Opinion
2:99-CV-0400
January 23, 2003
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, but instead, challenges a prison disciplinary charge and hearing, and the resultant guilty finding and forfeiture of 730 days good time credits. Following the finding of guilt, petitioner GIBSON appealed the disciplinary adjudication within the prison grievance process filing both a Step 1 and a Step 2 grievance. No further appeals were taken and no state court has heard petitioner's challenges. Petitioner presents his constitutional challenges to this federal court directly following the prison disciplinary and grievance proceedings. 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 courts' refusal to hear forfeiture of good time claims, it is well settled that forfeiture of good time is, under specific circumstances, a constitutional issue 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 allowing for deference to prior state court adjudications are inapplicable.
I. PROCEEDINGS
Petitioner, WELDON GIBSON, was charged in disciplinary case number 990122009 with the offense of possession of a narcotic, namely 0.44 grams of cocaine. Following a disciplinary hearing, petitioner was found guilty and assessed a punishment which included forfeiture of seven hundred thirty (730) 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 protected 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 February 10, 1999. Petitioner then filed a Step 2 grievance which was denied on March 9, 1999. Petitioner also filed a Step 1 grievance appeal on April 17, 2000, and a Step 2 grievance appeal on April 24, 2000.
II. PETITIONER'S ALLEGATIONS
Petitioner contends the evidence was insufficient to support a finding of guilt because:
1. there was no laboratory report or test results establishing the nature of the substance found;
2. the narcotic was found in a tool box that he could not access except under the supervision of TDCJ-ID personnel;
3. Gibson was not the only person who had access to the tool box in which the drug was found; and
4. there was no testimony to support the allegation that he possessed cocaine.
III. MERITS
In an earlier Report and Recommendation to Deny Respondent's Motion to Dismiss for Failure to Exhaust which issued February 8, 2001, this Court found petitioner had taken all necessary steps to exhaust his administrative remedies and had, therefore, complied with the exhaustion requirement. That recommendation did not address, and did not adjudicate, however, any issue relating to possible procedural default by petitioner in failing to properly file a timely grievance on all grounds presented in his petition for writ of habeas corpus. The procedural default issue involves the failure of petitioner to raise claim one of this petition, i.e., that there was no lab report or test results establishing the nature of the substance found in the Step 2 grievance appeal he filed with TDCJ-ID on or about February 11, 1999. Petitioner did attempt to raise this issue of no laboratory test subsequent to the filing of this habeas petition by presenting a Step 1 grievance on April 17, 2000. This Step 1 grievance was returned to petitioner as untimely. Petitioner then filed a Step 2 grievance on April 24, 2000, which was also returned with the statement that "You may not submit a Step 2 appeal on a Step 1 grievance that was returned to you for improper submission."If the April 2000 grievances, deemed by prison authorities to be untimely and improper are considered to have been denied on procedural grounds, then, under the procedural default doctrine, this Court may be precluded from granting habeas relief.
The procedural default doctrine historically involves applications of a state-law procedural bar by the state court to deny relief. The prison grievance system, obviously, is not a state court. Since, however, the Texas courts do not hear these type cases, it is arguable, and it would seem logical, to extend the procedural default doctrine to disciplinary appeals.
In this case, it is not necessary to reach the procedural default issue because relief on ground one can be denied on the merits. The Amarillo Police Department's field test is referenced in the disciplinary case record, and such constituted "some evidence" for purposes of a disciplinary hearing, even though the field test might be insufficient in a criminal proceeding. Accordingly, petitioner's first ground for relief is denied.
This "procedural default" issue is further complicated because respondent, in her motion to dismiss for failure to exhaust, advised that petitioner could still present, and that TDCJ-ID would hear, petitioner's claims if they were presented in the grievance process regardless of delays in filing (p. 4 of respondent's motion to dismiss and answer). As set forth above, TDCJ-ID did not hear petitioner's claims, but, instead, rejected the grievances untimely.
In order to prevail on the remaining grounds, 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 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 eight (8) days' written 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 and present documentary evidence. Therefore, the first and second provisions of the Wolff holding were clearly met. The third Wolff provision, requiring a written statement by the fact finder of the evidence relied upon and the reasons for the disciplinary action, also appears to have been met. The hearing officer supported his finding of guilt by citing the report signed by the charging officer, the witness testimony, and other documentary evidence, and also set forth the reasons for the assessment of the punishment.
Even though the third Wolfe provision was apparently met, the evidence recited by the hearing officer to support the guilty finding falls short of the due process requirement of "some evidence." In Broussard v. Johnson, 253 F.3d 874 (5th Cir. 2001), the Fifth Circuit affirmed the District Court's finding that the 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, Gibson and at least two other inmates had access to the maintenance department toolbox in which the cocaine was found. There was testimony from the charging officer, Lieutenant D. Fairfield, that another person, the night callout, also had access to the toolbox and may not have maintained security of the box. The question is whether these facts constitute "some evidence." It is the opinion of the undersigned that they do not. In reaching the determination that they do not, the Court has considered the following:
1. The toolbox purportedly remained locked unless opened under TDCJ-ID personnel supervision to provide access to Gibson or two other inmates, Townsend and Martin, and possibly another inmate, the night call out;
2. The red toolbox in which the cocaine was found may not, indeed, stay locked at all times, or it may contain three or four drawers which do not lock; and
3. The cocaine found was wrapped in tissue paper and was not in plain sight.
The only evidence linking Gibson to the cocaine is that it was found in a toolbox to which he, along with at least three (3) other persons, had some limited access. There is nothing other than mere access or mere presence to connect GIBSON to the contraband. The Court concludes that such evidence is insufficient to satisfy the "some evidence" standard of Superintendent v. Hill, supra.
This is not to say that the standard is the same as in a criminal prosecution. Indeed, non-exclusive access to contraband in an area over which an inmate had some responsibility, such as a shared cell, his locker or a cabinet in his cell, etc., might be sufficient to constitute "some evidence."
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 WELDON GIBSON 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. 990122009, and restore Petitioner's loss of 730 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).
IT IS SO RECOMMENDED.