Opinion
No. 5:00-CV-024-C
December 20, 2002
ORDER
Petitioner Jose Fuentes filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. Respondent Janie Cockrell filed an Answer with Brief in Support and copies of Petitioner's relevant prison records. Petitioner has filed a response.
The Respondent has lawful and valid custody of Petitioner pursuant to a judgment and sentence out of the 286th Judicial District Court of Cochran County, Texas, in cause number 93-07-995. Petitioner pleaded guilty to the felony offense of forgery and on September 30, 1993, was sentenced to fifteen years' incarceration in the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID"). He does not challenge the validity of his original conviction and sentence; rather, Petitioner challenges prison disciplinary proceeding no. 20000012225, in which he was found guilty on August 30, 1999, of assaulting an inmate without a weapon and being out of place at the TDCJ-ID Preston Smith Unit. See Preiser v. Rodriguez, 411 U.S. 475, 477 (1973) (stating that § 2254 provides a specific remedy for prison inmates challenging the results of specific prison disciplinary hearings if the inmates do not seek monetary damages). As a result of the disciplinary proceeding, Petitioner was sentenced to forty-five days of commissary and recreation restriction, a reduction in his line-class status, and the loss of 180 days of good time. Although Petitioner filed a Step-one and a Step-two grievance, both grievances were denied.
Respondent also has custody of Petitioner pursuant to two other convictions and sentences. Petitioner pleaded guilty to the felony offense of burglary of a building on October 11, 1991, in cause number 90-11-3438 in the 110th Judicial District Court of Hockley County, Texas, and was sentenced to ten years' incarceration. He pleaded guilty to the felony offense of possession of a prohibited substance in a correctional facility on February 26, 1992, in cause number 92-01-3579 in the 110th Judicial District Court of Hockley County, Texas, and was sentenced to five years' incarceration.
Petitioner was incarcerated in the TDCJ-ID Smith Unit when he filed this petition. Because the Smith Unit is located in the Lubbock Division of the Northern District of Texas, this Court has jurisdiction to consider the petition. See Wadsworth v. Johnson, 235 F.3d 959 (5th Cir. 2000) (determining that a state prisoner challenging a prison disciplinary proceeding must file his petition in either the federal judicial district where he is incarcerated or the federal judicial district where his original conviction and sentence took place).
To the extent that Petitioner is challenging the loss of commissary and recreation privileges, his claims do not present grounds for federal habeas corpus review and the Due Process Clause is not implicated by these changes in the conditions of his confinement. Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000); Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997). It is well settled that the Due Process Clause does not protect every change in the conditions of confinement having a substantially adverse impact on a prisoner. Meachurn v. Fano, 427 U.S. 215, 224 (1976).
The Due Process Clause protections are also not implicated by the reduction in Petitioner's line-class status. The Fifth Circuit has held that "the mere opportunity to earn good time credits" does not constitute a "constitutionally cognizable liberty interest sufficient to trigger the protections of the Due Process Clause." Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995), cert. denied, 517 U.S. 1196 (1996). Petitioner's custodial classification will not inevitably affect the duration of his sentence. Id.
Although Petitioner also lost a total of 180 days of good time credit, there is no inherent constitutional right to good time credit. Wolff v. McDonnell, 418 U.S. 539, 557 (1974). When a state creates a right to good time credits, however, and the revocation of such credits is an authorized sanction for misconduct, the prisoner's interest in the credits is "embraced within the Fourteenth Amendment `liberty' concerns so as to entitle him to those minimum procedures appropriate under" the Due Process Clause. Madison v. Parker, 104 F.3d at 768.
Texas law provides that good time credits only affect an inmate's eligibility for release on parole or mandatory supervision. Tex. Gov't Code Ann. § 498.003 (Vernon Supp. 1998). See Ex parte Montgomery, 894 S.W.2d 324 (Tex.Crim.App. 1995) (holding that good time credits apply only to eligibility for release to parole and mandatory supervision but do not affect the length of an inmate's sentence); Ex parte Morris, 626 S.W.2d 754, 757 (Tex.Crim.App. 1982) (holding that whether designated "good time" or "work time" credits, these credits do not become vested). Under Texas law, there is no constitutionally protected right to release on parole. Madison v. Parker, 104 F.3d at 768; Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995); Gilbertson v. Tex. Bd. of Pardons Paroles, 993 F.2d 74, 75 (5th Cir. 1993). See Greenholtz v. Inmates of Neb. Penal Corr. Complex, 442 U.S. 1, 7 (1979) ("There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence."). There is, however, "a constitutional expectancy of early release created by Texas's mandatory supervision scheme in place prior to September 1, 1996 for earned good time credits." Malchi v. Thaler, 211 F.3d at 957-58. Thus, "[a]s a general rule, only sanctions which result in loss of good conduct time for inmates who are eligible for release on mandatory supervision or which otherwise directly or adversely affect release on mandatory supervision will impose upon a liberty interest." Spicer v. Collins, 9 F. Supp.2d 673, 685 (E.D. Tex. 1998) (citing Orellana v. Kyle, 65 F.3d 29, 31-33 (5th Cir. 1995)).
