Opinion
2:00-CV-0043
November 4, 2002
REPORT AND RECOMMENDATION TO DENY PETITION FOR A WRIT OF HABEAS CORPUS
This habeas corpus petition, filed pursuant 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. The petitioner, RAY DON DUPREE, 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 petitioner presents his constitutional challenges to the federal court directly following the prison adjudication. The Texas Court of Criminal Appeals has declared that, with respect to the refusal to award good time credit based on inmate classification or disciplinary procedures, it will assume that whatever determination of such matters is made by the director of the Texas Department of Criminal Justice, was made in accordance with his authority as well as in accordance with due process and due course of law. Ex parte Palomo, 759 S.W.2d 671 (Tex.Crim.App. — 1988). Further, in Ex parte Brager, 704 S.W.2d 46 (Tex.Crim.App. — 1986), the Court of Criminal Appeals held the court would not entertain claims concerning alleged violations of prison disciplinary procedures, even in a case resulting in loss of good time.
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, RAY DON DUPREE, was charged in disciplinary case number 19990344176 with the offense of attempted assault of an officer. Following a disciplinary hearing, petitioner was found guilty of the disciplinary infraction and assessed a punishment which included forfeiture of one hundred eighty (180) days accrued good time. Since petitioner was convicted of the offense of delivery of a controlled substance, he is eligible for mandatory release, and 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). Following the finding of guilty in the disciplinary proceeding, petitioner filed, on July 22, 1999, a Step 1 grievance which was denied. Petitioner then filed, on October 7, 1999, a Step 2 grievance which was denied on October 21, 1999.
II. PETITIONER'S ALLEGATIONS
Petitioner contends his Fourteenth Amendment due process rights were violated during the disciplinary proceeding as a result of:
1. Officers' giving falsified statements and state documents;
2. Officer's giving false testimony in the hearing to concede his report was true; and
3. Officer's refusal to allow questioning of key witness Vaughn or the charging officer.
III. 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) an opportunity to call witnesses and/or present documentary evidence when such presentation is not unduly hazardous to institutional safety or correctional goals; and (3) a written statement by the fact finder of the evidence relied upon and the reasons for the disciplinary action.It is the law of the Fifth Circuit, however, 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). Further, the federal courts do not review the sufficiency of the evidence since a finding of guilt requires only the support of some facts, or any evidence at all. Gibbs v. King, 779 F.2d 1040, 1044 (5th Cir. 1986).
In this case, the disciplinary records reflect petitioner received five (5) days' notice of the disciplinary charge against him, that he was represented by counsel substitute, and that he had an opportunity to call and question witnesses. The hearing officer supported his finding of guilt in that such finding was based upon the testimony of Sargent Soto, the officer's written report, and the statement from Officer Vaughn, and also set forth the reasons for the assessment of the punishment including the forfeiture of good time.
Petitioner's allegations that Officer Soto and Officer Vaughn falsified testimony and documents are without merit. The hearing officer was the determiner of the credibility of the witnesses and of the evidence presented, and petitioner has presented no allegation that his due process rights were violated per Wolff v. McDonnell, supra. Likewise, petitioner's allegations that he was denied the right to question witnesses is without merit. While Wolff requires an opportunity to call witnesses and present documentary evidence, petitioner's right to do so is not absolute. Wolff 418 U.S. at 566. Furthermore, an inmate does not have a constitutional right to cross-examination and confrontation of those providing evidence against him. Wolff, 418 U.S. at 567-68.
IV. 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 RAY DON DUPREE is without merit and should be, in all things, DENIED.
V. 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.