Opinion
NO. 3-03-CV-0534-M.
July 24, 2003.
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Raymond E. Christoph, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be denied.
I.
Petitioner is serving a 25-year sentence for burglary of a habitation at the Beto I Unit of the TDCJ-ID. While incarcerated, petitioner was convicted of a disciplinary infraction. Punishment was assessed at solitary confinement for 14 days, cell restriction for 45 days, loss of commissary privileges for 45 days, loss of 30 days of good time credits, and a reduction in time-earning status from S2 to L1. Petitioner challenged the results of this hearing through the prison grievance process. His grievances were denied. Petitioner then filed this action in federal court.
Petitioner originally brought this action in the Tyler Division of the Eastern District of Texas. Christoph v. TDCJ-ID, No. 6-03-CV-25. The case was transferred to the Dallas Division of the Northern District of Texas pursuant to 28 U.S.C. § 2254(d). See ORDER, 2/18/03.
II.
In three grounds for relief, petitioner contends that: (1) the evidence was insufficient to establish a disciplinary infraction; (2) he received ineffective of counsel; and (3) he is actually innocent of the charge.A.
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, 132 L.Ed.2d 418 (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.), cert. denied, 111 S.Ct. 2809 (1991) (Texas prisoners have no protected liberty interest in early release on parole).
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 also Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974) (prisoners 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. Id., 94 S.Ct. at 2978-79. Federal habeas review of the sufficiency of the evidence to support a disciplinary conviction 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, 2773, 86 L.Ed.2d 356 (1985). See also Smith v. Rabalais, 659 F.2d 539, 545 (5th Cir. 1981) (court must determine whether "any evidence at all" supports disciplinary action taken by prison officials); Van v. Johnson, 2001 WL 741724 at *2 (N.D. Tex. May 21, 2001) (Kaplan, M.J.), rec. adopted, 2001 WL 720504 (N.D. Tex. Jun. 21, 2001).
B.
The court initially observes that placement in solitary confinement and on cell restriction, the loss of commissary privileges, and a reduction in time-earning status do not implicate due process. See Malchi, 211 F.3d at 958; Madison, 104 F.3d at 768. However, petitioner also lost 30 days of good time credit. Because petitioner is eligible for release to mandatory supervision, he has a protected liberty interest sufficient to justify the consideration of his claims on the merits. Malchi, 211 F.3d at 958-59. The court will address each claim in turn.
Respondent acknowledges that petitioner's claims must be considered on the merits "because thirty days of good time credit was taken away from Christoph and he is eligible for mandatory supervision." (Resp. Ans. at 9).
1.
Petitioner first contends that the evidence was insufficient to establish a disciplinary infraction because of inconsistencies between the offense report prepared by Officer Johnny Belcher and his testimony at the hearing. In his report, Belcher stated that he "witnessed Christoph Raymond drop money by the South Dorm Exit Door, 500 dollars, five one-hundred dollar bills." (Resp. Ans., Exh. B at 2). However, at the hearing, Belcher testified that he saw the money leave petitioner's hand. ( Id., Exh. B at 9). Even if these statements are somehow inconsistent, the fact remains that petitioner possessed a large amount of currency in violation of prison regulations. The offense report alone constitutes the evidence necessary to establish this disciplinary infraction. See Hudson v. Johnson, 242 F.3d 534, 537 (5th Cir. 2001) (incident report is "some evidence" of guilt). This ground for relief is without merit and should be overruled.
2.
Next, petitioner complains that he received inadequate legal representation at the disciplinary hearing because his "counsel substitute" did not call a material witness, failed to effectively cross-examine Officer Belcher, and made false statements that were construed by the hearing officer as an admission of guilt. This claim fails for two reasons. 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, 47 L.Ed.2d 810 (1976). See also Van, 2001 WL 741724 at *3 (citing cases). Second, petitioner has not proffered the testimony of the missing witness, identified the false statements allegedly made by his legal representative, or shown how the cross-examination of Belcher prejudiced the outcome of his case. Petitioner's conclusory assertions that he received ineffective assistance of counsel at this hearing do not merit habeas relief. See Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.), cert. denied, 121 S.Ct. 122 (2000).
Petitioner complains that counsel failed to ask Belcher if he would take a polygraph test or otherwise question his credibility. However, this subject matter was foreclosed by the hearing officer who limited questioning to the incident itself. ( See Resp. Ans., Exh. C at 2).
3.
Finally, petitioner claims that newly discovered evidence establishes his actual innocence. However, such a claim, standing alone, is insufficient to merit federal habeas relief. See Herrera v. Collins, 506 U.S. 390, 400,113 S.Ct. 853, 860, 122 L.Ed.2d 203 (1993); Dowthitt v. Johnson, 230 F.3d 733, 741 (5th Cir. 2000), cert. denied, 121 S.Ct. 1250 (2001). There also must be evidence of an independent constitutional violation in the disciplinary proceeding. Dowthitt, 230 F.3d at 741. Here, petitioner has failed to establish an underlying constitutional violation. Consequently, this ground for relief should be overruled.
Respondent correctly notes that this claim is unexhausted. Although a prisoner must ordinarily exhaust state remedies before seeking federal habeas relief, "[a]n application for writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2).
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.