According to Respondent and the TDCJ-ID records, Petitioner is eligible for release to mandatory supervision under the law prior to September 1, 1996.
The Court understands Petitioner to raise the following complaints about disciplinary case number 20000012225:
1. The "prosecution" failed to disclose evidence favorable to Petitioner's defense.
2. "It is unconstitutional for the prison officials to be the judge, jury, and . . . court."
3. He was denied the effective assistance of counsel.
4. He was denied due process in violation of the Fifth and Fourteenth Amendments because the case was false, the hearing officer failed to call a defense witness, false evidence was presented, and there was a conflict of interest.
The Court has reviewed Petitioner's pleadings and evidence, Respondent's answer and brief, and the relevant prison records, including the tape of the disciplinary hearing, and finds that Petitioner has failed to demonstrate that disciplinary case number 20000012225 should be overturned.
1. Failure to disclose favorable evidence
Construing this claim liberally, the Court understands Petitioner to complain that prison authorities violated due process because they failed to produce a copy of the UCC lay-in sheet for August 30, 1999, his prison medical records, a copy of the I-210 offense report and the investigating officer's report.
Assuming that TDCJ-ID authorities must comply with the Brady v. Maryland, 373 U.S. 83 (1963), requirement that the prosecution disclose exculpatory evidence to the defense, Petitioner must show "(1) that the prosecution failed to disclose evidence, (2) that the evidence was favorable to his defense, and (3) that the evidence was material." East v. Scott, 55 F.3d 996, 1002 (5th Cir. 1995). Cf. Campbell v. Henman, 931 F.2d 1212, 1214 (7th Cir. 1991) (noting that the Seventh Circuit Court of Appeals has held that Brady applies to prison disciplinary proceedings). "Evidence is material within the meaning of Brady when there is a reasonable probability that the result of the proceeding would have been different." Knox v. Johnson, 224 F.3d 470, 482 (5th Cir. 2000). The "`materiality' standard is `identical to' the prejudice standard [a petitioner has] to satisfy to prevail on [an] ineffective assistance claim." Martin v. Cain, 246 F.3d 471, 477 (5th Cir. 2001).
Petitioner argues that TDCJ-ID authorities should have provided him with copies of the UCC (Unit Classification Committee) lay-in sheet for August 30, 1999, to demonstrate that he could not have been out of place as charged and therefore could not have committed the assault. In a second and untimely response to Respondent's answer, Petitioner attached a copy of a Unit Classification Committee 48-Hour Notice which says that Officer Parks notified him on August 30, 1999, at 1015 hours that he was scheduled to appear before the UCC on September 2, 1999. Petitioner also testified at the disciplinary hearing that he had a UCC lay-in on August 30, 1999, but he did not request that Officer Parks be called to testify or ask that copies of the lay-in records be produced. Furthermore, there is a notation on the hearing worksheet that the DHO ("disciplinary hearing officer") checked the lay-in records and found that although Petitioner did have a lay-in on August 30, 1999, he was listed as a no-show. The Court finds that Petitioner has failed to demonstrate that he requested the evidence prior to the hearing and that the state refused to produce it, and he has failed to demonstrate that the evidence was "material" in the Brady sense. Moreover, Petitioner cannot show that he was prejudiced by the failure to present a copy of the lay-in records because he was in fact allowed to present the defense at his disciplinary hearing and the hearing officer stated that he had checked the records.
Petitioner next argues that TDCJ-ID failed to produce copies of his medical records to refute the implication that he injured his hand in the assault on August 30, 1999. There is nothing in the record to show that Petitioner requested that copies of his medical records be introduced into evidence or made available to his counsel substitute. There is also nothing in the record to demonstrate that the medical records contained evidence favorable to his defense or "material" in the Brady sense.
Finally, although Petitioner complains that TDCJ-ID officials failed to provide him with a copy of the charging officer's offense report and the investigating officer's report, he has failed to demonstrate that he requested copies of these reports and that either of these reports contained exculpatory evidence. Indeed, the Court has reviewed the records and finds nothing which even appears to be exculpatory or material to Petitioner's defense.
Accordingly, the Court finds that Petitioner has failed to demonstrate that TDCJ-ID violated due process by withholding exculpatory evidence that was material to his defense.
