Opinion
Civil Action No. 3:01-CV-1953-R
April 9, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636 (b), and an order of the district court in implementation thereof the subject cause has been previously referred to the United States Magistrate Judge. The findings, conclusions, and recommendations of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner Tyrone Denard Anderson (Anderson) is an inmate confined at the Darrington Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) at Rosharon. Respondent is the Director of TDCJ-ID.
Statement of the Case: Anderson is currently incarcerated pursuant to a judgment and sentence of the 354th Judicial District Court of Hunt County, Texas, in Cause No. 18,679, in which he was charged with the offense of attempting to take a peace officer's weapon. See Resp.'s Answer at Ex. A (Judgment). After pleading no contest and true to enhancement paragraphs, the court assessed his punishment at ten years imprisonment and a $1,436.50 fine.
In the instant petition, Anderson does not challenge his conviction. Instead, he challenges disciplinary proceeding number 20010192965 ( see Resp.'s Answer at Ex. B (Disciplinary Report and Hearing Record), in which he received the following: (1) forty-five days of recreation restriction, (2) forty-five days commissary restriction, (3) a two grade reduction in good-time-earning class from Trustee IV (S4) to Line class II (L2), (4) a forfeiture of 365 days of good time credit, and (5) an increase in custody level from minimum to medium custody. Id. He appealed the disciplinary sanctions through the TDCJ grievance procedure. See Resp.'s Answer at Ex. C.
The hearing worksheet generated for Anderson's case reflects a good-time loss of "360." Resp.'s Answer at Ex. B.
Specifically, Petitioner contends that his due process rights were violated because (1) Officer J. Ladou erroneously charged Petitioner with a "MAJOR" disciplinary infraction of tampering with a locking mechanism, to wit: placing a towel over the locking mechanism, in violation of Level 2, Code 18.2, (2) Petitioner was not immediately notified of the infraction, (3) Officer Ladou failed to uniformly enforce agency policy, (4) No evidence was adduced at Petitioner's disciplinary hearing to substantiate his guilt, (5) Counsel substitute Dorman rendered ineffective assistance by failing to assist in obtaining the names of Anderson's witnesses, (6) Counsel substitute Dorman and Captain David, the hearing officer, failed to postpone Anderson's disciplinary hearing until such time as his witnesses could either be questioned by Counsel substitute Dorman or called to the hearing.
In response to the instant petition filed on September 28, 2001 and this court's show cause order, on December 3, 2001 Respondent filed her answer. She concedes that petitioner has exhausted his administrative remedies since no state habeas application is necessary to exhaust state remedies before challenging a disciplinary proceeding. See Ex parte Brager, 704 S.W.2d 46, 46 (Tex.Crim.App. 1986). Therefore, the petition is before the court on the merits.
Anderson availed himself of the two-step grievance process for appealing the disciplinary proceeding in his case. Resp.'s Answer at Ex. C.
Findings and Conclusions:
"Federal habeas relief cannot be had `absent the allegation by a [petitioner] that he or she has been deprived of some right secured to him or her by the United States Constitution or the laws of the United States.'" Malchi v. Thaler, 211 F.3d 953, 957 (5th Cir. 2000) ( quoting Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995)). Moreover, with respect to prisoners "the Due Process Clause does not protect every change in the conditions of confinement having a substantial adverse impact on the prisoner." Sandin v. Conner, 515 U.S. 472, 479, 115 S.Ct. 2293, 2297 (1995)( quoting Meachum v. Fano, 427 U.S. 215, 222, 96 S.Ct. 2532, 2537, 49 L.Ed.2d 451 (1976)). Lawful incarceration necessarily results in the withdrawal or loss of many privileges and rights. See Madison v. Parker, 104 F.3d 765, 767 (5th Cir. 1997).
States may, nevertheless, create liberty interests that are protected by the Due Process Clause. Sandin, 115 S.Ct. at 2300; Madison, 104 F.3d at 767. However, these interests are limited to state regulations or statutes which affect the quantity rather than the quality of prison time served. Madison, 104 F.3d at 767. Moreover, absent "atypical and significant hardship," a change in the conditions of confinement simply does not inflict a cognizable injury that merits constitutional protection. Id. at 768.
The Texas Court of Criminal Appeals has determined that the "Release to Mandatory Supervision" statute, codified at TEX. GOVT. CODE ANN. § 508.147, creates a liberty interest in mandatory supervision release. Ex parte Geiken, 28 S.W.3d 553, 558 (Tex. Ct. Crim. App. 2000)( en banc)( citing Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 11-12, 99 S.Ct. 2100, 2105 (1979)). Accord Malchi v. Thaler, 211 F.3d at 957-58 (the Fifth Circuit held that if a prisoner is eligible for release on mandatory supervision, "there is 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.").
Therefore a challenge to a disciplinary proceeding presents a cognizable constitutional violation when a prisoner, eligible for mandatory supervision release, has lost good-time credits. See Malchi, 211 F.3d at 957-58; Madison, 104 F.3d at 769. When a state creates a right to good-time credit and recognizes that its revocation is an authorized sanction for misconduct — as Texas has —, a prisoner's interest therein 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 at 768 ( citing Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974). Accordingly, in order to pass constitutional muster "the loss of good-time credits under a state statute that bestowed mandatory sentence reductions for good behavior must be accompanied by certain procedural safeguards in order to satisfy due process." Id. at 769 ( citing Wolff).
The Respondent argues that only Anderson's claim with respect to his loss of good-time credit presents a cognizable claim in light of the fact that he was both deprived of good-time credit and was eligible for mandatory supervision release.
