Opinion
Civil Action No. 1:04-CV-001-C.
August 5, 2004
ORDER
On this day the Court considered the Petition for a Writ of Habeas Corpus by a Person in State Custody filed by Petitioner Thomas Coleman Sosa. Respondent filed an Answer with Brief in Support, together with certain prison disciplinary and inmate records pertaining to Petitioner, including a tape recording of the disciplinary proceeding. Petitioner filed an "Opposition Motion for Summary Judgment," which is construed as Petitioner's response to Respondent's answer.
Petitioner originally filed this § 2254 petition in the United States District Court for the Southern District of Texas, Houston Division, but the petition was transferred to this Court because Petitioner was incarcerated in the Robertson Unit when he filed his petition. See Wadsworth v. Johnson, 235 F.3d 959, 961-62 (5th Cir. 2000) (holding that a prisoner may file a § 2254 petition challenging a prison disciplinary proceeding in the district where he is incarcerated at the time of filing or in the district where he was originally convicted and sentenced).
Respondent has lawful and valid custody of Petitioner pursuant to a judgment and sentence out of the 184th Judicial District Court of Harris County, Texas. Petitioner pleaded guilty to the felony offense of possession of cocaine and was sentenced on July 29, 1993, to 20 years' incarceration.
Petitioner is not challenging the validity of his holding conviction but instead challenges a prison disciplinary case he received while incarcerated. Petitioner was found guilty on May 12, 2003, in Disciplinary Case No. 20030243201 of a level 1 code 4 violation for threatening to inflict harm, physical or otherwise, on an officer. Punishment was assessed at 30 days each of recreation and commissary restrictions, remain Line 3 class, and a loss of 365 days' good-time credit.
Petitioner is eligible for mandatory supervision; therefore, he is entitled to the due process protections set forth in Wolff v. McDonnell, 418 U.S. 539, 557 (1974).
The Court has reviewed the records of the disciplinary hearing, including the tape recording of the disciplinary hearing, and considered Petitioner's petition, Respondent's answer, and Petitioner's response.
Petitioner alleges that
(1) he was denied a meaningful administrative appeal because the grievance investigator failed to complete an investigation and formulate a response to this step one grievance within the proper time period allotted by TDCJ rules and regulations;
(2) the disciplinary case was filed against him in retaliation;
(3) he was denied due process when the disciplinary hearing officer conspired with his counsel substitute to deny him the right to present documentary evidence in the form of a security videotape and an audiotape from a previous disciplinary hearing (disciplinary proceeding number 20030239297); and
(4) he was denied the right to present a meaningful defense or present his point of view when the disciplinary hearing officer conducted the hearing "in absentia" to prevent him from introducing exculpatory material and other evidence in his defense.
The Court takes judicial notice of Civil Action No. 1:03-CV-198 wherein Petitioner challenged disciplinary proceeding number 20030239297 in this Court. His § 2254 habeas petition was denied on February 13, 2004.
Petitioner's argument that he was denied the right to a meaningful appeal because prison officials did not timely respond to his Step 1 grievance is without merit. "A prison official's failure to follow the prison's own policies and procedures or regulations does not constitute a violation of due process, if constitutional minima are nevertheless met." Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996). "Mere failure to accord the procedural protections called for by state law or regulation does not itself amount to a denial of due process." Giovanni v. Lynn, 48 F.3d 908, 912 (5th Cir. 1995).
Petitioner has failed to provide any evidence to support his claims that the disciplinary charge was filed against him in retaliation. See Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999); Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995); Al Ra'id v. Ingle, 69 F.3d 28, 36 (5th Cir. 1995). The Court takes judicial notice of six other § 2254 habeas petitions filed by Petitioner in this Court wherein Petitioner challenged prison disciplinary cases. In each of those petitions Petitioner claims that the disciplinary case being challenged had been filed against him in retaliation. All six habeas petitions have been denied.
Civil Action Nos. 1:03-CV-198-C, 1:03-CV-206-C, 1:03-CV-241-C, 1:03-CV-244-C, 1:04-CV-250-C, and 1:04-CV-019-C.
Petitioner's claims regarding loss of privileges and custodial classification do not present grounds for federal habeas corpus review. Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997); Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000); Berry v. Brady, 192 F.3d 504, 508 (5th Cir. 1999); Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995).
Petitioner was notified of the disciplinary charges against him, received 24 hours' advance written notice of the hearing, was informed of his right to call witnesses and present documentary evidence, and was provided with a final report of the disciplinary hearing stating the evidence relied upon and the reason for the disciplinary action.
Petitioner, representing himself at the hearing with his counsel substitute in attendance, requested that the hearing officer produce a security videotape and audiotape from a previous disciplinary hearing held on May 7, 2003. The disciplinary case being challenged in this action apparently arose out of Petitioner's removal from the May 7, 2003 disciplinary hearing.
Petitioner was excluded from the disciplinary hearing on May 7, 2003, because of his uncooperative and disruptive behavior. See Order dated February 13, 2004, in Civil Action No. 1:03-CV-198-C denying Petitioner's § 2254 petition challenging disciplinary case number 20030239297.
The right to gather and present documentary evidence is a limited right and the presentation of such evidence is within the discretion of prison officials. Baxter v. Palmigiano, 425 U.S. 308, 322 (1976). Further, Petitioner has failed to demonstrate that the exclusion of such evidence "`had substantial and injurious effect or influence in determining' the proceeding's outcome." Williams v. Johnson, 171 F.3d 300, 307 (5th Cir. 1999).
Although Petitioner was present when the disciplinary hearing commenced, he was later removed by the hearing officer "due to contradiction/belligerent behavior — argumentative." A prisoner does not have an absolute right to attend a disciplinary hearing. Moody v. Miller, 864 F.2d 1178, 1180-81 (5th Cir. 1989).
In finding Petitioner guilty of the disciplinary offense charged against him, the hearing officer considered the charging officer's testimony and based his finding of guilt on the charging officer's report and "no non-frivolous statement."
The Court finds that the rights set forth in Wolff v. McDonnell have not been abridged and that there was "some evidence" to support the disciplinary hearing officer's decision. Hudson v. Johnson, 242 F.3d 534, 537 (5th Cir. 2001) (officer's report standing alone provides some evidence of guilt).
For the reasons set forth above and the facts and the law set forth in Respondent's Answer and this Court's review of the disciplinary hearing records, the Court finds that Petitioner's Petition for a Writ of Habeas Corpus challenging his prison disciplinary case should be denied and this cause dismissed with prejudice.
All relief not expressly granted is denied and any pending motions are denied.
SO ORDERED.