Opinion
7:00-CV-200-R
April 30, 2003
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").
Petitioner is serving a twelve-year sentence pursuant to his Smith County conviction for the offense of burglary of a habitation. Amended Petition ¶¶ 1-4. While incarcerated in the Allred Unit, Tennyson was charged with a disciplinary infraction for threatening an officer. He was found guilty. As punishment, Petitioner's classification was reduced from Line Class 2 to Line Class 3. Additionally, he lost 45 days of recreation and commissary privileges and 180 days of good time credits. Amended Petition ¶ 18. Tennyson challenged the results of the disciplinary proceeding through the prison grievance process without success. Amended Petition ¶ 19. He then filed this action in federal court.
Tennyson claims that he was denied due process during the disciplinary proceeding. Specifically, he states that he was denied the opportunity to resolve the matter informally, that he was not provided with adequate notice of the charge against him, that he was denied the right to call witnesses or cross-examine the charging officer, that he was wrongfully excluded from the hearing and that he was not provided with an adequate written statement at the conclusion of the hearing. Amended Peition ¶ 20.A-D.
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 credits 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.) (finding that Texas prisoners have no protected liberty interest in early 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 credits, the revocation of such credits 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 heating." 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 recreation and commissary restrictions and his 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 credits. Because he is eligible for release to mandatory supervision, Tennyson has a constitutionally protected liberty interest sufficient to justify the consideration of his claims on the merits. Malchi, 211 F.3d at 958-59.
Tennyson's first ground for relief, that he was denied the right to resolve the matter informally, is without merit. There is no constitutional right to an informal resolution of an alleged prison disciplinary violation. Similarly, Tennyson's claim that he was not provided with adequate notice of the charge against him is without merit. The record reflects that Petitioner was provided with written notice of the charges six days prior to the hearing. Amended Petition ¶ 20.B; Respondent's Answer, Exhibit B, p. l.
Next, Tennyson claims that he was denied due process during the hearing itself. He claims that the hearing officer refused to read the offense report, that he was denied the right to call witnesses, that he was denied the right to question the charging officer and that he was wrongfully excluded from part of the hearing. Petitioner's complaint regarding the reading of the offense report is without merit. There is no constitutional right to have an offense report read aloud in a prison disciplinary hearing. Petitioner received timely written notice of the charge against him which satisfies constitutional due process requirements.
Tennyson's claim that he was denied the right to question the charging officer is without merit. A review of the audio-tape of the hearing reflects that Tennyson provided the hearing officer with a list of proposed questions and was offered the opportunity to ask only those proposed questions that were relevant to the charge against him. Tennyson argued about the questions. He became uncooperative and disruptive. At this point, he was removed from the hearing. Thus, Tennyson's inability to question the charging officer was a problem of his own making and he is not entitled to habeas relief on this ground. For the same reasons, Tennyson's claim that he was wrongfully excluded from the hearing must fail.
Next, Tennyson complains that he was denied the right to call witnesses on his behalf. It is well settled that an inmate's right to call witnesses in a disciplinary action maybe 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). 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).
Tennyson's claim fails to meet these standards. He has failed to identify his uncalled witnesses or demonstrate that any such witness possessed favorable information regarding his case and that he or she would have so testified at the hearing. "Although pro se habeas petitions must be construed liberally, `mere conclusoty 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). Tennyson's conclusory statements alone are insufficient to warrant habeas relief on this ground.
Finally, Tennyson claims that he was not provided with a written statement of the hearing officer as to the evidence relied on and the reasons for the disciplinary action taken. This claim is patently frivolous. The record reflects that, although he refused to sign the document, Tennyson was given a report indicating the evidence relied upon and the reasons for the disciplinary action. Respondent's Answer, Exhibit B, p.l.
To the extent, if any, that Petitioner seeks to challenge the disciplinary hearing officer's finding of guilt, 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). Absent a claim that he has been deprived of some right secured to him by the United States Constitution or laws, Tennyson 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, Petitioner has failed to show that the disciplinary action taken against him was constitutionally infirm.
IT IS THEREFORE ORDERED that the petition for writ of habeas corpus is hereby DENTED.
A copy of this order shall be transmitted to Petitioner and to Counsel for Respondent.