Opinion
2:00-CV-0031
November 15, 2002
REPORT AND RECOMMENDATION TO GRANT 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 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, ROBERT AHAS BOYD, 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 petitioner presents his constitutional challenges to the federal court directly following the prison adjudication. 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 the court would not entertain claims concerning alleged violations of prison disciplinary procedures, even in a case resulting in loss of good time.
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, ROBERT AHAS BOYD, was charged in disciplinary case number 990059158 with the offense of possession of marijuana. Following a disciplinary hearing, petitioner was found guilty of the disciplinary infraction and assessed a punishment which included forfeiture of three hundred sixty-five (365) days accrued good time. As petitioner is eligible for mandatory release, and because 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 guilty in the disciplinary proceeding, petitioner filed a Step 1 grievance which was denied on December 22, 1998. Petitioner then filed a Step 2 grievance which was denied on January 27, 1999.
II. PETITIONER'S ALLEGATIONS
Petitioner contends his Fourteenth Amendment due process rights were violated during the disciplinary proceeding as a result of:
1. The failure of TDCJ to follow its own promulgated policies and procedures governing disciplinary hearings because there was no valid documentation demonstrating the chain of custody of the marijuana;
2. The lack of evidence sufficient to support the disciplinary hearing officer's finding that Boyd "was actually in possession of marijuana" discovered in a co-worker's locker; and
3. The lack of sufficient notice of the charge against him.
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 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) 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.It is the law of the Fifth Circuit, however, 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). Moreover, a finding of guilt requires only the support of some facts, or any evidence at all to support the action taken by prison officials. Superintendent v. Hill, 472 U.S. 445, 455 (1985); Gibbs v. King, 779 F.2d 1040, 1044 (5th Cir. 1986).
In this case, the disciplinary records reflect petitioner received four (4) days' notice of the disciplinary charge against him, that he was represented by counsel substitute, and that he had an opportunity to call and question witnesses. The hearing officer entered written findings in support of the finding of guilt, i.e., referencing petitioner's admission of having access to the locker in which the marijuana was found and the offense report signed by the charging officer. The hearing officer set forth the reasons for the assessment of the punishment.
In Broussard v. Johnson, 253 F.3d 874 (5th Cir. 2001), the Fifth Circuit affirmed the district court's findings that the mere fact that bolt cutters were found in an area in which an inmate worked, but to which approximately one hundred inmates had access, was insufficient to satisfy the due process requirement of "some evidence" to support prison disciplinary charge of possession of contraband intended for use in an escape.
Here, it appears that only two inmates, rather than one hundred plus, had access to the craftshop locker in which the marijuana was found. The question is whether that distinction is sufficient to constitute "some evidence," and distinguish this case from Broussard. In making such determination, the Court has considered the following:
1. The locker where the marijuana was found was assigned to another inmate, Fredrico Lopez;
2. Lopez was also charged with possession of marijuana and found guilty in a separate disciplinary case;
3. The locking device on the locker in which the marijuana was found belonged to Lopez and Boyd did not possess a key to the locker (there is a reference in some of the disciplinary case paperwork about petitioner Boyd having a key or access to a key, but such is not mentioned by the hearing officer in his findings);
4. The marijuana found was wrapped in paper and was not in plain sight; and
5. Boyd underwent a urinalysis for the presence of marijuana and the test result was negative.
The only evidence linking Boyd to the marijuana and the only finding made by the hearing officer was the fact it was found in a locker to which he had access but which was assigned to another inmate. Clearly, this evidence would be insufficient in a true criminal proceeding. Mere presence and/or access to contraband, standing alone, is not sufficient to support a conviction. See United States v. Stephenson, 474 F.2d 1353 (5th Cir. 1973).
While the Court recognizes the standard in a disciplinary hearing is much less than in a criminal prosecution, still, "some" evidence must be present. The only distinction between this case and Broussard is that here two individuals had access to the locker rather than over one hundred inmates. The differences between this case and Broussard are not sufficient to distinguish this case so as to allow the disciplinary adjudication to stand. An inmate should not be held responsible for contraband found in an area to which he merely has access unless there is other evidence linking him to the contraband. Since there was no evidence or other affirmative links, either directly or circumstantially, in this case, then it is the opinion of the undersigned that the disciplinary adjudication against petitioner Boyd must be set aside.
The undersigned concludes that mere access alone, even in a disciplinary hearing, is not sufficient to satisfy even the "some evidence" standard of Superintendent v. Hill, supra. Based upon this finding, it is not necessary to address the remainder of petitioner's alleged due process rights violations.
IV. RECOMMENDATION
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 ROBERT AHAS BOYD should be GRANTED, and that the Texas Department of Criminal Justice, Institutional Division, shall vacate the finding of guilt, expunge the records as to Disciplinary Case No. 990059158, and restore Petitioner's time earning status and 365 days of good time credit.
V. NOTICE OF RIGHT TO OBJECT and INSTRUCTIONS FOR SERVICE
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 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).