Opinion
CIVIL ACTION NO. 5:02-CV-106-C
August 1, 2003
ORDER
Petitioner Margarito Valenzuela, Jr. filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 challenging his conviction and punishment in a prison disciplinary case. See Preiser v. Rodriguez, 411 U.S. 475, 477 (1973) (stating that § 2254 provides a specific remedy for prison inmates challenging the results of specific prison disciplinary hearings if the inmates do not seek monetary damages). Respondent Janie Cockrell has filed an Answer with Brief in Support, a copy of Petitioner's relevant disciplinary records, and a copy of the disciplinary hearing audiotape recording. Petitioner filed a response and objections.
The Respondent has lawful and valid custody of Petitioner pursuant to three judgments and sentences from the 218th Judicial District Court of Frio County, Texas, in Cause Nos. 90-08-OOO92CRF, 90-02-OO08CRF, and 90-02-OOO1OCRF. In these cause numbers, Petitioner pleaded guilty to the felony offenses of burglary of habitation, burglary of a building, and burglary of a vehicle, and on September 5, 1990, he was sentenced to forty (40) years' imprisonment in the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID") for the burglary of a habitation, ten (10) years' imprisonment for two counts of burglary of building, and ten (10) years' imprisonment for two counts of burglary of a vehicle.
Petitioner does not challenge the validity of his original convictions and sentences; rather, he challenges prison disciplinary proceeding number 20010289035, in which he was charged with fighting or assaulting another inmate without a weapon while incarcerated in the TDCJ-ID Ramsey I Unit. After a hearing on June 25, 2001, Petitioner was found guilty of the charge and punishment was assessed at a 30-day restriction on commissary and recreation privileges, a reduction in line class status, a removal of 30 days of good time credit, and 15 days in solitary confinement. Petitioner appealed the finding of guilt through the TDCJ-ID administrative grievance procedure, but the step I was returned unprocessed because he failed to comply with the TDCJ-ID rules. Petitioner also filed another step 1 grievance and a step 2 grievance, but both of these grievances were also returned unprocessed for failure to comply with the TDCJ grievance filing procedures.
Pursuant to 28 U.S.C. § 2241(d), Petitioner should have filed his habeas application in either the federal judicial district where he was incarcerated or the federal judicial district where his original conviction and sentence took place. Wadsworth v. Johnson, 235 F.3d 959, 961 (5th Cir. 2000). This Court has jurisdiction to consider the instant petition because Petitioner was incarcerated in the TDCJ-ID Preston Smith Unit in Laniesa, Texas, when he filed the petition.
Petitioner claims that he was denied due process in the disciplinary proceeding because he was not allowed to read his pre-written statement at the hearing; the hearing officer was biased and openly hostile" during the hearing; he was deprived of his right to cross-examine the witnesses; he was denied the right to call two witnesses; there was insufficient evidence to support the finding of guilt; and the disciplinary hearing officer failed to state specifically which part of the charging officer's report or testimony that he relied on to determine Petitioner's guilt. Respondent argues that
Petitioner has failed to exhaust the prison administrative remedies, and alternatively, that Petitioner has failed to demonstrate that he was denied due process during the disciplinary proceedings.
Although a petitioner is required to exhaust his administrative remedies before he pursues federal habeas relief, a court may deny a habeas petition "notwithstanding the failure of the applicant to exhaust." 28 U.S.C. § 2254(b)(2).
To the extent that Petitioner is challenging the loss of privileges and his assignment to 15 days of solitary confinement, his 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. Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000); Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997). It is well settled that the Due Process Clause does not protect every change in the conditions of confinement having a substantially adverse impact on a prisoner. Meachum v. Fano, 427 U.S. 215, 224 (1976).
The Due Process Clause protections are also not implicated by the reduction in Petitioner's line-class status. The Fifth Circuit Court of Appeals has held that "the mere opportunity to earn good time credits" does not constitute a "constitutionally cognizable liberty interest sufficient to trigger the protections of the Due Process Clause." Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995). Petitioner's custodial classification will not inevitably affect the duration of his sentence. Id.
Although Petitioner lost 30 days of good time credit, there is no inherent right to good time credit. Wolff v. McDonnell, 418 U.S. 539, 557 (1974). Nevertheless, when a state creates a right to good time credits and the revocation of good time credits is an authorized sanction for misconduct, the prisoner's interest in those credits is "embraced within the Fourteenth Amendment `liberty' concerns so as to entitle him to those minimum procedures appropriate under the circumstances and required by the due process clause to insure that this state created right is not arbitrarily abrogated." Madison v. Parker, 104 F.3d at 768.
