Franklin v. Lucero et al

Filing 36

REPORT AND RECOMMENDATIONS re 1 Petition for 2254 Relief, 24 motion for evidentiary hearing, 30 motion to appoint counsel, and 33 motion for discovery by Magistrate Judge Jerry H. Ritter. Objections to R&R due by 5/24/2022. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (cd)

Case 1:18-cv-01156-JB-JHR Document 36 Filed 05/10/22 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
BRYCE FRANKLIN,
Petitioner,
vs.

No. 18-cv-1156 JB/JHR

DWAYNE SANTISTEVAN 1, Warden, and
HECTOR H. BALDERAS, Attorney
General for the State of New Mexico,
Respondents.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on Petitioner Bryce Franklin’s 28 U.S.C. § 2254
habeas corpus petition [Doc. 1], filed December 3, 2018. Pursuant to 28 U.S.C. § 636(b), presiding
District Judge James O. Browning referred this case to me “to conduct hearings, if warranted,
including evidentiary hearings, and to perform any legal analysis required to recommend to the
Court an ultimate disposition of the case.” [Doc. 3, p. 1]. Having thoroughly reviewed the parties’
submissions and the relevant law, I find that Respondents violated Franklin’s due process rights
and recommend granting habeas relief.
I.

BACKGROUND
Franklin was charged with possession of escape paraphernalia on January 31, 2017, while

in custody. [Doc. 1, pp. 19-20]. After a prison disciplinary hearing on February 22, 2017, he was
sanctioned with, among other things, a loss of 90 days earned good time. [Id., p. 30]. Franklin
exhausted his administrative review and filed a habeas petition in state court on April 26, 2017,
alleging due process violations. [Id., pp. 3, 33; Doc. 15, p. 3]. The state trial court denied relief on

Dwayne Santistevan is the warden for Petitioner Bryce Franklin’s current facility, Lea County Correctional Facility,
and accordingly, replaces Alisha Lucero as a Respondent. [Doc. 18, p. 1, n. 1; see Doc. 14].

1

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June 27, 2017, and the New Mexico Supreme Court denied certiorari on November 28, 2017. [Doc.
1, pp. 3, 33; Doc. 15, pp. 3-4; Doc. 15-1, p. 166]. After the New Mexico Supreme Court denied
Franklin’s motion for reconsideration on December 13, 2017, he filed this federal habeas petition
currently before the Court on December 3, 2018. [See generally Doc. 1; Doc. 15-1, p. 174].
Among the sanctions imposed after the disciplinary hearing, Franklin was transferred to
the Penitentiary of New Mexico to participate in the Predatory Behavior Management Program
(“PBMP”). [Doc. 1, p. 1; Doc. 15, p. 3; Franklin II 2 Doc. 17, p. 2]. By September 29, 2017, he
completed step one of that program and was a week before completing step two when he was “step
regressed” to the beginning of step two. [Franklin II Doc. 17, p. 2]. He filed a separate state habeas
petition on November 8, 2017, challenging the step regression. [Id.]. After dismissal by the trial
court, the New Mexico Supreme Court denied certiorari on December 20, 2018. [Franklin II Doc.
12, p. 3]. Franklin filed a federal habeas petition on the step regression on December 28, 2018.
[See Franklin II Doc. 1]. United States Senior District Judge Martha Vazquez denied that petition
on November 15, 2019. [Franklin II Docs. 18-19].
For this case challenging the original disciplinary hearing process, the Court determined
that the petition should be construed under 28 U.S.C. § 2241 and ordered Respondents to answer.
[Doc. 12, p. 1]. Respondents answered on August 5, 2020, arguing that the petition is subject to
dismissal (1) under the abuse-of-the-writ doctrine or (2) because Franklin received all the process
to which he was entitled. [See generally Doc. 15]. Franklin replied on August 20, 2020. [Doc. 16].
On February 3, 2022, the Court ordered additional briefing on “due process violations stemming
from refusal to produce and review videotapes” [Doc. 28], and both parties complied. [Docs. 29,
31].

2

All citations to “Franklin II” refer to documents filed in the case: No. 1:18-cv-01239-MV-JHR.

