Opinion
No. 3-04-CV-0646-D.
July 13, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Michael Cuevas, 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 21-year sentence for burglary of a habitation. While incarcerated at the Ellis Unit of the TDCJ-ID, petitioner was convicted of refusing to obey orders, a Level 2, Code 24 disciplinary infraction. Although the hearing officer initially ordered that petitioner forfeit 30 days of good time credit, his punishment was subsequently modified to a reduction in line classification from S2 to S4. Petitioner challenged the results of his disciplinary hearing through the prison grievance process. His grievances were denied. Petitioner then filed this action in federal court.
II.
Petitioner raises two broad issues in four grounds for relief. Succinctly stated, petitioner contends that: (1) he received ineffective assistance of substitute counsel; and (2) his due process rights were violated at the disciplinary hearing and during the prison grievance process.
A.
The due process rights of prisoners are generally limited to freedom of restraint which "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995). Restrictions which merely alter the conditions of confinement do not implicate due process. See Anderson v. Cockrell, 2002 WL 742430 at *3 (N.D. Tex. Apr. 9, 2002), citing Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000) (reduction in good time earning status). Although a prisoner has a protected liberty interest in the loss of accrued good time if he is eligible for release to mandatory supervision, petitioner did not forfeit any good time credit as a result of his disciplinary conviction. The only punishment assessed was a reduction in line classification from S2 to S4. Thus, there is no liberty interest protected by the due process clause. See id.
B.
Even if petitioner were able to establish a constitutionally protected liberty interest, he still would not be entitled to federal habeas relief. The minimum requirements of due process at a prison disciplinary hearing 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. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 2978-79, 41 L.Ed.2d 935 (1974). In this case, petitioner received notice of a disciplinary infraction on April 18, 2003. (Resp. Ans., Exh. B at 3-6). A hearing was held on April 24, 2003, at which time petitioner was given the opportunity to call witnesses and present other evidence. ( Id. at 7). At the conclusion of the hearing, petitioner was found guilty of refusing to obey orders. ( Id.). The hearing officer issued a written report detailing the evidence relied on and the reasons for the disciplinary action taken against petitioner. ( Id.). Although petitioner may disagree with the hearing decision, he has failed to establish a due process violation.C.
Finally, petitioner complains that he received inadequate legal representation at the disciplinary hearing because his "counsel substitute" did not insist on a retrial before the hearing officer modified his decision on punishment. 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). Second, petitioner has not shown how he was prejudiced by this alleged error. Petitioner originally lost 30 days of good time credit for refusing to obey orders. However, the hearing officer subsequently modified this punishment to reflect only a reduction in line classification. It is difficult to envision how petitioner was harmed by this less severe punishment.
To the extent petitioner seek relief for his retaliatory transfer to another prison unit, such a claim must be brought in a civil rights action under 42 U.S.C. § 1983. See Carson v. Johnson, 112 F.3d 818, 820 (5th Cir. 1987) (section 1983 is proper vehicle to challenge unconstitutional conditions of confinement and prison procedures).
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.