Opinion
2:99-CV-0371
April 8, 2002
REPORT AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS
This habeas corpus petition, filed pursuant 28 U.S.C. § 2254, does not challenge the legality of the conviction and sentence which petitioner is serving, but instead, challenges an adjudication of guilt as a result of a prison disciplinary charge and hearing, and the resultant forfeiture of 60 days good time credits. The petitioner, Arnulfo Flores Vargas, appealed the disciplinary adjudication within the prison grievance process by filing both a Step 1 and a Step 2 grievance. No state court has heard petitioner's challenges, and petitioner presents his constitutional challenges directly to the federal court. The Texas Court of Criminal Appeals has declared that, with respect to the refusal to award good time credit based on inmate classification or disciplinary procedures, it will assume that whatever determination of such matters is made by the director of the Texas Department of Criminal Justice, was made in accordance with his authority as well as in accordance with due process and due course of law. Ex Parte Palomo, 759 S.W.2d 671 (Tex.Crim.App. 1988). Further, in Ex Parte Brager, 704 S.W.2d 46 (Tex.Crim.App. 1986), the Court of Criminal Appeals held they would not entertain claims concerning alleged violations of prison disciplinary procedures, even in a case resulting in loss of good time.
Since this case comes to the federal court without any prior state court review, the provisions of the AEDPA providing for deference to prior state court adjudications appear to be inapplicable.
I. PROCEEDINGS
Petitioner, Arnulfo Flores Vargas was charged in disciplinary case number 1999036864 with the offense of possession of a tobacco product. Following a disciplinary hearing, petitioner was found guilty of the disciplinary infraction and assessed a punishment which included forfeiture of sixty (60) days accrued good time. Since petitioner was convicted of the offense of burglary, he is eligible for mandatory release, and since his conviction 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 finding of guilt in the disciplinary proceeding, petitioner filed, on August 25, 1999, a Step 1 grievance which was denied on October 4, 1999. Petitioner then filed, on October 8, 1999, a Step 2 grievance which was denied on October 26, 1999.
II. PETITION'S ALLEGATIONS
Petitioner contends his Fourteenth Amendment due process rights were violated during the disciplinary proceeding as a result of:
1. insufficient evidence to support the finding of guilt;
2. TDCJ officials' failure to investigate the facts of his case; and
3. TDCJ officials' filing of a false disciplinary report.
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 disciplinary proceedings are not part of the criminal prosecution process and, therefore, the full panoply of rights does not apply. The Court did hold, however, that certain minimal due process provisions are required. They 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.
In the Fifth Circuit, the findings of a 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, 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).
In this case, the disciplinary records reflect petitioner received ten (10) days notice of the disciplinary charge against him, that he was represented by counsel substitute, and that he had an opportunity to call witnesses if he had chosen to do so. The hearing officer supported his finding of guilt, indicating such finding was based upon the telephone testimony of the officer and the officer's report. The hearing officer set forth the reasons for the assessment of the punishment including the forfeiture of good time.
Petitioner's allegations that the officer falsified the report are without merit. The hearing officer was the determiner of the credibility of the witnesses and the evidence, and petitioner has presented no allegation that his due process rights were violated per Wolff v. McDonnell, supra. Likewise, petitioner's allegations that TDCJ officials failed to investigate the facts of his case and failed to submit photographs of the evidence, i.e., the tobacco product, are without merit and do not constitute due process rights violations under Wolff v. McDonell, supra. The offense report submitted by Officer K. Jones CO III reflected that he smelled tobacco from petitioner's housing assignment and began a pat search of petitioner, when petitioner reached behind his back and threw an item over the railing. Officer K. Jones retrieved the item and discovered it to be a quantity of loose tobacco, 16 rolled cigarettes, and 20 rolling papers. This report constitutes sufficient facts and evidence necessary to support a finding of guilt in the disciplinary hearing.
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 ARNULFO FLORES VARGAS is without merit and should be, in all things, DENTED.
IT IS SO RECOMMENDED.