Opinion
Civil Action No. 4:04CV-00041-JHM.
May 5, 2005
FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDATION
BACKGROUND
Petitioner filed, pro se, a document entitled "Petition for Writ of Habeas Corpus Pursuant to Title 28 § 2241, and/or Petition for Declaratory Judgment Pursuant to Title 28 § 2201" ("petition") (DN 1). The respondents identified in the petition are the warden, Patti Webb; disciplinary hearing officer, Robert Jenkins; program director, Julie Weber; and Liggett Morris, who placed petitioner in segregation after "assessing the situation" (DN 1 at 2-3). The district court referred the matter to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B) (DN 6).
The respondents filed an answer to the document (DN 19). Additionally, the respondents moved to dismiss or, alternatively, moved for summary judgment (DN 20). Notably, petitioner has not filed an objection to these dispositive motions. The undersigned concludes this matter is now ripe for determination.
Petitioner did file objections to the respondents' motion for an extension of time in which to file an answer or other response and to respondents' motion to submit for in camera review confidential information used in the prison disciplinary proceedings (DN 13, 14, 18, 22).
FINDINGS OF FACT
During the relevant time frame petitioner, Larry E. Watkins ("Watkins"), was an inmate at the Green River Correctional Complex ("Green River") (DN 20, Exhibit J). On February 4, 2001, Watkins and another inmate apparently organized a meeting with other inmates to discuss proposed legislation to abolish the parole board (DN 20, Exhibit J at 1-2). This initial gathering was canceled after Green River staff advised the inmates their meeting was not authorized (DN 20, Exhibit J at 2).The following day Watkins participated in organizing a gathering with other inmates in the prison gym to discuss the proposed legislation to abolish the parole board (DN 20, Exhibit J at 2). Prison staff observed the situation in the gym for a period of time before they removed Watkins and another inmate from the gym and took steps to initiate a disciplinary write up (DN 20, Exhibit J at 2). Watkins denied that he organized any gathering or engaged in any wrongdoing on February 5, 2001 (DN 20, Exhibit J at 2).
The disciplinary investigation that followed included collection of confidential information from other inmates and statements from Green River staff who were involved in the incident (DN 20, Exhibit J at 2). Following a hearing, Watkins was found to be guilty of inciting to riot (DN 20, Exhibit J at 2). Watkins was assessed a penalty of ninety days in segregation and he lost 180 days of good time credit (DN 20, Exhibit J at 2). Watkins' appeals to the Warden and the Commissioner of Corrections were denied (DN 20, Exhibit J at 2).
Watkins subsequently filed a petition for declaration of rights in the Muhlenberg Circuit Court (DN 20, Exhibits E and J). In his State petition for declaration of rights Watkins named as respondents, Patti Webb, Robert Jenkins, Julie Weber, and Liggett Morris (DN 20, Exhibit E). These are the same persons that Watkins has named as respondents in this action (DN 1). The respondents moved to dismiss (DN 20, Exhibit F). In an order entered April 2, 2002, the circuit judge made the following findings:
"Petitioner was afforded due process in the context of a disciplinary proceeding required under Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 49 L.Ed.2d 935 (1994). There is `some evidence' in the record to support the decisions arrived at by the prison disciplinary body. Smith v. O'Dea, Ky.App., 839 S.W.2d 353 (1997). The reporting employee, Lt. Wilson, sufficiently verified the events in compliance with CPP 15.6 VI. C.1.a. Further, the adjustment officer did not participate as an investigating officer in violation of Corrections' policy."
(DN 20, Exhibit G). For the above reasons the circuit judge sustained respondents' motion to dismiss (DN 20, Exhibit G).
Watkins timely appealed the unfavorable ruling of the Muhlenberg Circuit Judge. In an opinion rendered March 14, 2003, the Kentucky Court of Appeals affirmed the order of the Muhlenberg Circuit Court (DN 20, Exhibit J). The opinion of the Kentucky Court of Appeals addresses the two arguments Watkins raised on appeal (DN 20, Exhibit J).
