Opinion
3:01-CV-1144-P
January 14, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and the District Court's order filed on November 25, 2003, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type of Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is currently confined at the Estelle Unit of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID) in Huntsville, Texas. Respondent is the Director of TDCJ-CID.
Statement of Case: Petitioner pled guilty to the offenses of burglary of a habitation in the 203rd Judicial District Court of Dallas County, Texas, cause numbers F92-59596-UP, F92-40739-IP, and F92-30908-IP. On June 5, 1992, the trial court found Sanchez guilty and assessed punishment at twenty years imprisonment in cause F92-59596-UP, twenty-five years imprisonment in cause number F92-40739-IP, and thirty years imprisonment in cause number F92-30908-IP.
In this action, Petitioner does not challenge the validity of his original conviction and sentence; rather, he challenges prison disciplinary proceeding number 2000249787, in which he was charged with assaulting two inmates with a stabbing device on April 14, 2000, at the Terrell Unit in Livingston, Texas. After a hearing, Petitioner was found guilty of the charge. Punishment was assessed as follows: removal of 730 days of good-time credits; a reduction in line class from L2 to L3; forty-five day loss of commissary and recreation privileges; and fifteen days of solitary confinement.
In his timely petition for a writ of habeas corpus, Petitioner alleges as follows: (1) the evidence was insufficient to support the hearing officer's finding of guilty; (2) he was denied a fair right to appeal and a meaningful opportunity to be heard; and (3 and 4) his placement in administrative segregation, as a result of his reduction in class status from L2 to L3, subjected him to cruel and unusual punishment and to multiple punishment in violation of the Double Jeopardy Clause and the Ex Post Facto Clause. Prior to filing this action, Petitioner exhausted his administrative remedies.
In disciplinary proceedings, the one-year period starts from date on which Petitioner was found guilty of the disciplinary violation and learned of the loss of good time credits, although tolling is allowed during the pendency of grievance proceeding. See Kimbrell v. Cockrell, 311 F.3d 361 (5th Cir. 2002).
In response to the order to show cause, Respondent filed an answer seeking denial of the petition on the merits. Petitioner filed a traverse and a response to Respondent's answer. Findings and Conclusions: Because Petitioner is eligible for release to mandatory supervision and he lost 730 days of good-time credits, the court must determine whether due process requirements were satisfied during the disciplinary proceedings. See Malchi v. Thaler, 211 F.3d 953, 957-958 (5th Cir. 2000).
In his response, Petitioner concedes that the loss of commissary and recreation do not implicate a liberty interest. (Petitioner's Response at 2).
Respondent concedes Petitioner is eligible for mandatory supervision. (Respondent's Answer at 6). Under Article 42.18, section 8(c) of the Texas Code of Criminal Procedure (now Tex. Gov't Code § 508.149(a)), inmates are not eligible for release to mandatory supervision if they are serving a sentence for certain crimes. Burglary of a habitation, Petitioner's underlying criminal conviction, is not and was not a listed offense at the time Petitioner was convicted of his offenses in 1992. Only first degree burglary, which in 1992 required a party to be prosecuted under subsection (d)(2) or (d)(3) of Tex. Penal Code § 30.02 was a listed offense. In 1992, § 30.02(d) provided in part that an offense under this section is a felony of the first degree if:
(2) any party to the offense is armed with explosives or a deadly weapon; or (3) any party to the offense injures or attempts to injure anyone in effecting entry or while in the building or in immediate flight from the building.
The record is silent as to whether Petitioner was prosecuted under subsection (d)(2) or (3). Therefore, the court proceeds on Respondent's assumption that Petitioner is eligible for mandatory supervised release.
Petitioner does not complain about the failure to provide the minimal procedural due process requirements set out in Wolff v. McDonnell 418 U.S. 539, 558 (1974); instead he challenges the due process requirement that, at a minimum, there be "some evidence" supporting the disciplinary determination. See Superintendent, Mass. Correctional Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985);Broussard v. Johnson, 253 F.3d 874, 876 (5th Cir. 2001).
