Opinion
2:01-CV-0440
October 29, 2003
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 365 days good time credits. The petitioner, OTIS J. ROMAN, 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. Exparte 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. Exparte 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, OTIS J. ROMAN, was charged in disciplinary case number 20010149195 with "participating in a riot" and "being out of place." Following a disciplinary hearing, he was found guilty of the disciplinary infractions and assessed a punishment which included forfeiture of 365 days accrued good time, 45 days each of recreation, cell restriction and commissary restriction, and his line-class status remained at L3. Petitioner is serving sentences for burglary of a motor vehicle, and escape; he is eligible for mandatory release. Since one of his offenses 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 guilty finding in the disciplinary proceeding, petitioner filed a Step 1 grievance on February 8, 2001, which was denied on March 1, 2001. Next, on May 26, 2001, petitioner filed a Step 2 grievance which was denied on June 6, 2001.
II. PETITIONER'S ALLEGATIONS
On the form provided to him by prison officials, petitioner raises two grounds of alleged error in which he contends:
1. prison officials violated petitioner's due process rights because he was denied access to and the right to have a tape of the incident played to the DHO; and 2. prison officials violated petitioner's equal protection rights because the same DHO gave another inmate involved in the riot a less severe punishment.
III. MERITS A. Due Process
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). 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).
Viewing the evidence in the light most favorable to petitioner, evidence at the hearing established that Officer Vela identified petitioner as a person involved in the riot in a tape-recording of the incident. Officer Vela signed an "Offense Report" on January 31, 2001, in which he said he positively identified petitioner as participating in a riot. Officer Vela also stated that he observed petitioner, on the video, in the back of the dining hall are where he had no authorization to be there. Further, in response to petitioner's Step 2 grievance, TDCJ advised that the unit grievance investigator reviewed the videotape with the officer "to identify [petitioner]."
The Fifth Circuit has held that the findings in disciplinary hearings "will 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 undersigned Magistrate Judge finds that there was "some evidence" to support the disciplinary hearing officer's decision and, therefore, petitioner's due process rights were not violated.
B. Equal Protection
With regard to petitioner's claim that his equal protection rights were violated because he received a harsher punishment than another inmate disciplined as part of the riot, it appears the punishment petitioner received was within the TDC J's guidelines for a Level 1 offense.
Petitioner does not claim that the punishment he received violated the guidelines, only that he "suffered a greater punishment for a far lesser charge." The Court is not convinced. Petitioner has wholly failed to state a claim upon which he is entitled to relief.
Petitioner's second ground is without merit.
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 OTIS J. ROMAN 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.