Opinion
7:02-CV-055-R
June 21, 2002
ORDER OF DISMISSAL
This is a petition for writ of habeas corpus brought under 28 U.S.C. § 2254 by an inmate confined in the James V. Allred Unit of the Texas Department of Criminal Justice ("TDCJ"). On May 21, 2002, questions were issued to Petitioner, his answers to which were filed on June 6, 2002.
Petitioner is serving two concurrent ten-year sentences for delivery of a controlled substance and aggravated assault. Second Amended Petition ¶¶ 1-4. While incarcerated in the Price Daniel Unit, he was charged with a disciplinary infraction and, on August 4, 2001, he was found guilty. As punishment, Petitioner lost 45 days of commissary privileges and 180 days of good time credits. Second Amended Petition ¶ 18. He also claims to have been held at a classification level of Line-3. Id. Rice challenged the results of the disciplinary proceeding through the prison grievance process without success. Second Amended Petition ¶ 19. He then filed this action in federal court.
It appears that Rice was charged with threatening a correctional officer. See Second Amended Petition at ¶ 19.
Rice claims that he was denied due process during the disciplinary hearing. Specifically, he states that he had died prison grievances in the past and that there were grievances filed by him pending at the time of the disciplinary hearing; that his request for a witness to testify was denied; that one officer testified by telephone; that there was never an investigation into the fact that Petitioner had filed grievances against "the officer in question," and; that the hearing officer lacked the expertise to conduct the hearing. Second Amended Petition ¶ 20; Petitioner's Answer to the Court's Question No. 1.
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 (1995). Restrictions which alter the conditions of confinement do not implicate due process. See 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.) (ending that Texas prisoners have no protected liberty interest in yearly release on parole), cert. denied, 501 U.S. 1210, 111 S.Ct. 2809 (1991).
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 Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975 (1974) (holding that prisoners are 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. Wolff, 418 U.S. at 564-66, 94 S.Ct. at 2979. Federal habeas review of the sufficiency of the evidence 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, 457, 105 S.Ct. 2768, 2775 (1985); see Smith v. Rabalais, 659 F.2d 539, 545 (5th Cir. 1981) (requiring the court to determine whether "any evidence at all" supports disciplinary action taken by prison officials), cert. denied, 455 U.S. 992, 102 S.Ct. 1619 (1982).
The Court initially observes that Petitioner's commissary restriction and classification level do not implicate due process concerns. See Malchi, 211 F.3d at 958; Madison, 104 F.3d at 768. However, Petitioner also lost 180 days of good time credit. Assuming the truth of his claim that he is eligible for release to mandatory supervision, Rice has a constitutionally protected liberty interest sufficient to justify the consideration of his claims on the merits. Malchi, 211 F.3d at 958-59.
Petitioner first claims that he had previously filed prison grievances and that there were grievances filed by him pending at the time of the disciplinary hearing. Unfortunately, Rice has failed to describe the relevance of his grievances to his claim that he was denied due process. He claims that there was never an investigation into the fact that he had filed grievances against "the officer in question." This allegation is without merit. Rice does not indicate what sort of an investigation should have been conducted or, if conducted, what a "proper" investigation would have revealed. Moreover, Rice has no constitutional right to direct or set standards for a TDCJ investigation into a prison disciplinary violation. His conclusory allegation that an investigation was necessary fails to state a ground upon which habeas relief may be granted. See Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983) (emphasizing that mere conclusory allegations do not raise constitutional issues in habeas proceedings).
