Opinion
7:01-CV-098-R
October 10, 2001
ORDER OF DISMISSAL
This is a petition for writ of habeas corpus brought under 28 U.S.C. § 2254 by an inmate confined in the James V. Allred Unit of the Texas Department of Criminal Justice ("TDCJ"). On September 14, 2001, questions were issued to Petitioner, his answers to which were filed on September 24, 2001.
Petitioner, Roger Dale Shepherd, is serving a 20-year sentence for burglary of a habitation with intent to commit theft Petitioner's Answer to the Court's Question No. 2. While incarcerated in the Allred Unit, he was charged with a disciplinary infraction which occurred on January 9, 2001. Specifically, Shepherd was charged with attempting to establish an inappropriate relationship with a female staff member, He was found guilty of the charge in a disciplinary hearing that was conducted on January 16, 2001. As punishment, Petitioner was denied a promotion in his prison classification, thereby, delaying parole consideration for another year. Petitioner's Answer to the Court's Question No. 1 He also lost 45 days of recreation privileges, 45 days of commissary privileges and 30 days of good time credits. Id. Shepherd challenged the results of the disciplinary proceeding through the prison grievance process. The grievances were denied. He then filed this action in federal court.
Petitioner presents the following grounds for habeas relief:
1. Denial of the right to a fair and justifiable hearing;
2. Insufficient evidence to support a finding of guilt;
3. He was only 15 days away from a classification promotion which would have resulted in parole eligibility;
4. The charging officer did not write the offense report, and;
5. He was denied effective assistance of counsel.
The due process rights of prisoners are generally limited to freedom of restraint which "impose 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 (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.) (finding that Texas prisoners have no protected liberty interest in early release on parole), cert. denied, 501 U.S. 1210, 111 S.Ct 2809 (1991).
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 Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct 2963, 2975 (1974) (holding that prisoners are 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, 418 U.S. at 564-66, 94 S.Ct at 2979. Federal habeas review of the sufficiency of the evidence is extremely limited. Due process requires only "some evidence to support the findings made in the disciplinary hearing." Superintendent, Massachusetts Correctional Institution v. Hill, 472 U.S. 445., 454, 105 S.Ct. 2768; see Smith v. Rabalais, 659 F.2d 539, 545 (5th Cir. 1981) (requiring the court to determine whether "any evidence at all" supports disciplinary action taken by prison officials), cert. denied, 455 U.S. 992, 102 S.Ct. 1619 (1982).
The Court initially observes that Petitioner's commissary and recreation restrictions, the denial of a classification promotion, and any reduction in time-earning status, do not implicate due process concerns. See Malchi, 211 F.3d at 958; Madison, 104 F.3d at 768. However, Petitioner also lost 30 days of good time credit. Because Shepherd is eligible for release to mandatory supervision, he has a constitutionally protected liberty interest sufficient to justify the consideration of his claims on the merits. Malchi, 211 F.3d at 958-59.
Shepherd claims that he is eligible for mandatory supervised release. Petitioner's Answer to the Court's Question No. 3.
Petitioner first claims that he was denied a fair and justifiable hearing. Petition ¶ 20. A. This allegation is without merit. Although he was given the opportunity to explain how and why he was denied a fair hearing, Shepherd failed to offer any facts in support of this claim. See Petitioner's Answer to the Court's Question No. 5. He does not identify any deficiency in the hearing and he does not indicate what sort of due process he should have been afforded. Petitioner's conclusory allegation that he was denied a fair hearing fails to state a ground upon which habeas relief may be granted. See Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983) (emphasizing that mere conclusory allegations do not raise constitutional issues in habeas proceedings).
Next, Shepherd claims that there was insufficient evidence to support the finding that he attempted to establish an inappropriate relationship with a female staff member. Petition ¶ 20.A. Again, Petitioner has failed to provide the Court with any factual support for this allegation. In fact, Petitioner concedes that he wrote a letter to the female staff member which he felt "may have caused some distressful feelings to her." Petitioner's Answer to the Court's Question No. 5. Thereafter, Shepherd states that he wrote "a letter of explanation and apology . . ., [using] words of complement and comfort to a female doctor." Id. Shepherd states that he wrote the original letter "in a hostile manner" because of a two-week delay in receiving his flouride prescription. Id. Here, Shepherd's own statements to this Court reveal that there was some evidence to support the finding of guilt. Therefore, this ground for relief is without merit
In his next ground for relief, Shepherd claims that the disciplinary action should he reversed because he was only 15 days away from a classification promotion which would have resulted in parole eligibility. Petition ¶ 20.B. He argues that, in light of his letter of apology to the female doctor, the disciplinary hearing officer should have been more understanding and lenient in assessing his punishment. Plaintiff's Answer to the Court's Question No. 5. While this may have been a prudent argument before the disciplinary hearing officer, it does not present any issue of constitutional magnitude.
In his sixth ground for habeas relief, Petitioner claims that the disciplinary action is void because the complaining victim (Ms. Cook) did not write the offense report. Petition ¶ 20. C Unfortunately, there is no constitutional or any other federal requirement that mandates the writing of a prison disciplinary offense report by the complainant.
Finally, Shepherd claims that he was denied effective assistance of counsel during the disciplinary proceeding. He claims that counsel substitute presented "no defense at all" and that he failed to ask questions on behalf of Petitioner. Petition ¶ 20.D; Petitioner's Answer to the Court's Question No. 5. Shepherd states that the only thing counsel presented on his behalf was a statement indicating that Shepherd had been free of any disciplinary actions for at least 180 days. Petitioner's Answer to the Court's Question No. 5. For the following reasons, this claim must fail.
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 (1976); see also Blankenskip v. Johnson, 118 F.3d 312, 316 (5th Cir 1997) (claim of ineffective assistance of counsel must be predicated on underlying right to the assistance of counsel). Second, Petitioner has failed to articulate specifically how substitute counsel's performance was deficient. He has not identified any evidence or arguments that counsel should have presented on his behalf. He has not identified any witnesses counsel should have called and he has not proffered the testimony of any missing witnesses. As a result, he cannot show prejudice resulting from the alleged deficient performance of counsel substitute. See Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994) (court cannot analyze ineffective assistance of counsel claim without affirmative showing of missing evidence or testimony). This ground for relief is without merit and is denied.
Shepherd has failed to show that the disciplinary action taken against him was constitutionally infirm. He does not claim that he did not receive proper written notice of the charge against him. He does not allege an inability to call witnesses and present documentary evidence and he makes no claim that he did not receive a written statement from the hearing officer as to the evidence relied on and the reasons for the disciplinary action taken. Because there clearly was some evidence to support the finding of guilt, it is readily apparent that Shepherd was afforded all of the due process to which he was entitled.
IT IS THEREFORE ORDERED that the petition for writ of habeas corpus is hereby DENIED.
A copy of this order shall be transmitted to Petitioner.