Martin v. Dretke

Full title: CLARENCE R. MARTIN, Petitioner, v. DOUGLAS DRETKE, Director, Texas…

Court: United States District Court, N.D. Texas, Amarillo Division

Date published: Mar 4, 2005

No. 2:05-CV-0043 (N.D. Tex. Mar. 4, 2005)

Opinion

No. 2:05-CV-0043.

March 4, 2005

REPORT AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS

CLINTON AVERITTE, Magistrate Judge

In this habeas corpus proceeding, petitioner CLARENCE R. MARTIN challenges a prison disciplinary ruling finding him guilty of violating prison regulations, and the resultant forfeiture of 180 days good time credit. For the following reasons, it is the opinion of the undersigned United States Magistrate Judge that petitioner's habeas application should be denied.

I. PROCEEDINGS

Petitioner was charged in disciplinary case number 20040248189 with violating prison regulations. It is not entirely clear, and petitioner has failed to set forth the specific violation, but upon a review of the habeas application, it appears petitioner was alleged to have attacked a captain at the prison facility. (Petitioner's Habeas Application at 7). At the disciplinary hearing on May 12, 2004, petitioner was found guilty and was assessed a punishment which included forfeiture of one hundred and eighty (180) days accrued good time.¹ Following the finding of guilty in the disciplinary proceeding, petitioner filed a Step 1 grievance which was denied on June 15, 2004. Petitioner filed a Step 2 grievance which was denied on July 15, 2004. As petitioner is eligible for mandatory release, and because his conviction occurred prior to September 1, 1996, there is no question that he has a liberty interest in his forfeited good time credits. Malchi v. Thaler, 211 F.3d 953, 956 (5^th Cir. 2000).

1 Petitioner contends he received 15 days of solitary confinement, 45 days each of loss of recreation and commissary privileges, as well as placement within high security. To the extent that MARTIN challenges the loss of recreation and commissary privileges, cell restriction, or a reprimand, these claims do not present grounds for federal habeas corpus review and the Due Process Clause is not implicated by these changes in the conditions of his confinement. Only liberty interests, whether inherent or state-created, are protected by the Due Process Clause. Madison v. Parker, 104 F.3d 765, 767 (5th Cir. 1997).

II. PETITIONER'S ALLEGATIONS

Petitioner contends his due process rights were violated during the disciplinary proceeding in the following respects:

1. He was denied the opportunity to call or question requested witnesses on his behalf at the disciplinary hearing; and

2. He was denied the opportunity to present statements taken from witnesses at the disciplinary hearing.

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 required to be satisfied. 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 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 (5^th 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 (5^th Cir. 1986).

In this case, although petitioner has not produced the disciplinary records relative to his case, he appears to aver that his due process rights were violated under Section (2) listed above, because he was denied an opportunity to call witnesses and/or present documentary evidence when such presentation was not unduly hazardous to institutional safety or correctional goals.

Petitioner alleges he was denied the right to call two witnesses, Nurse Smith, apparently a T.D.C.J. — I.D. nurse, and Offender Green, an inmate. Alternatively, petitioner appears to allege his request to take statements from these two witnesses was also denied.

Petitioner is not entitled to relief on the basis of a denial of these witnesses. The right to call witnesses at a prison disciplinary hearing is not absolute. Prison officials may deny a request when the projected testimony is irrelevant, is unnecessary, or creates a hazard to institutional safety or correctional goals. In Ponte v. Real, 471 U.S. 491, 499, 105 S.Ct. 2192, 2197, 85 L.Ed.2d 553 (1985), the Supreme Court remarked that the discretion of prison officials was so broad that "it may be that a constitutional challenge to a disciplinary hearing [based upon an inmate's right to call witnesses] . . . will rarely, if ever, be successful." This case does not present one of those rare instances where the denial of witnesses, if such was erroneous, justifies relief to petitioner.

Petitioner has not proffered what the two witnesses were expected to testify about. It is apparent from petitioner's recitation of the administrative appeals decision that the, "Unit Warden stated he found no procedural due process errors" and that the, "Regional Director concluded that my points of appeal had to (sic) found to be without merit." (Petitioner's Habeas Application at 5). Therefore, even assuming, for purposes of argument, that petitioner properly requested those witnesses, he has not shown they were wrongfully excluded, and he has absolutely failed to show how he was prejudiced by such exclusion. Petitioner's allegations are conclusory and should be denied.

IV. RECOMMENDATION

Based upon the foregoing, it is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the petition for a writ of habeas corpus filed by petitioner CLARENCE R. MARTIN is without merit and should be, in all things, DENIED.

V. INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner by the most efficient means available.

IT IS SO RECOMMENDED.