In Hill, the Supreme Court determined that:
[a]scertaining 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. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.Hill, 472 U.S. at 455. See Smith v. Rabalais, 659 F.2d 539, 545 (5th Cir. Unit A 1981) (quoting Willis v. Ciccone, 506 F.2d 1011, 1018, 1019 n. 11 (8th Cir. 1974) ("No de novo review of the disciplinary board's factual finding is required, but the court must consider whether at least the decision is supported by `some facts' — `whether any evidence at all' supports the action taken by the prison officials."). The information provided in a written incident report standing alone can satisfy the "some evidence" standard.Hudson v. Johnson, 242 F.3d 534, 537 (5th Cir. 2001).
The court has reviewed the records provided by Respondent in disciplinary proceeding number 2000249787 and has listened to the audio tape recording of the hearings. Petitioner's allegation that the evidence was insufficient to substantiate the finding of guilt is without merit. The record demonstrates that the fact-finder's conclusion was neither arbitrary nor capricious, see Banuelos v. McFarland, 41 F.3d 232, 234 (5th Cir. 1995) (findings of prison disciplinary hearing shall not be disturbed unless they are arbitrary and capricious), and that there were at least some facts and evidence to support the finding of guilt and resultant loss of good-time credits, see Gibbs v. King, 779 F.2d 1040, 1044 (5th Cir. 1986) (a hearing officer's finding of guilt requires only the support of some fact, or any evidence at all).
In this case, the offense report charged Petitioner with a group-related assault of two Hispanic inmates with a stabbing device in the day room of section 71-1 on April 14, 2000, at approximately 5:00 p.m. (See Offense Report attached as Exh. B to Respondent's Answer). The Incident Data Form explained that
One Hispanic offender was found out of place in [the day room in question] . . . after two offenders were stabbed. Once removed, the Hispanic offender stated: "I fell out of place to help my "homebody, referring to another Hispanic offender, who also assaulted the two other offenders."
(See Exh. B to Respondent's Answer).
An Inter-Office Communication, dated April 14, 2000, revealed that Petitioner along with the other assailant was suspected to be a member of the STG Texas Syndicate organization, whereas the victims were not part of any "STG groups," nor did a search of their properties indicate "their involvement with the [STG group] HPL." (See id). The Inter-Office Communication relied on information from a confidential informant, who had provided reliable information in the past, and who was also a member of the STG group Texas Syndicate. (Id.). The informant "stated that the two assailants received information from a Mexican Mafia member that the two victims were affiliated with the STG group HPL and decided to act on this information instead of investigating the allegation." (Id.). The Inter-Office Communication also stated that each victim had suffered a one-inch deep puncture wound along with abrasions and superficial puncture wounds. (Id.).
At the disciplinary hearing, the hearing officer read the charges and advised Petitioner of his rights. Following Petitioner's plea of not guilty to the charge, the DHO called Officer R. Williams, the picket officer, who at the time in question was observing approximately forty inmates in the day room from the picket. She testified that as soon as she saw Petitioner chasing a few inmates around the day room, approximately thirty other inmates began running from the day room up to the second and third rows of cells. She confirmed that she did not see Petitioner with any weapon, nor did she see him striking any other inmate. Apart from the scrape on Petitioner's hand, Officer William did not observe any other inmate with blood on him or with what appeared to be blood.
Sgt. Melvin Wilson, the charging officer, testified next. He stated that upon his arrival at the day room, all inmates were running to their cells. He immediately summoned help and checked for injuries. He testified that he did not see Petitioner with a weapon, nor did he see him assaulting any inmate.
