Opinion
No. 68173
09-16-2015
DAVID OWENS HOOPER, Appellant, v. WARDEN, ELY STATE PRISON, Respondent.
An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.
ORDER OF AFFIRMANCE
This is an appeal from an order of the district court denying a post-conviction petition for a writ of habeas corpus. Seventh Judicial District Court, White Pine County; Steve L. Dobrescu, Judge.
This appeal has been submitted for decision without oral argument, NRAP 34(f)(3), and we conclude the record is sufficient for our review and briefing is unwarranted. See Luckett v. Warden, 91 Nev. 681, 682, 541 P.2d 910, 911 (1975).
On February 8, 2013, appellant David Hooper filed a post-conviction petition for a writ of habeas corpus in the district court challenging a prison disciplinary hearing, which resulted in a finding of guilt of MJ3 (battery), MJ2 (assault), MJ28 (organizing a work stoppage or demonstration), and G14 (failure to follow rules and regulations), and the forfeiture of 365 days of credit. Hooper claimed he was deprived of due process because his right against self-incrimination was violated and he was potentially subject to double jeopardy.
To the extent Hooper challenged his placement in disciplinary segregation, restitution or the loss of privileges, Hooper's challenge was not cognizable in a petition for a writ of habeas corpus. See Bowen v. Warden, 100 Nev. 489, 490, 686 P.2d 250, 250 (1984); see also Sandin v. Conner, 515 U.S. 472, 486 (1995) (holding that liberty interest protected by the Due Process Clause will generally be limited to freedom from restraint which imposes an atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life).
Hooper failed to demonstrate a violation of due process because he received: (1) advance written notice of the charges; (2) a written statement of the fact finders of the evidence relied upon and the reasons for disciplinary action; and (3) a qualified right to call witnesses and present evidence. See Wolff v. McDonnell, 418 U.S. 539, 563-69 (1974). Further, some evidence supported the decision by the prison disciplinary hearing officer. See Superintendent v. Hill, 472 U.S. 445, 455 (1985).
Hooper's argument that the disciplinary hearing violated his right against self-incrimination and he was not properly advised of his rights pursuant Miranda v. Arizona, 384 U.S. 436 (1966), is without merit. As established by the United States Supreme Court, prison disciplinary proceedings are civil, not criminal in nature. Baxter v. Palmigiano, 425 U.S. 308, 318-19 (1976). Therefore, the full panoply of rights provided by the Fifth Amendment and the interpreting case law, such as Miranda, do not apply. Id. at 316. As established in Baxter, the Fifth Amendment does not "forbid drawing adverse inferences against an inmate from his failure to testify [in a prison disciplinary hearing]," so long as that silence does not form the sole basis for the hearing officer's decision. Id. at 316-19. Similarly, while any non-Mirandized statements made in a disciplinary hearing are likely not admissible in an ensuing criminal proceeding, prison officials are not required to advise inmates of their full Miranda rights prior to a disciplinary hearing. Id. at 315 (noting that "[t]he Court has never held, and we decline to do so now, that the requirements of Miranda must be met to render pretrial statements admissible in other than criminal cases").
In this case, the proceeding against Hooper was a prison disciplinary hearing, and civil in nature. No party interfered with Hooper's choice to remain silent, and the decision of the hearing officer was based on evidence beyond Hooper's silence. Accordingly, we conclude the district court did not err in denying this claim.
Next, Hooper claimed the prison disciplinary hearing might violate double jeopardy because at some time in the future he may be criminally prosecuted for the same subject matter as the prison disciplinary hearing. Hooper's claim lacks merit. First, Hooper has not alleged the State actually sought criminal charges based on the conduct considered at the prison disciplinary hearing. Therefore, his double jeopardy claim is merely speculative. Second, this claim is not properly raised because double jeopardy would only potentially be implicated in the criminal case because the prison disciplinary proceedings happened first. Finally, we note double jeopardy does not apply to prison disciplinary cases.
[T]he prohibition against double jeopardy does not bar criminal prosecution for conduct that has been the subject of prison disciplinary sanctions for two independent reasons: 1) even if the sanctions were "punishment," they were integral parts of [the defendant's] single punishment for [his underlying conviction]; and 2) the sanctions are not punishment for purposes of double jeopardy because they are solely remedial.United States v. Brown, 59 F,3d 102, 104 (9th Cir. 1995); see also Garrity v. Fiedler, 41 F.3d 1150, 1152 (7th Cir. 1994) (holding "that prison discipline does not preclude a subsequent criminal prosecution or punishment for the same acts" and listing cases from other circuits which have held the same); Carbonneau v. Warden, 99 Nev. 172, 174, 659 P.2d 875, 876 (1983). Therefore, the district court did not err in denying this claim.
Next, Hooper appears to argue the statute of limitations for post-conviction petitions should be equitably tolled pursuant to AEDPA The Nevada Supreme Court has rejected federal tolling standards, see Brown v. McDaniel, 130 Nev. ___, 331 P.3d 867, 874 (2014), and we note that the State has not alleged a statute of limitations defense to the petition. Therefore, the district court did not err in denying this claim.
Finally, Hooper appears to argue district courts should not be allowed to deny a petitioner's right to counsel in post-conviction proceedings. The right to counsel in post-conviction proceedings is statutory and the appointment of counsel by the district court is discretionary. NRS 34.750(1). Hooper failed to demonstrate the district court abused its discretion by failing to appoint counsel.
Having reviewed Hooper's claims and concluded he is not entitled to relief, we
ORDER the judgment of the district court AFFIRMED.
We have reviewed all documents Hooper has submitted in this matter, and we conclude no relief based upon those submissions is warranted. To the extent Hooper has attempted to present claims or facts in those submissions which were not previously presented in the proceedings below, we decline to consider them in the first instance. --------
/s/_________, C.J.
Gibbons
/s/_________, J.
Tao
/s/_________, J.
Silver
cc: Hon. Steve L. Dobrescu, District Judge
David Owens Hooper
Attorney General/Carson City
White Pine County District Attorney
Attorney General/Ely
White Pine County Clerk