Texas law provides that good time credits only affect eligibility for release on parole or mandatory supervision. Tex. Gov't Code Ann. § 498.003 (Vernon Supp. 1998). See Ex parte Morris, 626 S.W.2d 754, 757 (Tex.Crim.App. 1982) (holding that good time credits, whether designated good time or work time, do not become vested). Prisoners in Texas possess no constitutionally protected right to release on parole. Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995). There is, however, "a constitutional expectancy of early release created by Texas's mandatory supervision scheme in place prior to September 1, 1996 for earned good time credits." Malchi v. Thaler, 211 F.3d 953, 957-958 (5th Cir. 2000). Thus, "[a]s a general rule, only sanctions which result in a loss of good conduct time for [Texas] inmates who are eligible for release on mandatory supervision or which otherwise directly or adversely affect release on mandatory supervision will impose upon a liberty interest." Spicer v. Collins, 9 F. Supp.2d 673, 685 (E.D. Tex. 1998) (citing Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995)).
In Wolff, the Supreme Court was reluctant to review the judgment of prison administrators and acknowledged that prison disciplinary proceedings do not require the "full panoply of rights" due a defendant in a criminal proceeding. The Supreme Court then set forth the minimum requirements of procedural due process which are to be accorded prisoners in the disciplinary hearing process. Due process considerations require the following:
1. advance written notice of the claimed violation;
2. a written statement of the factfinder as to the evidence relied on and the reason(s) for the disciplinary action taken; and
3. an opportunity to call witnesses and present documentary evidence in defense, when to do so would not be unduly hazardous to institutional safety or correctional goals.
Wolff v. McDonnell, 418 U.S. at 564-66.
The Court has reviewed the records provided by Respondent in disciplinary proceeding no. 20010289035 and has listened to the audiotape recording of the hearing. The records clearly establish that Petitioner was given advance written notice of the charges against him, he was appointed counsel substitute to assist him, and he was advised of his right to call witnesses and to present documentary evidence. Petitioner appeared at the disciplinary hearing on June 25, 2001, along with his counsel substitute. Petitioner made a statement at the hearing and his counsel substitute read from a written statement that Petitioner had prepared prior to the hearing. The disciplinary hearing officer read the offense report and the charging officer was called to testify' at the hearing. Although Petitioner states that he was not allowed to question the charging officer, the audiotape from the disciplinary hearing clearly shows that substitute counsel was allowed to question the charging officer. The disciplinary records also contain a written statement from the disciplinary hearing officer selling forth the evidence relied upon in reaching his decision and the reasons for assessing punishment.
Petitioner first complains that he was denied due process because he was not allowed to read his written statement at the hearing. This complaint is frivolous. The record shows that Petitioner was allowed to make an oral statement at the disciplinary hearing and his substitute counsel was allowed to read either all or a portion of the statement that Petitioner had prepared before the hearing. Petitioner does not allege that he was not allowed to present a defense or that the hearing officer's refusal to allow Petitioner himself to read the statement prejudiced his defense.
Petitioner next complains that the hearing officer was biased and "openly hostile" during the disciplinary hearing. The Court has reviewed the audiotape recording of the disciplinary hearing and finds that there is no evidence that the disciplinary hearing officer was biased. Although the Court does not condone the hearing officer's decision to address Petitioner in a less than courteous manner, there is no evidence that the hearing officer was predisposed to finding Petitioner guilty or that the officer's finding of guilt was based on less than constitutionally sufficient evidence.
Petitioner also complains that he was denied the right to call two TDCJ-ID officers as witnesses and he was not allowed to cross examine witnesses. An "inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals." Wolff v. McDonnell, 418 U.S. at 566. "The right to call witnesses, like other due process rights delineated in Wolff is thus circumscribed by the necessary "mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application.'" Baxter v. Palmigiano, 425 U.S. 308, 321 (1976) (quoting Wolff v. McDonnell 418 U.S. at 556). Although the Supreme Court has determined that due process does not require prison authorities to state the reason for refusing to call a witness at a disciplinary hearing, they have suggested that it would be "useful." Wolff v. McDonnell, 418 U.S. at 566. "The Supreme Court has recognized[, however,] that prisoners do not have a due process right to confrontation or cross examination during prison disciplinary proceedings." Broussard v. Johnson, 253 F.3d 874, 876 (5th Cir. 2001). See Baxter v. Palmigiano, 425 U.S. 308, 322-323 n. 5 (1976) (noting that there is no constitutional right to confrontation and cross examination in a prison disciplinary proceeding).
Petitioner contends that he asked to call Sergeants Torrez and Hodges to testify at the disciplinary hearing because
1. Sergeant Hodges was the person who escorted Petitioner to the infirmary after the alleged fight and he could testify that Petitioner had no blood stains on his clothes, no injuries on his hands or body, and no evidence that he had been fighting.