TEX. CODE CRIM. PRO. ANN. § 42.18 sec. 8(c)(5) — entitled "Adult Parole and Mandatory Supervision" — was repealed in 1997 — the year of Anderson's conviction — and replaced by TEX. GOV'T. CODE ANN. § 508.149(a)(6) — entitled "Inmates Ineligible for Mandatory Supervision." The language contained in the recodification is substantially identical to the former § 42.18 with the addition of "or has been previously convicted of' language to the existing "currently serving a sentence for," further expanding the class of prisoners exempted from release into mandatory supervision. However, unchanged are the two limitations — one offense based, the other based on an affirmative deadly weapon finding — which preclude eligibility for such release, neither of which apply to Anderson.
The court finds that to the extent that Anderson challenges his forty-five days of recreational restriction, his forty-five days of commissary restriction, and his increase in custody level, all of which merely constitute changes in the conditions of his confinement, he has wholly failed to raise grounds which implicate due process concerns. See Malchi, 211 F.3d at 958 (appellant's loss of commissary privileges and cell restriction do not implicate due process concerns); see Madison, 104 F.3d at 763 (appellant's commissary and cell restrictions are merely changes in the conditions of confinement and do not implicate due process concerns); see Wilson v. Budney, 976 F.2d 957, 958 (5th Cir. 1992) (a prisoner has no inherent constitutional right to any particular classification or custody level). Additionally, with respect to Anderson's two grade reduction in good-time-earning status, the Fifth Circuit has specifically held that "the timing of [an inmate's] release is too speculative to afford him a constitutionally cognizable claim to the `right' to a particular time earning status," Malchi, at 959, and therefore this reduction does not raise a due process issue.
The court now turns to the questions of (1) what procedural due process Anderson was entitled to and (2) what process was actually afforded him. Wolff v. McDonnell, supra, informs the court's analysis.
Although prisoners do retain rights under the Due Process Clause, prison disciplinary proceedings are not part of a criminal prosecution and the full array of rights due a defendant in such proceedings does not apply. Wolff, 418 U.S. at 556 ( citing Morrissey v. Brewer, 408 U.S. 471, 488, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)).
In the context of a prison disciplinary hearing, due process requires that an inmate be provided: (1) at least twenty-four-hour advance written notice of the disciplinary charges; (2) an opportunity to call witnesses and present documentary evidence when the presentation is not unduly hazardous to institutional safety or correctional goals and (3) a written statement by the factfinder of the evidence relied upon and the reason for the disciplinary action. Wolff, at 563-66. The Court specifically declined to include the right of confrontation, cross-examination, or counsel, either retained or appointed, to prisoners in such a hearing. Id. at 567-70. However, the Court did leave open the possibility of assistance from a fellow inmate or substitute aid from the prison staff, for an illiterate prisoner or complex case. Id. at 570.
Anderson's fellow inmates did not appear in person at the disciplinary hearing since the Smith Unit was in lock-down status on the date of his hearing. See Resp.'s Answer at Ex. C, p. 3. However, Anderson was permitted to present what each would have said if called — i.e., that he was in the day room playing dominoes. Id. at Ex. B, pp. 1, 8.
Ms. Dorman was appointed as Anderson's substitute counsel. See Resp.'s Answer at Ex. B, pp. 4, 7.
In this case, the record reflects that prison officials did not violate Petitioner's due process rights. Prison officials notified Petitioner of the disciplinary charges on March 19, 2001, and the disciplinary hearing was held March 22, 2001. Resp.'s Answer at Ex. B. Petitioner, therefore received at least twenty-four-hour advance notice of the charges against him. Petitioner requested, and received, a staff representative to serve as counsel substitute for the hearing. Id. Petitioner called, and questioned various witnesses. Id. Finally, the Hearing Officer provided Petitioner with a written statement detailing the evidence he relied upon in finding Petitioner guilty. Id. Anderson clearly received all the due process afforded him. Therefore, to the extent that Petitioner claims that he was denied due process, such claims are without merit and should be denied.
Petitioner signed and dated the "Offender Notification" form March 19, 2001. Resp.'s Answer at Ex. B, p. 1. Additionally, despite Petitioner's allegation, he was not entitled to "immediate" notice.
Since an inmate has no constitutionally guaranteed right to counsel in a disciplinary proceeding ( see Wolff, at 570), it necessarily follows that he has no cognizable claim of ineffective assistance of counsel under the Sixth Amendment. C.f Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S.Ct. 1300, 1301 (1982); see, e.g., Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990 (1987).
To the extent that Petitioner contends that there was insufficient evidence to substantiate his guilt, the same is equally lacking in merit and should be denied. In prison disciplinary proceedings, due process requires only that there be "some evidence to support the findings." Hudson v. Johnson, 242 F.3d 534, 536 (5th Cir. 2001); Smith v. Rabalais, 659 F.3d 539, 545 (5th Cir. 1981) (stating courts must determine "whether any evidence at all supports the action taken by prison officials.") (emphasis added). Moreover, disciplinary determinations "will not be disturbed unless they are arbitrary and capricious." Banuelos v. McFarland, 41 F.3d 232, 234 (5th Cir. 1995).
In this case, the Hearing Officer relied upon the oral testimony of Officer Ladou, wherein he related that "[he] and another officer witnessed Petitioner place a towel over a door's locking mechanism and then close the door." Resp.'s Answer at Ex. B, p. 8. Further, Officer Ladou related that "[he] opened the door and the towel fell out." Id. The Hearing Officer then weighed Officer Ladou's testimony against Petitioner's alibi testimony that "it was not [him]" and that "[he] was in the dayroom." Id. Accordingly, the court finds that Officer Ladou's testimony constitutes more than "some evidence" to support the Hearing Officer's finding, which, in turn, forecloses any finding that the decision rendered was arbitrary or capricious.
RECOMMENDATION
For the foregoing reasons it is recommended that the § 2254 petition for habeas corpus relief be DENIED.