The appellate court addressed first Watkins' argument that the trial court erred by failing to find the disciplinary hearing officer, Lt. Jenkins, also participated in the investigation, thereby violating the policies and procedures (CPP) of the Kentucky Department of Corrections (DN 20, Exhibit J). At issue was the memorandum Lt. Jenkins sent to Watkins about confidential information obtained from other inmates that would be used against Watkins during the scheduled hearing (DN 20, Exhibit J at 3-4). The Kentucky Court of Appeals concluded the memorandum merely summarized the results of a confidential investigation conducted by Officer Bailey, it did not set forth the results of an independent investigation by Lt. Jenkins (DN 20, Exhibit J at 3-4). The Court of Appeals also concluded since the remainder of the record contained nothing to suggest that Lt. Jenkins "otherwise conducted any type of independent prehearing investigation, it is clear that appellant is not entitled to relief on this ground" (DN 20, Exhibit J at 4).
Next, the Kentucky Court of Appeals addressed Watkins' contention that the trial court erred by finding the evidence was sufficient to support the decision of the prison disciplinary body (DN 20, Exhibit J at 4-5). The appellate court acknowledged Watkins' assertion that each disciplinary hearing witness responded in the negative to a series of ten questions regarding the alleged offense (DN 20, Exhibit J at 5). However, the Kentucky Court of Appeals indicated it was unable to review the alleged testimony because Watkins failed to make a transcript of the hearing available to the Court on appeal (DN 20, Exhibit J at 5). The appellate court then observed even if the witnesses testified as Watkins alleged, the reports of the confidential informant and the officers "clearly met the standard of providing `some' evidence to support the disciplinary charge against appellant" (DN 20, Exhibit J at 5). Therefore, the appellate court concluded Watkins was not entitled to relief on that ground (DN 20, Exhibit J at 5).
Notably, Watkins did not timely file a motion requesting discretionary review by the Supreme Court of Kentucky. Watkins did file a motion for belated appeal and/or discretionary review over eight months after the Kentucky Court of Appeals rendered its opinion (DN 20, Exhibit K). The Supreme Court of Kentucky denied the motion in an order entered February 10, 2004 (DN 20, Exhibit L).
Watkins filed his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 and/or petition for declaratory judgment pursuant to 28 U.S.C. § 2201 on April 15, 2004 (DN 1). In his petition, Watkins sets forth two grounds for relief (DN 1 at 6-15). In Ground 1 he argues the disciplinary hearing officer, Lt. Jenkins, participated in the investigation, thereby violating his procedural due process and due process rights as guaranteed byWolff v. McDonnell, 418 U.S. 539 (1974), and Hensley v. Wilson, 850 F.2d 269 (6th Cir. 1988) under the Fourteenth Amendment to the United States Constitution (DN 1 at 6-7). In Ground 2 Watkins argues his due process and equal protection rights were violated when he was found guilty of inciting to riot without any evidence to support the verdict of guilty and the punishment imposed (DN 1 at 10).
CONCLUSIONS OF LAW
Respondents contend the petition is not properly filed as one under 28 U.S.C. § 2241 (DN 20 at 2). Respondents argue the Court should deny Watkins the relief he requests on the basis he is proceeding pursuant to an inappropriate statute or, alternatively, construe this petition as one brought pursuant to 28 U.S.C. § 2254 (DN 20). Respondents argue § 2254 is the appropriate vehicle for a State prisoner, such as Watkins, who seeks to contest the loss of good time credits as a result of prison disciplinary proceedings (DN 20). See Greene v. Tennessee, Department of Corrections, 265 F.3d 369, 371 (6th Cir. 2001). Notably, Watkins has not responded to this argument.
After carefully reviewing the case law, the undersigned concludes since Watkins is serving time pursuant to a State court judgment of conviction, § 2254 is the correct vehicle for Watkins to contest the loss of good time credit and the imposition of segregation as a result of the prison disciplinary proceedings at Green River. Greene, 265 F.3d at 371. Thus, regardless of whether Watkins labels his petition as one brought pursuant to 28 U.S.C. § 2241 or 28 U.S.C. § 2201, his petition is governed by the requirements of § 2254.Id. at 371-372.
Respondents contend Watkins procedurally defaulted both issues in his petition because he failed to timely file a motion for discretionary review with the Supreme Court of Kentucky (DN 20). Respondents argue federal habeas review is barred due to this procedural default in the State courts (DN 20). Notably, Watkins has not responded to this argument.
