Opinion
NO. 3-03-CV-1822-N
January 22, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Richard Robinson, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be denied.
I.
Petitioner is serving a 10-year prison sentence for retaliation and burglary of a habitation. While incarcerated at the William P. Clements Unit of the TDCJ-ID, petitioner was twice convicted of refusing to work, a Level 2, Code 25 disciplinary infraction. Punishment in the first case was assessed at 45 days commissary and recreation restriction, 45 days cell restriction, reduction in custodial classification from L1 to L2, and loss of 15 days of good time credits. In the second case, punishment was assessed at 45 days commissary and recreation restriction, 45 days cell restriction, 45 days property restriction, reduction in custodial classification from L2 to L3, and loss of 30 days of good time credits. Petitioner challenged the results of his second disciplinary hearing through the prison grievance process. His grievances were denied. Petitioner then filed this action in federal court.
II.
Petitioner challenges both of his disciplinary convictions on multiple grounds. Succinctly stated, petitioner contends that: (1) his right to due process was violated by the use of a coerced confession and retaliation; (2) he received ineffective assistance of counsel; and (3) he was denied the right to an appeal.
Respondent correctly points out that all these claims are unexhausted. Petitioner did not challenge his first disciplinary conviction through the prison grievance process and attacked his second conviction on grounds that are not raised in his habeas petition. ( See Resp. Ans. at 4, 5-8 Exh. D). Although a prisoner must ordinarily exhaust state remedies before seeking federal habeas relief, "[a]n application for writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2). Because the court determines that petitioner is not entitled to relief in any event, the court will consider his claims on the merits.
A.
The due process rights of prisoners are generally limited to freedom of restraint which "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995). Restrictions which alter the conditions of confinement do not implicate due process. See Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000) (commissary and cell restrictions); Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997) (same). A prisoner has a protected liberty interest in the loss of accrued good time only if he is eligible for release to mandatory supervision. Malchi, 211 F.3d at 957-58. See also Creel v. Keene, 928 F.2d 707, 712 (5th Cir.), cert. denied, 111 S.Ct. 2809 (1991) (Texas prisoners have no protected liberty interest in early release on parole).When a prisoner has a protected liberty interest in the loss of accrued good time credit, the revocation of such credit must comply with minimal procedural due process. Henson v. United States Bureau of Prisons, 213 F.3d 897, 898 (5th Cir. 2000). See also Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974) (prisoners entitled to "those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated"). These minimal requirements are: (1) written notice of the alleged disciplinary violation at least 24 hours prior to a hearing; (2) the ability to call witnesses and present documentary evidence when not unduly hazardous to institutional safety or correctional goals; and (3) a written statement of the hearing officer as to the evidence relied on and the reasons for any disciplinary action taken. Wolff, 94 S.Ct. at 2978-79. Federal habeas review of the sufficiency of the evidence to support a disciplinary conviction is extremely limited. Due process requires only "some evidence to support the findings made in the disciplinary hearing." Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 457, 105 S.Ct. 2768, 2775, 86 L.Ed.2d 356 (1985). See also Smith v. Rabalais, 659 F.2d 539, 545 (5th Cir. 1981), cert. denied, 102 S.Ct. 1619 (1982) (court must determine whether "any evidence at all" supports disciplinary action taken by prison officials); Taylor v. Dretke, 2003 WL 22718259 at *3 (N.D. Tex. Nov. 17, 2003); Van v. Johnson, 2001 WL 741724 at *2 (N.D. Tex. May 21, 2001), rec. adopted, 2001 WL 720504 (N.D. Tex. Jun. 21, 2001).
B.
The court initially observes that temporary commissary, recreation, cell, and property restrictions and a reduction in time-earning status do not implicate due process. See Malchi, 211 F.3d at 958; Madison, 104 F.3d at 768. However, petitioner also lost a total of 45 days of good time credits. Because petitioner is eligible for release to mandatory supervision, he has a protected liberty interest sufficient to justify the consideration of his claims. Malchi, 211 F.3d at 958-59.
Respondent acknowledges that petitioner's claims must be considered on the merits "because good time credit was taken away from Robinson and he is eligible for mandatory supervision." (Resp. Ans. at 10-11).
1.
Petitioner first contends that his right to due process was violated by the use of a coerced confession and retaliation. The court initially notes that no "confession" or any other written statement made by petitioner is contained in the record. Instead, it appears that both disciplinary charges were based entirely on 1-210 offense reports. In the first case, Officer Thomas reported that petitioner refused to work on April 29, 2003 without a legitimate reason. (Resp. Ans., Exh. B at 2, 3 7). In the second case, Officer Dwight wrote that petitioner refused to turn out for a work assignment on May 7, 2003 because "I have high blood pressure and I am diabetic and I ain't fixing to go out in that sun." ( Id., Exh. C at 2, 3 10). These reports, which petitioner did not refute, constitute all the evidence necessary to establish a disciplinary infraction. See Hudson v. Johnson, 242 F.3d 534, 537 (5th Cir. 2001) (incident report is "some evidence" of guilt); Taylor, 2003 WL 22718259 at *3 (same); Christoph v. Cockrell, 2003 WL 21750705 at *2 (N.D. Tex. Jul. 24, 2003) (same).Nor has petitioner shown that the hearing decisions were motivated by retaliation. The Fifth Circuit has recognized that "[t]he prospect of endless claims of retaliation on the part of inmates would disrupt prison officials in the discharge of their most basic duties. Claims of retaliation must therefore be regarded with skepticism, lest federal courts embroil themselves in every disciplinary act that occurs in state penal institutions." Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995), cert. denied, 116 S.Ct. 800 (1996), quoting Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994), cert. denied, 115 S.Ct. 1371 (1995). Here, petitioner offers nothing more than conclusory assertions that his disciplinary convictions were the result of retaliation on the part of the hearing officer. Absent evidence in the record to support such a claim, petitioner is not entitled to habeas relief. See Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983); Taylor, 2003 WL 22718259 at *3.
2.
In two related grounds, petitioner complains that his counsel substitute did not make an independent investigation of the facts, failed to present any evidence or cross-examine witnesses, and prevented him from appealing his convictions. This claims fails for two reasons. First, there is no constitutional right to counsel at a prison disciplinary hearing. Baxter v. Palmigiano, 425 U.S. 308, 315, 96 S.Ct. 1551, 1556, 47 L.Ed.2d 810 (1976). See also Van, 2001 WL 741724 at *3 (citing cases). Second, there is no evidence that petitioner asked his counsel substitute to interview or cross-examine witnesses. In fact, petitioner refused to attend the disciplinary hearings or assist in his defense. ( See Resp. Ans., Exh. B at 5 Exh. C at 8). Nor has petitioner shown that his counsel substitute prevented him from appealing his convictions. Petitioner's conclusory assertions that he received ineffective assistance of counsel at his disciplinary hearings do not merit habeas relief. See Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.), cert. denied, 121 S.Ct. 122 (2000); Christoph, 2003 WL 21750705 at *2.RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.