Captain Hunter, the investigating officer, was the third witness to testify. He stated that his investigation led him to the conclusion that Petitioner was the main culprit in the day-room assault. He acknowledged interviewing the confidential informant, and attested that the testimony of the informant was reliable for two reasons. First, the informant's testimony coincided with the physical evidence that was found during the investigation. Second, the confidential informant had been used in the past. He explained, however, that the weapon was never recovered and that it was not clear whether the informant had seen an actual weapon in Petitioner's hand. According to Hunter, the disciplinary case could not have been resolved without a confidential informant even in light of a photograph of Petitioner's hand with blood on it.
Petitioner alleges that at the time of the incident in question he was seated in the day room. (Handwritten attachment to petition at 1). When the quarrel began he alleges "he tried to remove himself from harm's way, so quickly that he accidentally cut his hand on the edge of the table where he was seated." (Id.). He explains that the only way to escape the conflict was to run around the day room because there was no other place to go. (Id.). According to him, "the wound on his hand, his own blood on his own body, his moving so quickly in the day room to get away from the conflict, and the false word of an informer . . . are all the evidence used to charge him" and find him guilty of the stabbing. (Id.). He emphasizes that his disciplinary hearing was twice halted following Officer William's truthful testimony that she did not see Petitioner with a weapon, nor did she see him striking anyone with his fists. (Id.).
Insofar as Petitioner asserts the hearing officer failed to give any weight to his testimony, his claim is meritless. The hearing officer is entitled to determine the credibility of witnesses and to wholly discredit Petitioner's defense and credit the charging officer's allegations. Hudson v. Johnson, 242 F.3d 534, 537 (5th Cir. 2001) ("Determining the believability of the testimonies presented at the hearing is left to the discretion of the hearing officer); see also Smith v. Rabalais, 649 F.2d 539, 545 (5th Cir. 1981).
This case is easily distinguishable from the facts of Broussard v. Johnson, 253 F.3d 874 (5th Cir. 2001), wherein the Fifth Circuit held that the prison disciplinary board violated the prisoner's right to due process by considering a confidential informant's tip as probative evidence where the officer who testified concerning the tip had never interviewed the informant, and had no knowledge of the confidential informant's identity or any facts supporting his reliability.Id. at 877. In this case, Captain Hunter personally interviewed the confidential informant and testified that he had prior dealings with him. The hearing officer independently assessed the reliability of the informant's information based on the underlying factual information; thus, it was properly considered as evidence. The disciplinary hearing officer was the determiner of the credibility of the evidence presented, and Petitioner has presented no allegation that his due process rights were violated under Wolff v. McDonnell, supra.
Likewise, Petitioner's allegation that he was denied due process while exhausting his administrative remedies through TDCJ-CID Inmate Grievance System is without merit. The due process requirements of Wolff do not ensure a meaningful appeal during the internal prison grievance process. Moreover, habeas corpus review is available only for the vindication of rights existing under federal law, not rights existing solely under state or administrative procedure. Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996) (TDCJ-ID's failure to follow its own administrative rules and regulations does not raise federal constitutional issues as long as minimum constitutional requirements are met).
In his last two grounds, Petitioner challenges his placement in administrative segregation or solitary confinement for six months, as a result of his reduction in class status from L2 to L3. (Handwritten attachment to petition at 3). He alleges that administrative segregation, coupled with the forfeiture of his property, subjected him to cruel and unusual punishment and to multiple punishment in violation of the Double Jeopardy and Ex Post Facto Clauses. (Id.). Neither of the above claims is cognizable in this habeas corpus action. Petitioner is challenging the conditions of his six-month imprisonment in administrative segregation as opposed to the fact or duration of his confinement. A petition for a writ of habeas corpus permits a petitioner to seek immediate or earlier release from custody, whereas a complaint pursuant to 42 U.S.C. § 1983 provides the proper avenue to challenge unconstitutional conditions of confinement and prison procedures.Carson v. Johnson, 112 F.3d 818, 820 (5th Cir. 1997);Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995) (per curiam). RECOMMENDATION:
For the foregoing reasons, it is recommended that the petition for a writ of habeas corpus be denied and dismissed.
A copy of this recommendation will be transmitted to Petitioner and counsel for Respondent.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.