Rule 76.20(2)(b) of the Kentucky Rules of Civil Procedure in relevant part directs "[a] motion for discretionary review by the Supreme Court of a Court of Appeals decision shall be filed within 30 days after the date of the order or opinion sought to be reviewed unless . . . an extension of time has been granted . . ." Rule 76.20(2)(c) reads "[t]he failure of a party to file a Motion for Discretionary Review within the time specified in this Rule, or as extended by a previous order, shall result in a dismissal of the Motion for Discretionary Review." Additionally, referring to Rule 76.20(2)(c) the Supreme Court of Kentucky commented "the time for invoking the court's jurisdiction by filing a motion for discretionary review may be extended before it expires, but the time may not be enlarged after it expires."AK Steel Corp. v. Carico, 122 S.W.3d 585, 585-586 (Ky. 2003).
On March 14, 2003, the Kentucky Court of Appeals affirmed the Muhlenberg Circuit Court order denying Watkins' petition for declaration of rights (DN 20, Exhibit J). Watkins did not file a motion for discretionary review within the 30 day time limit specified in Rule 76.20(2)(b). Nor did he seek an extension of that time limit before it expired. Thus, by the time Watkins filed his motion for belated appeal and/or discretionary review (DN 20, Exhibit K) he was already procedurally barred from seeking discretionary review. Ky.R.Civ.P. 76.20(2)(c); AK Steel Corp., 122 S.W.3d at 586. The Supreme Court of Kentucky construed Watkins' motion as a "belated motion for enlargement of time in which to file a motion for discretionary review" and denied his motion (DN 20, Exhibit L). In sum, Watkins failed to comply with a State procedural rule and that failure provided an adequate and independent ground for the State's denial of relief.
If a habeas petitioner fails to comply with a State procedural rule and that failure provides an adequate and independent grounds for the State's denial of relief, then federal review is barred absent a showing of "cause" and "prejudice." Harris v. Reed, 489 U.S. 255 (1989); Murray v. Carrier, 477 U.S. 478 (1986); Wainwright v. Sykes, 433 U.S. 72, 78-79 (1977). To establish "cause" the petitioner must demonstrate that something external to him impeded his efforts to comply with the State's procedural rule. Coleman v. Thompson, 501 U.S. 722 (1991). Here, Watkins has made no effort to demonstrate "cause." Notwithstanding, the undersigned has reviewed the record, including the argument he made in support of his motion for belated appeal and/or discretionary review (DN 20, Exhibit K). From his argument the undersigned concludes he did not timely receive a copy of the Kentucky Court of Appeals opinion because he failed to notify the appellate court of his changes of address (DN 20, Exhibit K at 2-3). Thus, it was Watkins' own omission, rather than something external to him, that impeded his efforts to comply with the State's procedural rule. Since he cannot establish "cause" there is no need to determine whether he can satisfy the "prejudice" requirement. In sum, federal review of Watkins' claims are barred because his failure to comply with a State procedural rule provides an adequate and independent ground for the State's denial of relief and he has not made a showing of "cause" and "prejudice."
The Supreme Court has established a two-prong test that is used to determine whether a Certificate of Appealability should issue on a habeas claim denied on procedural grounds. Slack v. McDaniel, 529 U.S. 473, 484-485 (2000). To satisfy the first prong of the Slack test, Watkins must demonstrate "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a Constitutional right." Id. at 484. To satisfy the second prong, Watkins must show "jurists of reason would find it debatable whether the district court was correct in its procedural ruling."Id. Notably, the Court need not conduct the two pronged inquiry in the order identified or even address both parts if Watkins makes an insufficient showing on one part. Id. at 485. For example, if the Court determines Watkins failed to satisfy the procedural prong then it need not determine whether the Constitutional prong is satisfied. Id.
Here, a plain procedural bar is present as to both claims set forth in the habeas petition. Thus, jurists of reason would not find it debatable whether federal review is barred and these claims should be disposed of on that basis. For this reason, the undersigned does not recommend granting a Certificate of Appealability as to both claims asserted in the petition.
RECOMMENDATION
For the foregoing reasons, it is recommended that Watkins' petition for writ of habeas corpus be DISMISSED with prejudice and a Certificate of Appealability be DENIED.