Opinion
CV14406573
08-22-2016
Shaka Shabazz v. Warden, State Prison
UNPUBLISHED OPINION
SUBSEQUENT HISTORY: Related proceeding at Shabazz v. Dzurenda, (D. Conn., Oct. 13, 2016)
MEMORANDUM OF DECISION
Samuel J. Sferrazza, S.J.
The pro se petitioner, Shaka Shabazz, seeks habeas corpus relief in the form of overturning the decision of a disciplinary hearing officer that upheld the issuance of a disciplinary report (DR) and assessed, among other penalties, a forfeiture of five days of accrued risk reduction credit. The petitioner contends that the procedures employed against him denied him the due process to be accorded to inmates who contest the levy of such punishment. After an evidentiary hearing, the court makes the following findings of fact and rulings of law.
On March 15, 2014, the petitioner was serving a sentence at the MacDougal/Walker Correctional Institution. He received a DR, or " ticket, " for disobeying the direct order of C.O. Tyburski. In the DR, C.O. Tyburski recounts that, as the petitioner walked toward the medical area for a scheduled test, she perceived that he might fail to proceed through the metal detector positioned en route. She reminded him that he needed to pass through the detector. The petitioner responded in a loud and angry voice that he intended to do just that. However, C.O. Tyburski observed that the petitioner merely stepped within the device and then stepped back without actually passing completely through. She ordered him to go through the detector, but, again, he failed to complete that passage. To avoid a confrontation, C.O. Tyburski allowed the petitioner to continue on to the medical area.
She reported the incident to her supervisor, who concurred that the petitioner had violated her direct order by failing, expeditiously, to pass through the detector completely. A copy of the DR was personally given to the petitioner a few hours later.
Administrative Directive 9.5, entitled " Code of Penal Discipline, " sets forth the protocol for handling DRs. Pursuant to that Code, an Investigator was assigned to look into the allegations. Investigator Rule interviewed the petitioner and C.O. Tyburski and agreed that the petitioner committed the infraction of prison rules. Following the procedure described in the Code, the Investigator apprised the petitioner of the administrative path to be taken, and the petitioner wished to contest the ticket and requested that an advocate assist him as the Code provides.
C.O. Lisa Grant was designated as the petitioner's advocate. She timely met with him on March 26, 2014, which was the day before the formal hearing scheduled for March 27, 2014. The petitioner discussed with her his assertion that he never disobeyed C.O. Tyburski's order and cleared the metal detector properly as directed. The petitioner knew the incident was video-recorded, and he asked Grant to review the recording that he believed would corroborate his innocence.
C.O. Grant interviewed Tyburski and viewed the video. She opined that the lack of audio rendered the recording irrelevant, despite the petitioner's claim that he passed completely through the detector. As a result, she never procured the recording or a copy for presentation at the hearing nor did she request that the Investigator do so.
C.O. Grant prepared forms CN9508/1 and CN9508/2, which comprised a document entitled " Advocate Investigation Report." In that report, C.O. Grant summarized the petitioner's defense and noted that she reviewed the evidence in the case. Form CN9508/2 ends with a section for " Advocate's Conclusion." C.O. Grant's entry for that section included the following opinion and recommendation.
" This advocate reviewed [the petitioner's] discipline history with him and discussed his history of noncompliance and offenses. It should be noted that Inmate Shabazz has a total of 192 tickets. His last seven tickets were Class A offenses. It is my recommendation that Inmate Shabazz be held accountable for his actions and receive consequences accordingly to the Class B offense, Disobeying a Direct Order ." (Emphasis added.)
That is, the petitioner's advocate expressed her conclusion that the petitioner was guilty as charged, had repeatedly violated prison rules, and ought to be punished " accordingly."
The petitioner received C.O. Grant's report shortly before his formal hearing on March 27, 2014. Because Grant was unavailable for the hearing, a substitute advocate, C.O. Thompson, acted in her stead as permitted under the Code. At the hearing, Lt. Bruce Richardson presided. He received from the Investigator a packet of material that included the DR and C.O. Grant's Advocate Report, including form CN9508/2 quoted above. C.O. Thompson presented no evidence on behalf of the petitioner nor did anyone else produce any evidence in addition to the paperwork described above.
Lt. Richardson found the petitioner guilty of disobeying a direct order based solely on C.O. Tyburski's first-hand account as contained in the body of the DR. As mentioned earlier, Lt. Richardson imposed sanctions upon the petitioner that included the loss of five days accumulated risk reduction earned credit. That finding also prevented the petitioner from accruing an additional five days credit for the month in which the transgression occurred.
A habeas court's evaluation of an inmate's claim of an illegal loss of earned time credit is very limited in scope. The habeas judge cannot substitute its view of the evidence for that of the prison officials. Consequently, the court makes no determination as to whether the prisoner actually committed the breach of prison rules. Instead, the only issue for the court to resolve is whether the disciplinary procedures used, resulting in the loss of time credit, comported with the minimum requirements of due process.
The federal and state constitutions guarantee that inmates cannot be deprived of liberty without the due process of law, Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Vandever v. Commissioner, 315 Conn. 231, 241, 106 A.3d 266 (2014). However, the very fact of lawful incarceration necessarily limns the contours of any liberty interest retained by a sentenced prisoner, Wolff v. McDonnell, supra . The United States Supreme Court delineated that due process only demands, with respect to loss of time credit, " (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 . . . defense; and (3) a written statement by the fact finder of the evidence relied on and the reasons for the disciplinary action, " Superintendent v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985).