Rice claims an officer testified by telephone that he was not aware of the grievances filed by Rice. Simply reiterating a witness's testimony in federal court does not give rise to a cognizable ground for habeas relief. To the extent, if any, that Rice seeks to challenge the credibility of the officer's testimony, no ground for habeas relief is presented. "[This] court is not required to examine the entire record, make an independent assessment of the credibility of witnesses, or weigh evidence." Hudson v. Johnson, 242 F.3d 534, 538 (5th Cir. 2001) (Pogue, J., specially concurring). Federal courts hold no appellate authority over prison disciplinary proceedings and may intervene only to correct errors of constitutional magnitude. See Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 948 (1982). Federal courts "do not sit as a `super' state supreme court in a habeas corpus proceeding to review errors under state law." Cronnon v. State of Alabama, 587 F.2d 246, 250 (5th Cir.) (citations omitted), cert. denied, 440 U.S. 974, 99 S.Ct. 1542 (1979). Therefore, this ground for relief shall be denied.
Next, Rice claims that the hearing officer lacked the expertise to conduct the hearing. Unfortunately, Rice offers nothing to support this allegation. As noted above, mere conclusory allegations do not raise constitutional issues in habeas proceedings. See Ross v. Estelle, 694 F.2d at 1012.
Finally, Rice claims that his request to call a witness was wrongfully denied. It is well settled that an inmate's right to call witnesses in a disciplinary action may be denied if allowing such a witness would be unduly hazardous to institutional safety or correctional goals. Broussard v. Johnson, 253 F.3d 874, 876 (5th Cir. 2001). Although Rice does not indicate the reason given for the denial of his witness, he concedes that the hearing officer accepted his witness's written statement. Second Amended Petition ¶ 20.A. The fact that his witness's statement was of "no avail" is without moment. Certainly, the hearing officer is not bound in his decision by one witness's statement. The fact that his witness was permitted to make a written statement cures any possible error in not allowing live testimony. The fact that the witness was allowed to make a statement, assuming it was on Rice's behalf; without subjecting himself to cross-examination should not have proven detrimental to Rice's case.
Moreover, complaints of uncalled witnesses are not favored in federal habeas corpus review because allegations of what a witness would have testified are largely speculative. Lockhart v. McCotter, 782 F.2d 1275, 1282 (5th Cir. 1986), cert. denied, 479 U.S. 1030, 107 S.Ct. 873 (1987). Where the only evidence of a missing witness's testimony is provided by the habeas petitioner. federal courts view his claims with great caution. Id. (citing Schwander v. Blackburn, 750 F.2d 494, 500 (5th Cir. 1985)). A meritorious claim of uncalled witnesses requires that a habeas petitioner show not only that the testimony would have been favorable, but also that the witness would have so testified during the proceeding. Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985).
Rice's claim fails to meet these standards. He has failed to demonstrate that his uncalled witness possessed favorable information regarding his case and that he would have so testified at the bearing. "Although pro se habeas petitions must be construed liberally, `mere conclusory allegations on a critical issue are insufficient to raise a constitutional issue.'" Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990) (quoting United States v. Woods, 870 F.2d 285, 288 n. 3 (5th Cir. 1989). Rice's conclusory statements alone are insufficient to warrant habeas relief.
Further review of Rice's petition and his answers to the Court's questions reflect that he has failed to state a cognizable ground for habeas relief. He does not claim to have been denied written notice of the alleged disciplinary violation prior to the hearing and he makes no claim that he was denied the right to present evidence or that he was denied a written statement from the hearing officer as to the evidence relied upon and the reasons for the disciplinary action. See Wolff, 418 U.S. at 564-66, 94 S.Ct. at 2979. Furthermore, Rice does not claim that the evidence against him was insufficient to support the finding of guilt.
Absent a claim that he has been deprived of some right secured to him by the United States Constitution or laws, Rice is not entitled to habeas corpus relief. Thomas v. Torres, 717 F.2d 248, 249 (5th Cir. 1983), cert. denied, 465 U.S. 1010, 104 S.Ct. 1008 (1984). In the case at bar, Rice has failed to show that the disciplinary action taken against him was constitutionally infirm. The grounds for relief set forth in his petition and in his answers to the Court's questions present no issues of constitutional magnitude.
IT IS THEREFORE ORDERED that the petition for writ of habeas corpus is hereby DENIED.