2. "Judge, jury, and . . . court"
Petitioner argues that it is "unconstitutional for the prison officials to be the judge, jury, and state court, hearing [officer], and attorney." Construing this complaint liberally, the Court understands Petitioner to claim that the disciplinary process is biased and internally conflicted because prison authorities run all parts of the proceedings and no independent "grand jury or petit jury" made up of persons independent of the prison determine what the charges will be or whether an inmate is guilty or innocent of such charges.
Although the Supreme Court has determined that an inmate is entitled to have his disciplinary case decided by an impartial decisionmaker, the Court has not precisely defined what constitutes an "impartial decisionmaker." Wolff v. McDonnell, 418 U.S. at 570-71. In Wolff, the Supreme Court found that a hearing board made up of three prison officials was "sufficiently impartial to satisfy the Due Process Clause." Id. at 571. In his concurring and dissenting opinion, Justice Marshall elaborated on this finding by noting that
there is no constitutional impediment to a disciplinary board composed of responsible prison officials like those on the Adjustment Committee here. While it might well be desirable to have persons from outside the prison system sitting on disciplinary panels, so as to eliminate any possibility that subtle institutional pressures may affect the outcome of disciplinary cases and to avoid any appearance of unfairness, in my view due process is satisfied as long as no member of the disciplinary board has been involved in the investigation or prosecution of the particular case, or has had any other form of personal involvement in the case.Id. at 592 (J. Marshall, concurring in part and dissenting in part).
The records show that Major D. Herron was the investigating and charging officer, C. Jenkins was counsel substitute, and Captain Alvarado was the disciplinary hearing officer; there is nothing in the records to show that Captain Alvarado was involved in the investigation or prosecution of the offense. Although Petitioner argues that the charging officer also sat in on the UCC hearing, the UCC hearing was conducted separately from the disciplinary hearing, and he offers nothing to demonstrate that he was prejudiced in his defense by Major Herron's serving in both capacities.
To the extent that Petitioner complains that he was not charged by a grand jury and not tried by a petit jury, the Supreme Court has determined that "[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply." Wolff v. McDonnell, 418 U.S. at 556.
3. Ineffective assistance of counsel
Petitioner argues that he was denied effective assistance of counsel at his disciplinary hearing because his appointed counsel substitute "failed to object, to tell petitioner about the additional information or the charging officer['s] information, to keep the tape on, and to secure evidence [or witnesses] in petitioner's favor."
An inmate has no constitutional right to either retained or appointed counsel in prison disciplinary proceedings. Baxter v. Palmigiano, 425 U.S. 308, 315 (1976); Enriquez v. Mitchell, 533 F.2d 275 (5th Cir. 1976). If there is no constitutional right to counsel at a disciplinary hearing, then the prisoner cannot be deprived of effective assistance of counsel. Wainwright v. Torna, 455 U.S. 586, 587-88 (1982).
4. Due process
In Petitioner's final argument, he complains that he was denied due process in disciplinary case number 20000012225. Specifically, Petitioner alleges that he was charged with a false case, the hearing officer failed to call a defense witness, false evidence was presented, and there was a conflict of interest.
In Wolff v. McDonnell, supra, the Supreme Court set forth the following minimum procedural due process protections to be accorded prisoners in disciplinary proceedings:
1. advance written notice of the claimed violation;
2. a written statement of the factfinder as to the evidence relied on and the reason(s) for the disciplinary action taken; and
3. an opportunityto call witnesses and present documentary evidence in defense, when to do so would not be unduly hazardous to institutional safety or correctional goals.Id. at 564-66. "[I]f some of the procedural safeguards are overlooked, the petitioner must demonstrate resulting prejudice to establish a constitutional violation cognizable on federal habeas corpus review." Turner v. Johnson, 46 F. Supp.2d 655, 661 (S.D.Tex. 1999). See Black v. Warren, 134 F.3d 732, 734 (5th Cir. 1998) ("Assuming TDCJ-ID procedural rules regarding notice and the right to call witnesses and present documentary evidence were violated, [petitioner] has not shown that such errors rise to the level of a constitutional due process claim."); Hallmark v. Johnson, 118 F.3d 1073, 1080 (5th Cir. 1997) (denying petitioner's due process claim that prison failed to provide written notice of the charges at least 24 hours prior to a hearing where the petitioner failed to explain how the failure was prejudicial to his defense).
Respondent contends, and the record clearly shows, that even though Petitioner refused to sign the notification, he was personally notified on September 10, 1999, that he was charged with being out of place and assaulting another inmate by striking him with his fists and kicking him with his feet. The hearing was conducted on September 20, 1999, more than 24 hours after Petitioner was notified and Petitioner conceded at the disciplinary hearing that he had been notified of the charges.