In the present case, the court finds no credible evidence that the notice to the petitioner of the specific allegations against him or the decision of Lt. Richardson after the formal hearing were deficient in any constitutional sense. The court does determine, however, that the petitioner was unconstitutionally deprived of his right to due process because he was denied a meaningful opportunity to present his defense at the formal hearing.
The petitioner contended that he obeyed C.O. Tyburski's order by traversing the metal detection field completely. It is undisputed that the actions of the petitioner were captured by video-recording and that he wished to have the hearing officer review that recording. He informed his advocate of this desire the day before the hearing, and she reviewed the video-recording as he requested. She declined to retain the recording, or a copy of it, for use at the formal hearing or by the petitioner because only visual information is recorded. Nor did she request that the Investigator secure the recording for the hearing on the petitioner's behalf.
The evidence presented at the habeas hearing confirmed the obvious reality of prison life that inmates cannot access such recordings on their own, and can only exercise their right to submit that evidence to the hearing officer through the auspices of prison personnel. Although constitutional considerations may not require it, the Code provides for the appointment of an advocate if the inmate requests one. Section 25 of the Code reads, in pertinent part:
Advocate . An advocate shall meet with the inmate at least 24 hours prior to the hearing, review all submitted documentation and evidence in accordance with the provisions of § § 31(E) and 31(G) of this Directive, assist the inmate in preparing a defense, and document his/her conclusions and recommendations using form CN 9508, Advocate Report. If the appointed advocate cannot appear at the hearing, another advocate may be appointed to assist the inmate, or for good cause, the hearing may be continued.
Also, with respect to the role of the Investigator, § 24 states:
The Investigator shall determine if the accused inmate desires a witness(es) and shall list the name and number of each appropriate inmate witness and the name and position of any staff witness.
The Investigator shall conduct an investigation into the circumstances of each disciplinary report that goes to hearing and gather all information deemed relevant to the disciplinary report. The Investigator shall report the results of the investigation on CN 9505, Disciplinary Investigation Report.
The Investigator shall prepare a hearing docket and ensure that a disciplinary report is brought to hearing in accordance with the time frames established in § 31(A) of this Directive and shall ensure that the inmate, any witnesses, the advocate and evidence along with appropriate forms are available at the scheduled hearing.
Section 31 outlines the conduct of the formal hearing and contains, inter alia, the following provisions:
E. Evidence . Evidence may be physical evidence, a written statement or a document, or oral testimony. A copy or listing of any physical evidence shall be given or made available to the inmate or the inmate's advocate by the Investigator at least 24 hours prior to the hearing. Physical evidence shall be presented at the hearing, as determined by the Investigator, whenever practicable. Otherwise, a sample, photograph, laboratory test, or a written description of the evidence shall be presented.
H. Rebuttal . The accused inmate or the advocate may be allowed to rebut evidence and information presented at the disciplinary hearing subject to constraints imposed by the Hearing Officer. The Hearing Officer shall constrain the rebuttal if it is irrelevant, redundant, or disrupts an orderly hearing.
I. Defense . The inmate shall be given an opportunity to present the inmate's version of the offense, orally and/or in writing. The inmate shall be given an opportunity to present witness testimony subject to the provisions of § 27 of this Directive. Witnesses may be questioned by the Hearing Officer. Defense information shall be recorded on CN 9504, Disciplinary Process Summary Report.
As interpreted by prison officials and advocates, in particular, at the time of the petitioner's formal hearing, the advocate's duties under § 25 served two masters. The advocate was bound to " assist the inmate in preparing a defense, " but, also, to " document his/her conclusions and recommendations, " even if those opinions and conclusions utterly contradicted the inmate's defense, and the recommendations were, as in this case, to impose a punishment which befit an inmate with a history of misconduct and who refused to recognize the wrongfulness of his conduct. With advocacy like this, who needs adversaries?
To be clear, the court's analysis in deciding that the petitioner's due process rights were infringed is not founded on whether an advocate needed to be appointed to assist the petitioner, nor is it concerned with whether that advocate rendered effective assistance. But where an inmate is, by necessity, prohibited from physically assembling evidence to support his defense except through the offices of an advocate; and where, in utilizing an advocate, an inmate must suffer the consequences if that advocate's personal opinions and conclusions undermine that defense, the opportunity to rebut the allegations is illusory.
The prejudice aspect of the due process deprivation is confounded by the fact that neither side offered into evidence the video-recording in question at the habeas hearing. Grant acknowledged viewing the recording but never testified as to what she saw. However, the court presumes prejudice in this case because the Hobson's Choice described above amounts to the procedural equivalent of a total denial of a meaningful opportunity to present a defense as required by due process under Wolff v. McDonnell, supra .
This is a structural error because it infects the entire disciplinary process rather than merely constituting an error which arose during this formal hearing in particular, State v. Stuart, 113 Conn.App. 541, 550-51, 967 A.2d 532 (2009). A procedural obstacle that so diminishes the possibility of presenting any defense seems equivalent to forbidding an inmate's participation at all, see State v. Lopez, 271 Conn. 724, 731, 859 A.2d 898 (2004); a criminal defendant's absence from a critical stage is structural error. Therefore, prejudice is presumed.
The court grants habeas corpus relief by vacating the decision of the hearing officer and ordering that any new hearing, if one is conducted, comply with the principles adjudicated in this decision.s