2. Sergeant Torrez examined Petitioner on the day of the alleged assault and could testify that Petitioner had no injuries on his person, other than the scratch on the side of his face, and he could also testify that Petitioner had been outside on recreation prior to the alleged assault.
Petitioner alleges that this testimony would have demonstrated that he was not involved in the alleged fight or assault.
Petitioner was allowed to present his argument that he had received the scratch while playing basketball at recreation and that he was not involved in the assault or fight. He does not contend that either officer could provide him with an alibi at the time of the alleged assault or that either officer could testify to events that would have affirmatively disproved the charging officer's allegation. The hearing officer determined that the testimony of Sergeants Hodges and Torrez was not relevant to the charges. In light of the fact that there was sufficient evidence to sustain the charge (as discussed below), Petitioner cannot show that he was prejudiced by the hearing officer's failure to call these two witnesses. Black v. Warren, 134 F.3d 732, 734 (5th Cir. 1998). See Banuelos v. McFarland, 41 F.3d 232, 234-235 (5th Cir. 1995) (denying petitioner's due process claim that hearing officer failed to call defense witnesses where the testimony of such witnesses would not have changed the outcome and thus petitioner did not demonstrate prejudice from the error). As for his complaint that he was not allowed to confront the charging officer, the hearing clearly shows that his counsel substitute was allowed to question the officer.
Petitioner finally complains that there was insufficient evidence to support the finding of guilt and the hearing officer failed to specifically describe which parts of the charging officer's report and testimony were relied on to reach the finding of guilt. "[D]ue process require[s], at a minimum, that there be "some evidence' in the record to support the disciplinary decision." Broussard v. Johnson, 253 F.3d at 876. The Supreme Court has determined that
[a]scertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.
Superintendent, Mass. Correctional Inst., Walpole v. Hill, 472 U.S. 445, 455 (1985) (emphasis added). See Smith v. Rabalais, 659 F.2d 539, 545 (5th Cir. Unit A 1981) (quoting Willis v. Ciccone, 506 F.2d 1011, 1018, 1019 n. 11 (8th Cir. 1974) ("No de novo review of the disciplinary board's factual finding is required, but the courts must consider whether at least the decision is supported by `some facts' — `whether any evidence at all' supports the action taken by the prison officials."). "Determining the believability of the testimonies presented at the hearing is left to the discretion of the hearing officer." Hudson v. Johnson, 242 F.3d 534, 536-537 (5th Cir. 2001). The information provided in a written incident report standing alone can satisfy the "some evidence" standard. Id. at 537. "Prison disciplinary proceedings are overturned only where no evidence in the record supports the decision." Broussard v. Johnson, 253 F.3d at 877.
The prison records show that the charging officer stated in his Offense Report that on June 18, 2001, at about 2:30 p.m.,
it had come to [his] knowledge a fight had occurred at 2W112 cell between offenders Perez . . . and Valenzuela TDCJ # 572088. I D.W. Coleman contained the incident by having said offender Perez escorted off the cell block and alerted the 1 and 2 door officer (turn key) to notify a supervisor. Ready staff arrived at which time restraints were applied to both offenders (Perez and Valenzuela).
NOTE: Offender Valenzuela recieved [sic] lacerations to the neck[,] face[,] and head. I D.W. Coleman C03 did not witness the fight however [I] was able to determine the assault due to type of injuries.
At the disciplinary hearing, the charging officer testified that on June 18, 2001, inmate Perez approached him and told him that he had been in a fight with Petitioner. Although the charging officer did not see the fight, he and Sergeant Hodges observed scratches on Petitioner's face and neck. The charging officer acknowledged that he did not check Petitioner's hands for injuries and he did not know whether Petitioner had been on the recreation yard prior to this incident. The charging officer recalled that Petitioner did not have a shirt on and only had on the prison issued boxer shorts. When the hearing officer asked Petitioner if he had reported the scratches on his face and neck to prison authorities, Petitioner acknowledged that he had not. The hearing officer also allowed counsel substitute to read a statement from another inmate stating that Petitioner had received the scratches while playing basketball.
Although there was a minimal amount of evidence to support the finding of guilt, there was some evidence" to support the hearing officer's finding of guilt. Moreover, the hearing officer was entitled to determine the credibility of the witnesses and to wholly discredit Petitioner's defense and credit the charging officer's allegations. As for Petitioner's complaint that the hearing officer did not specifically point to which parts of the offense report and testimony that he relied on to find Petitioner guilty, the Court finds that the complaint is frivolous.
For the reasons stated above, the Court finds that Petitioner has failed to demonstrate that he was denied due process in disciplinary proceeding no. 20010289035 and his Petition for Writ of Habeas Corpus by a Person in State Custody should be denied and dismissed with prejudice.
SO ORDERED.
All relief not expressly granted is denied and any pending motions are denied.