Opinion
No. 105,808.
2011-10-28
Milo A. JONES, Appellant,v.Roger WERHOLTZ, et al., Appellees.
Appeal from Butler District Court, John E. Sanders, Judge.Milo A. Jones, appellant pro se.Julie St. Peter, of Kansas Department of Corrections, of El Dorado, for appellee.Before STANDRIDGE, P.J., McANANY and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Milo A. Jones, a prison inmate, appeals the district court's summary denial of his K.S.A. 60–1501 petition. Jones contends that his due process rights were violated during the course of his prison disciplinary proceeding when the hearing officer failed to call an inmate witness.
Jones was accused of urinating on a wall near the prison exercise area. He was charged with unsanitary practices in violation of K.A.R. 44–12–105.
Before the disciplinary hearing, Jones filed an “Inmate Request for Witness” form, in which he indicated that Inmate Jimmy Logsdon would testify that “[t]here was a puddle in his cage and he had to splash around in it.” The hearing officer noted that the request was approved and “[a]ccepted as statement.”
At the disciplinary hearing, Inmate Denelious Williams appeared as a witness for Jones. There is no record of any further requests to call Logsdon as a witness. After Williams completed his testimony, the notes memorializing the events of the hearing indicate Jones had “[n]othing further.” Jones then gave his closing statement.
After hearing the testimony and viewing a video of the wall in question, the hearing officer found Jones guilty of violating K.A.R. 44–12–105 and imposed 30 days of disciplinary segregation, 30 days of privilege restrictions, loss of 90 days of good time credits, and a $15 fine.
Jones appealed to the Secretary of Corrections, claiming he was denied due process because the hearing officer failed to call Logsdon as a witness. Jones also asserted the insufficiency of the evidence. The Secretary upheld the hearing officer's decision.
Jones then filed a petition for writ of habeas corpus under K.S.A. 60–1501. The Secretary answered, stating that after Jones called Williams as a witness, he “chose not to call any further witnesses.” This assertion was supported by a sworn affidavit from the hearing officer, who indicated that Jones did not request the testimony of Logsdon at the hearing. The district court summarily denied relief on Jones' petition, ruling that “[h]is complaint about calling a witness appears to have been his own tactical decision not to call said witness. There is no evidence that any due process violations or arbitrary or capricious acts on the part of prison officials occurred.”
Following the denial of Jones' motion for reconsideration, he appealed to us. His sole argument on appeal is that the hearing officer violated his due process rights by failing to call Logsdon as a witness. We review de novo the district court's summary dismissal of a petitioner's K.S.A. 60–1501 claim. Johnson v. State, 289 Kan. 642, 649, 215 P.3d 575 (2009). In doing so, we must determine whether Jones alleges “shocking and intolerable conduct or continuing mistreatment of a constitutional nature.” Schuyler v. Roberts, 285 Kan. 677, 679, 175 P.3d 259 (2008). We accept as true the allegations in the petition to determine if the facts alleged and their reasonable inferences state a claim for relief. The district court is entitled to summarily dismiss a K.S.A. 60–1501 petition “[i]f it plainly appears from the face of the petition and any exhibits attached thereto that the plaintiff is not entitled to relief in the district court.” K.S.A. 60–1503(a).
Here, Jones has the burden of proving a violation of his constitutional rights in this habeas corpus proceeding. See Starr v. Bruce, 35 Kan. App, 2d 11, 12, 129 P.3d 583 (2005), rev. denied 280 Kan. 984 (2006). However, we need not go through the full due process analysis to resolve this appeal. Jones' appeal is predicated on the notion that the hearing officer refused to call a witness Jones requested for his defense. If the hearing officer did not refuse to honor Jones' request, then that ends the matter.
Jones claims that his due process rights were violated when the hearing officer failed to call his witness without providing a reason for the denial. Jones provided the witness request form that showed that his request for Logsdon as a witness was approved, but he asserts the hearing officer gave “no valid reasons of why my requested witness was not called.”
The record reflects that Jones was offered the opportunity to call witnesses at the disciplinary hearing in his defense as required by K.A.R. 44–13–101(c)(5). In fact, he was allowed to call Williams as a witness even though Williams was not previously approved on the “Inmate Request for Witness” form. After Williams testified, Jones indicated he had “nothing further” and presented his closing argument. It is apparent that Jones simply failed to take advantage of the opportunity to call Logsdon as a witness, and there is no indication that the hearing officer did not allow him to do so. In fact, in a sworn affidavit, the hearing officer indicated that Jones chose not to call Logsdon as a witness. Jones does not dispute this. In fact, Jones refers to Logsdon as the witness that he “intended to call.” Jones rested his case without calling Logsdon to testify on his behalf. Jones' argument erroneously places the burden on the hearing officer to identify and call witnesses on Jones' behalf. The hearing officer is a neutral arbiter of the facts, not an advocate for the inmate. It was not the hearing officer's burden to call witnesses on Jones' behalf.
Jones relies on Ponte v. Real, 471 U.S. 491, 495–98, 105 S.Ct. 2192, 85 L.Ed.2d 553 (1985) (holding that due process requires that prison officials at some point state their reasons for refusing to call witnesses requested by an inmate at a disciplinary hearing), and Shepherd v. Davies, 14 Kan.App.2d 333, 336–38, 789 P.2d 1190 (1990) (an inmate should be provided a reasonable basis for the denial). Neither controls. They are predicated on a prison official's refusal to permit the testimony of a witness requested by an inmate. Here, there was no refusal to permit Jones' requested witness to testify. Accordingly, the district court did not err in summarily dismissing Jones' K.S.A. 60–1501 petition.
Affirmed.