Opinion
2:01-CV-0232
April 1, 2004
REPORT AND RECOMMENDATION TO DENY PETITION FOR A WRIT OF HABEAS CORPUS
This habeas corpus petition, filed pursuant to 28 U.S.C. § 2254, does not challenge the legality of the conviction and sentence by which petitioner is being held by respondent, but instead, challenges an adjudication of guilt as a result of a prison disciplinary charge and hearing, and the resultant forfeiture of 180 days good time credits. Petitioner STEVEN DILLARD appealed the disciplinary adjudication within the prison grievance process filing both a Step 1 and a Step 2 grievance challenging the result of the disciplinary proceeding. No state court has heard petitioner's challenges, and he presents his constitutional challenges to the federal court directly following the prison adjudication. The Texas Court of Criminal Appeals declared that it would not entertain claims concerning alleged violations of prison disciplinary procedures, even in a case resulting in loss of good time. Ex parte Brager, 704 S.W.2d 46 (Tex.Crim.App. 1986). Two years later, the Court of Criminal Appeals held that, with respect to the refusal to award good time credit based on inmate classification or disciplinary procedures, it will assume the determination made by the Director of the Texas Department of Criminal Justice was made in accordance with her authority as well as in accordance with due process and due course of law. Ex parte Palomo, 759 S.W.2d 671, 674 (Tex.Crim.App. 1988) (op. on reh'g). Notwithstanding the Texas court's refusal to hear forfeiture of good time claims, it is well-settled that forfeiture of good time is cognizable by habeas corpus. Consequently, this case comes to the federal court without any prior state court review and, arguably, the provisions of the AEDPA providing for deference to prior state court adjudications are inapplicable.
I. PROCEEDINGS
Petitioner, STEVEN DILLARD, was charged in disciplinary case number 20000367915 with soliciting assistance from an officer to violate an employee rule. Following a disciplinary hearing, he was found guilty of the disciplinary infraction and assessed a punishment which included forfeiture of 180 days accrued good time, 30 days each of cell and commissary restriction, 15 days of solitary confinement, and reduction in line-class status from S3 to L1. Petitioner is currently serving concurrent sentences of 20 years for delivery of methamphetamine, 20 years for delivery of amphetamine, and 30 years for indecency with a child; he is eligible for mandatory release. Since his conviction occurred prior to September 1, 1996, there is no question that he has a liberty interest in his good time credits. Malchi v. Thaler, 211 F.3d 953, 956 (5th Cir. 2000).
II. EXHAUSTION OF ADMINISTRATIVE REMEDIES
Even though there may have been a problem with petitioner's Step 1 grievance being misplaced, the Attorney General's office believes he has exhausted his remedies.
III. PETITIONER'S ALLEGATION
On the form provided to him by prison officials, petitioner appears to raise the constitutionality of his disciplinary hearing based upon his due process rights under the Constitution. Under such constitutional claim, petitioner argues the evidence was insufficient to find he was guilty of the disciplinary infraction.
IV. MERITS
In order to prevail, petitioner must show his due process rights were violated during the disciplinary process. The United States Supreme Court has set out the due process to which a prisoner is entitled during a disciplinary proceeding. In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the court held that while disciplinary proceedings are not part of the criminal prosecution process and, therefore, the full panoply of rights does not apply, there are certain minimal due process provisions which are required. Those are: (1) advance written notice of the charges; (2) a written statement by the fact finder of the evidence relied upon and the reasons for the disciplinary action; and (3) an opportunity to call witnesses and/or present documentary evidence when such presentation is not unduly hazardous to institutional safety or correctional goals. Wolff, 418 U.S. at 563-566.
In addressing these type of cases, the Fifth Circuit has declared that the findings of the prison disciplinary hearing shall not be disturbed unless they are arbitrary and capricious. Banuelos v. McFarland, 41 F.3d 232, 234 (5th Cir. 1995). When the decision of prison officials is to revoke good time credits, the "relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Spaulding v. Collins, 867 F. Supp. 499, 510 (S.D. Tex 1993), citing Superintendent v. Hill, 472 U.S. 445, 455 105 S.Ct. 2678, 86 L.Ed.2d 356 (1985). So long as there is "any evidence at all" to support the disciplinary hearing officer's findings, the result of the hearing will be upheld. Smith v. Rabalais, 659 F.2d 539, 545 (5th Cir. 1981), cert. denied, 455 U.S. 992, 102 S.Ct. 1619, 71 L.Ed.2d 853 (1982).
The Magistrate Judge has considered the evidence presented to the disciplinary hearing officer (DHO). According to the Service Investigation Worksheet, the DHO relied upon the following evidence to support his finding: (1) I210 by Ms. Coalston; (2) IOC by Major Armstrong; (3) a photo of the contraband; (4) IOC by Mr. Coalston; (5) IOC from Ms. Coalston; (6) letter from co-conspirator Lanier and Lanier's wife; and (7) CI form from Major Armstrong.
This Court does not assess the weight of the evidence in its review of a prison disciplinary hearing. See Hill, 472 U.S. at 455-56. Instead, an examination is conducted to determine only if the guilty finding has support of some facts or any evidence at all. Gibbs v. King, 779 F.2d 1040, 1044 (5th Cir. 1986). Clearly, there are some facts to support the finding that petitioner committed the charged disciplinary infraction. The documentation submitted with respondent's answer, including the document from Major Armstrong entitled "Inter-Office Communications," and the document entitled "Confidential Informant Checklist for Disciplinary Hearings" support the finding of guilt. In the first document, Major Armstrong expressed that offender Lanier (the co-conspirator) "stated that [petitioner] and he had discussed this transaction and they believed Mr. Coalston would bring the items to them." Major Armstrong also stated that "confidential informants were used to corroborate the incident and further implicated [petitioner] as taking an active part in the transaction."
The Court is of the opinion that the evidence reached the level of constituting "some facts" or "any evidence at all" as required in the context of a prison disciplinary case.
V. CONCLUSION
Based upon the foregoing, it is the opinion and finding of the undersigned United States Magistrate Judge that the petition for writ of habeas corpus filed by STEVEN DILLARD is without merit and should be, in all things, DENIED.
VI. INSTRUCTIONS TO THE CLERK AND TO THE PARTIES
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner, by certified mail, return receipt requested, and to counsel for respondent by regular U.S. mail.
Any party may object to these proposed findings, conclusions, and recommendation within fourteen (14) days after its date of filing. See 28 U.S.C. § 636(b); Fed.R.Civ.P. 5(b); 6(e). Any such objections shall be made in a written document entitled "Objections to Report and Recommendation," and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on the Magistrate Judge and all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
IT IS SO RECOMMENDED.