WL 2506280, at *3 (Kan.App.2009) (unpublished opinion).
“[T]he district court was incorrect to require sufficient evidence to support Blanchette's disciplinary conviction. We are mindful of the lower evidentiary burden necessary for allowing appropriate deference to prison discipline, and we cannot force a prison to prove a crime under criminal law standards or set a review standard where the evidence ‘logically precludes any conclusion but the one reached by the disciplinary board.’ [Citation omitted.] Thus, the district court erred in requiring sufficient evidence rather than some evidence to support Blanchette's disciplinary conviction.” Blanchette, 2009 WL 2506280, at *3.
While the evidence supporting Calhoun's disciplinary sanction is meager, there is some evidence to support the hearing officer's determination. The imposition of sanctions for the disciplinary violation of K.A.R. 44–12–901 is affirmed.
Calhoun raised the concern that ECF General Order 9–114 provides that all inmates assigned to a cell or cube shall be held responsible for any contraband found in the cell or cube but no other inmate in Calhoun's cell or unit was found guilty of violating K.A.R. 44–12–901. This argument potentially raises a claim for an equal protection violation. See Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (discussing equal protection claims brought by a “ ‘class of one’ ”). However, Calhoun did not develop the issue with argument and proper legal citation. Accordingly, the issue is deemed abandoned. See State v. Williams, 298 Kan. 1075, 1083, 319 P.3d 528 (2014) (failure to adequately brief an issue is deemed abandonment and waiver of the issue); State v. Conley, 287 Kan. 696, 703, 197 P.3d 837 (2008) (deeming lack of cited authority to support an issue akin to failure to brief).
Affirmed.