Opinion
No. 3-04-CV-2525-H.
March 23, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner John Todd Washington, 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 50-year sentence for burglary of a habitation. While incarcerated at the Estelle Unit of the TDCJ-ID, petitioner was convicted of criminal trespass and theft, a Level 1, Code 10 disciplinary infraction, and damaging state property, a Level 2, Code 18 disciplinary infraction. Punishment was assessed at solitary confinement for 15 days, commissary and cell restriction for 45 days, a reduction in time-earning status from S-3 to L-3, and loss of 365 days of good time credit. Petitioner challenged the results of his disciplinary hearing through the prison grievance process. His grievance was denied. Petitioner then filed this action in federal court.
Petitioner was subsequently transferred to the Allred Unit where he is presently incarcerated.
II.
In three grounds for relief, petitioner contends that: (1) he was denied the right to appeal the denial of his Step 1 grievance; (2) he was denied due process in connection with his disciplinary hearing; and (3) the evidence was insufficient to establish a disciplinary infraction.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, 484, 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 id., 115 S.Ct. at 2301 (segregated confinement); 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.
B.
The court initially observes that solitary confinement, cell restriction, 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 365 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 "Washington was assessed forfeiture of 365 days of good time credit as a result of the disciplinary proceeding and he is eligible for mandatory supervision release." (Resp. Ans. at 1, 9).
1.
Petitioner first contends that he was denied the right to appeal the denial of his Step 1 grievance. As required by TDCJ regulations, petitioner filed a Step 1 grievance with prison authorities on January 12, 2004. His grievance was denied on March 26, 2004. Petitioner appealed this decision to the TDCJ-ID in a Step 2 grievance filed on April 6, 2004. The grievance form was returned to petitioner on April 23, 2004 for having excessive attachments. Petitioner resubmitted his Step 2 grievance without the attachments on May 14, 2004. Twelve days later, the grievance was denied as untimely. ( See St. Griev. Rec. at 001-07).
The TDCJ provides a two-step procedure for presenting administrative grievances. Step 1 requires a prisoner to submit his grievance to prison authorities at the institutional level within 15 days of an adverse action. If the Step 1 grievance is denied, the prisoner must file a Step 2 grievance with the TDCJ-ID within 15 days. See TDCJ Admin. Dir. 03.82 and TDCJ Board Policy 03.77, cited in Kimbrell v. Cockrell, 311 F.3d 361, 364 n. 3 (5th Cir. 2002).
Petitioner now complains that prison authorities deprived him of the right to appeal their adverse decision by requiring him to resubmit his Step 2 grievance. However, the due process requirements of Wolff do not extend to the internal prison grievance process. Sanchez v. Dretke, 2004 WL 86307 at *4 (N.D. Tex. Jan. 14, 2004) (Sanderson, J.), rec. adopted, 2004 WL 637934 (N.D. Tex. Feb. 19, 2004). Moreover, federal habeas review is not available to remedy violations of state administrative regulations. Id.; see also Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996) (failure to follow TDCJ-ID rules and regulations does not raise federal constitutional issue as long as minimum constitutional requirements are met). This ground for relief is without merit and should be overruled.
2.
Petitioner also claims that he was denied due process in connection with his disciplinary hearing. The record shows that petitioner received written notice of the alleged offenses on December 31, 2003. (St. Dis. Hrg. Rec. at 001). A hearing was held six days later on January 6, 2004, at which time petitioner was given an opportunity to present a defense. ( Id.). At the conclusion of the hearing, petitioner was found guilty of criminal trespass and theft, acts defined as felonies under Texas law, and damaging state property. The hearing officer issued a written report detailing the evidence relied on and the reasons for the disciplinary action taken. ( Id.). This satisfies the minimum requirements of due process. See Wolff, 94 S.Ct. at 2978-79. Although petitioner may disagree with the ultimate decision, he has failed to establish a constitutional violation. See Cuevas v. Dretke, 2004 WL 1585850 at *1 (N.D. Tex. Jul. 13, 2004) (Kaplan, J.), rec. adopted, 2004 WL 1836736 (N.D. Tex. Aug. 16, 2004) (petitioner not entitled to habeas relief where disciplinary hearing process complied with minimum requirements of due process); Johnson v. Dretke, 2004 WL 1402571 at *1 (N.D. Tex. Jun. 22, 2004) (Kaplan, J.), rec. adopted, 2004 WL 1468570 (N.D. Tex. Jun. 30, 2004) (same).
3.
Finally, petitioner contends that the "hearsay" and "circumstantial evidence" provided by an unidentified informant was insufficient to support his conviction. 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), cert. denied, 102 S.Ct. 1619 (1982) (court must determine whether "any evidence at all" supports disciplinary action taken by prison officials); Christoph v. Cockrell, 2003 WL 21750705 (N.D. Tex. Jul. 23, 2003) (Kaplan, J.); Van v. Johnson, 2001 WL 741724 at *2 (N.D. Tex. May 21, 2001) (Kaplan, J.), rec. adopted, 2001 WL 720504 (N.D. Tex. Jun. 21, 2001). Here, the offense report indicates that petitioner left a vocational bricklaying class and entered a secured diesel shop without authorization. He pushed open a gate and tried to gain entry to the tool room, damaging a door in the process. Unable to access the tool room, petitioner took a clock from the wall and returned to his classroom with the stolen property. (St. Dis. Hrg. Rec. at 003). This report, standing alone, constitutes all the evidence necessary to establish a disciplinary infraction. See Hudson v. Johnson, 242 F.3d 534, 537 (5th Cir. 2001) (incident report is "some evidence" of guilt); Christoph, 2003 WL 21750705 at *2 (same).Nor was petitioner denied due process because the hearing officer relied on information provided by a confidential informant. The investigating officer, Captain O'Hare, testified that he corroborated much of this information and believed it to be reliable. (St. Dis. Hrg. Rec. at 021). In particular, O'Hare confirmed that petitioner was attending a bricklaying class in the area at the time of the offense and that the stolen clock was recovered from petitioner's classroom. ( Id.). Petitioner also admitted going into the area and taking the clock. ( Id.). Because the hearing officer independently assessed the reliability of information provided by the informant, there is no due process violation. See Ramirez v. Dretke, 86 Fed.Appx. 21, 2004 WL 57709 at *2 (5th Cir. Jan. 12, 2004); Sanchez, 2004 WL 86307 at *4. Cf. Broussard v. Johnson, 253 F.3d 874, 877 (5th Cir. 2001) (prisoner entitled to habeas relief where disciplinary board failed to corroborate information provided by confidential informant).
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.