Opinion
CV144005983
11-28-2016
Michael White v. Warden, State Prison
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Samuel J. Sferrazza, S.J.
The petitioner, Michael White, seeks habeas corpus relief based on an alleged violation of his due process rights regarding disciplinary sanctions imposed by the Department of Corrections (DOC) for affiliation with a prison gang known as the Bloods. That punishment included a forfeiture of ten days risk reduction earned credit.
The petitioner avers that the disciplinary report (DR), or " ticket, " he received was invalid because he had already received punishment for the same misconduct via an earlier DR; that the later DR lacked sufficient specificity to allow the petitioner to defend himself against the charge; and that the failure of DOC to notify him in a timely fashion of the adverse decision of the disciplinary hearing officer (DHO) deprived him of his chance to appeal that decision administratively.
Only disciplinary actions by prison officials which denigrate an inmate's liberty interest are susceptible to redress through habeas corpus. " There is no warrant in either the statute or the writ for its use to invoke judicial determination of questions which could not affect the lawfulness of the custody and detention . . ." Vincenzo v. Warden, 26 Conn.App. 132, 136, 599 A.2d 31 (1991); Hickey v. Commissioner, 82 Conn.App. 25, 28 fn. 3, 842 A.2d 606 (2004).
Thus, prison disciplinary decisions which entail loss of recreational activity, education or work programs, phone privileges, visitation privileges, or risk classification fall outside the ambit of habeas corpus jurisdiction, Wheway v. Warden, 215 Conn. 418, 430-32, 576 A.2d 494 (1990); Santiago v. Commissioner, 39 Conn.App. 674, 680-81, 667 A.2d 304 (1995). Also, discretionary transfers, home release, eligibility for parole, release to halfway houses, eligibility for educational and work release programs likewise fail to create a constitutionally protected liberty interest, Baker v. Commissioner, 281 Conn. 241, 243, 914 A.2d 1034 (2007); Asherman v. Meachum, 213 Conn. 38, 49, 566 A.2d 663 (1989).
In this case, the only disciplinary penalty which can possibly be addressed is the loss of ten days risk reduction earned credit. This loss of days is the equivalent to a loss of earned good time credit, which credit does create a constitutionally protected liberty interest, Santiago v. Commissioner, supra, at 682.
Sufficiency of Notice of Infraction
The petitioner received the DR which is the subject of this habeas action on October 4, 2013. The ticket informed the petitioner that the DOC wished to discipline him because he " was involved in a gang related assault on September 13, 2013." Further, " inmate White's behavior is clearly and uniquely associated with the Security Risk Group - Bloods."
C.O. Cossette investigated the allegations and, on October 9, 2013, determined that the fight in which the petitioner participated was gang-related; that the petitioner had been observed keeping company with known Blood members who practiced extortion upon other inmates through group intimidation; and that the petitioner admitted to ownership of a pair of sneakers that were laced and tied in a distinctive way, known as a " dog paw." This peculiar display of lacing had previously been documented by prison security as an identifier of Blood membership. C.O. Cossette discussed his findings with the petitioner on that same day, October 9, 2013, and the petitioner denied the allegation of gang affiliation. The petitioner also declined use of an advocate for his hearing.
The disciplinary hearing occurred on October 23, 2013, and the petitioner spoke in his own defense. He acknowledged the conspicuously laced sneakers were his, but he disputed association with the Bloods.
The court finds that no denial of due process involving notice of the putative breach of prison rules occurred. " In order to prevail on his due process claim, the [petitioner] must prove that: (1) he has been deprived of a property [or liberty] interest cognizable under the due process clause; and (2) the deprivation of the property [or liberty] interest has occurred without due process of law." Vandever v. Commissioner, 315 Conn. 231, 241 (2014). " The requirements imposed by the [due process] [c]lause are, of course, flexible and variable [depending on] the particular situation being examined . . . In determining what is due process in the prison context, we are reminded that one cannot automatically apply procedural rules designed for free citizens in an open society . . . to the very different situation presented by a disciplinary proceeding in a state prison . . ." Id., 244. In order to satisfy due process with respect to inmate discipline, prison officials need only engage in " informal, nonadversary review" of the disciplinary report, Id. Such hearing does require that the department afford " some notice of the charges against [the inmate] and an opportunity to present his views" to the decision-maker, Id.
The contents of the DR, coupled with the investigator's discussions with the petitioner on October 9, 2013, provided him with ample notice of the specific allegation that the petitioner broke prison rules of conduct through affiliation with the Bloods. That prehearing information also included a summary of the evidence gathered by prison authorities to substantiate that allegation.
" Because of the unique requirements of prison security, the full panoply of rights due a defendant during a criminal trial are not available in a prison disciplinary hearing, " Torres v. Commissioner, 84 Conn.App. 113, 118 (2004). Despite this relaxation of procedural rigor, the determination by prison officials must be supported by some evidence, Vandever v. Commissioner, supra, 245. The " some evidence" standard is a " lenient one, requiring only a 'modicum of evidence' to support the challenged decision." Vandever v. Commissioner, supra . The habeas court's analysis as to whether that standard was met " does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence, " Id. " Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached . . ." Id., (emphasis added).
As mentioned above, the petitioner admitted ownership of the sneakers in question and had previously admitted to engaging in the fight that prompted prison staff to probe his relationship with the Bloods. The court finds that the record before the DHO contained some evidence corroborating the petitioner's association with the Bloods based on the nature of the melee, the petitioner's companions, and the symbolic lacing of his sneakers.
Double Punishment Claim
The petitioner also asserts that he received double punishment because he had already been sanctioned for fighting on September 13, 2013. That behavior resulted in the issuance of an earlier DR to which the petitioner pleaded guilty and received punishment that entailed no loss of earned credit. The petitioner's assertion is meritless. The later DR issued for gang affiliation, a completely distinct infraction of prison rules from fighting. It is true that the fight precipitated further investigation into the petitioner's prison associates, but that circumstance fails to comprise double discipline for the same misbehavior. A motor vehicle violation stop may result in discovery of later identified contraband in the vehicle, but that fact does not prevent the person arrested from being prosecuted for both the motor vehicle case and a separate criminal charge. One could engage in a prohibited fight without gang affiliation, and one could be a gang member without fighting on a given date. This habeas corpus claim fails.
Lost Opportunity to Appeal
As recounted earlier, the disciplinary hearing took place on October 23, 2013. The date of delivery of the notice of right to appeal to the petitioner is also dated October 23, 2013. However, the DHO's report is dated October 27, 2013, which is four days after the purported delivery to the petitioner.
The petitioner testified at the habeas hearing that he first learned of the unfavorable decision by the DHO only through an FOIA request he filed well after October 27, 2013. By then, the fifteen-day opportunity to appeal the DHO's decision administratively had expired.
The author of the decision, that is the DHO, never testified at the habeas trial.
Typically, the court would indulge in a rebuttable presumption that the contents of an official document were prepared in good order. However, in the present case, that presumption evaporates because of the glaring discrepancy described above. Given the disparity in dates regarding notice of the right to appeal and the petitioner's avowal that he never actually received that notice, the court finds that no timely notice was given to him.
Therefore, the amended petition for habeas corpus relief is partly denied and partly granted. The court denies the petitioner's request to have the disciplinary action vacated. However, the court orders that the petitioner be afforded a new fifteen-day period in which to file an administrative appeal in accordance with the DOC procedures for such action.