Although Petitioner contends that the disciplinary hearing officer refused to allow him to call a defense witness, there is nothing in the record to show that Petitioner asked to call a witness. At the hearing, Petitioner stated that he had discussed the charges and evidence with his counsel substitute and his counsel substitute had advised him of his rights at the hearing including his right to call witnesses. Petitioner testified in his own defense, but at no time during the hearing did he request that a witness be called. Moreover, Petitioner has wholly failed to demonstrate that even if the hearing officer erroneously failed to call a witness, he was prejudiced by the absence of the witness. See Banuelos v. McFarland, 41 F.3d 232, 234-35 (5th Cir. 1995) (denying petitioner's due process claim that hearing officer failed to call defense witnesses where the testimony of such witnesses would not have changed the outcome and thus petitioner did not demonstrate prejudice from the error).
Finally, although Petitioner did not originally complain that TDCJ-ID failed to provide him with a written statement describing the evidence relied on and the reasons for the disciplinary action, he has raised it in his arguments and responses. On the TDCJ-ID Disciplinary Report and Hearing Record from September 20, 1999, the disciplinary hearing officer did not circle any choices on the form — admission of guilt, officer's report, witness testimony, other; rather, when asked to explain in detail the evidence presented and the reasons for determining guilt, the officer wrote only "due to the serious nature of the offense." This statement clearly does not advise Petitioner of the evidence considered and relied on by the disciplinary hearing officer nor does it explain the reasons for the disciplinary action taken. Nevertheless, Petitioned has failed to demonstrate that he was harmed by this omission.
The Court has conducted an in camera inspection of the audio tape of Petitioner's disciplinary hearing, which was sealed by Order dated January 29, 2002, for security reasons. After the charges were read and Petitioner advised the disciplinary hearing officer that he had been advised of his rights, Petitioner testified in his own behalf. He stated that on August 30, 1999, he had a UCC lay-in and never committed an assault or was out of place. After he testified, Petitioner did not ask to call any witnesses or request that any documentary evidence be presented.
The DHO then called Major Herron, the charging and investigating officer, to testify. Petitioner was asked to leave the room during Major Herron's testimony because it was based on information from "a confidential informant or confidential informants," but his counsel substitute was allowed to remain in the hearing room. Major Herron then specifically described whom he had personally interviewed, the basis for the individual's information, and how he had attempted to corroborate the information. He explained why he believed that his investigation was reliable. After Major Herron completed his testimony, Petitioner's counsel substitute was allowed to cross examine him before Petitioner was called back into the hearing room. The DHO stated that he was considering the confidential information and allowed counsel substitute to make a statement on Petitioner's behalf. Petitioner was also given an opportunity to make a statement, but he refused. At the close of the hearing, the DHO stated that he was finding Petitioner guilty of the charge because of "Major Herron's report and investigation."
Following the disciplinary hearing, Petitioner filed both step 1 and step 2 grievances challenging the disciplinary proceeding. In his first grievance, Petitioner did not complain about the DHO's failure to provide him with a written statement. Although he raised it in his second grievance or appeal of the denial of the first grievance, the failure to provide a written explanation was never presented to TDCJ officials and they were not given an opportunity to correct the omission.
Moreover, Petitioner has failed to demonstrate how he was prejudiced by the officer's failure to provide a written explanation of the evidence relied on and the reasons for the disciplinary action. Petitioner was able to file both step 1 and step 2 grievances complaining about the disciplinary hearing, and he has filed his federal petition for writ of habeas corpus challenging the disciplinary proceeding despite the omission.
Furthermore, the Court's in camera inspection of the disciplinary hearing tape shows that there was clearly enough evidence to satisfy the due process requirement. Due process requires, "at a minimum, that there be `some evidence' in the record to support the disciplinary decision." Broussard v. Johnson, 253 F.3d 874, 876 (5th Cir. 2001). "Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence." Superintendent, Mass. Corr. Institution at Walpole v. Hill, 472 U.S. 445, 455 (1985). "Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Id. at 455-56.
As for Petitioner's allegations that the charges were false and he was denied due process because of a conflict of interest, the claims are conclusory and unsupported by any facts.
Due to the unique nature of the investigation and evidence in this case, and Petitioner's failure to demonstrate any prejudice from the procedures used by prison officials, the Court finds that Petitioner has failed to demonstrate that he was denied due process in disciplinary case number 20000012225.
It is, therefore, ORDERED that Petitioner's Petition for Writ of Habeas Corpus by a Person in State Custody is denied and dismissed with prejudice.
All relief not expressly granted is denied and any pending motions are denied.