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A. Due Process
Franklin was sanctioned for possessing documents 3 deemed to be escape paraphernalia.
[See Doc. 1, p. 30]. Among the claims, he contends that Respondents “refused to review the video
footage[,] stating they ‘didn[’]t have to do that’”, and “[t]he video footage, if reviewed, would
have shown that no cell search occurred, no documents ‘discovered,’ and that the entire misconduct
report is a complete fabrication.” [Doc. 16, p. 7; Doc. 31, p. 2].
Respondents did not provide any justification for their refusal to produce and review the
videotapes nor offer alternatives in lieu of access. Respondents argue the refusal must be deemed
harmless because, regardless of their content, Franklin nevertheless “was not authorized to have
among his belongings paperwork deemed ‘security sensitive[, [sic] possession of which was
considered to be a threat to the security of the institution.’” [Doc. 29, p. 10 (citing Doc. 15-1, p.
44)].
B. Abuse-of-the-Writ
Respondents “submit that even if the petition is not second or successive,” it should be
dismissed under the abuse-of-the-writ doctrine. [Doc. 15, p. 5; See Doc. 15, pp. 7-10]. Respondents
contend that Franklin abused the writ because his challenges to the charge of possession of escape
of paraphernalia (current petition) and the later step regression (Franklin II) both accrued in 2017
well before the filing of either federal petition. [Doc. 15, pp. 8-9]. Respondents say that their initial
showing of abuse shifted the burden to Franklin, who failed to disprove the abuse. [Id., p. 8].
Franklin maintains that he did not abuse the writ because the factual backdrop for Franklin
II happened at a different prison, resulted from different prison officials, and challenges a separate

3

A transport order, an escape flyer, and a memorandum. [Doc. 1, p. 30].

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disciplinary action. [Doc. 16, p. 3]. Additionally, Franklin argues that this petition cannot be
abusive because it was filed before the petition in Franklin II. [Id., p. 5].
II.

STANDARD OF REVIEW
In the Tenth Circuit, a petition that challenges the denial of good time credits constitutes a

challenge to the execution of the sentence and is brought pursuant to 28 U.S.C. § 2241. Franklin
v. Lucero, No. 20-2155, 2021 WL 4595175, at *3 (10th Cir. Oct. 6, 2021) (“Franklin III”) (citing
Hamm v. Saffle, 300 F.3d 1213, 1216 (10th Cir. 2002); McIntosh v. U.S. Parole Comm’n, 115 F.3d
809, 811 (10th Cir. 1997); United States v. Furman, 112 F.3d 435, 438 (10th Cir. 1997)). A
petitioner is entitled to relief under Section 2241 if he can demonstrate that “[h]e is in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). The
federal courts review § 2241 petitions de novo. Franklin III, 2021 WL 4595175, at *3 (citing
Leatherwood v. Allbaugh, 861 F.3d 1034, 1043 (10th Cir. 2017)).
III.

ANALYSIS
a. Due Process
Prisoners possess a liberty interest in earned good time credits and thus are entitled to due

process protections. See Wolff v. McDonnell, 418 U.S. 539, 556-58 (1974); Howard v. U.S. Bureau
of Prisons, 487 F.3d 808, 811 (10th Cir. 2007). However, “[p]rison disciplinary proceedings are
not part of a criminal prosecution, and the full panoply of rights due a defendant in such
proceedings does not apply.” Wolff, 418 U.S. at 556. For a disciplinary hearing involving loss of
good time credits, a prisoner is only entitled to:
(1) advance written notice of the disciplinary charges;
(2) an opportunity, when consistent with institutional safety and correctional goals,
to call witnesses and present documentary evidence in his defense; and
(3) a written statement by the factfinder of the evidence relied on and the reasons
for the disciplinary action.

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Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985) (citing Wolff, 418 U.S. at 56367).
The Tenth Circuit has recognized that the right to call witnesses and present documentary
evidence may be infringed when prison officials unjustifiably refuse to produce and review
videotapes. See Howard, 483 F.3d at 814-15; Crosby v. Fox, 757 F. App’x 673, 678 (10th Cir.
2018). An inmate’s right to evidence may be limited if production would be unduly hazardous to
institutional safety or correctional goals. Howard, 487 F.3d at 814. When institutional concerns
dictate, the prison may provide a summary of videotape evidence in lieu of access. Crosby, 757 F.
App’x at 678 (citing Bogue v. Vaughn, 439 F. App’x 700, 705 (10th Cir. 2011)).
Franklin contends that Respondents refused to produce and review the videotapes because
they “didn[’]t have to do that.” [Doc. 16, p. 7]. Respondents did not provide any other justification
for refusing access nor offer alternatives in lieu of access. Respondents did not explain why
producing the requested videotapes would be unduly hazardous to institutional safety or
correctional goals. Merely stating that they didn’t have to do it is not a proper justification.
Therefore, Franklin’s right to call witnesses and present documentary evidence was infringed by
the Respondents’ unjustified refusal to produce and review the videotapes.
Both parties and the Court agree that this constitutional violation is subject to harmless
error analysis. [See Doc. 29, pp. 6-8; Doc. 31, p. 4]; Howard v. U.S. Bureau of Prisons, No. 043115-RDR, 2010 WL 5392718, at * 2-3 (D. Kan. Dec. 21, 2010); aff’d, 434 F. App’x 731, 732-33
(10th Cir. 2011); see also Crosby, 757 F. App’x at 678. An error is harmless when it appears
beyond a reasonable doubt that the error complained of did not contribute to the result obtained.
Neder v. United States, 527 U.S. 1, 16 (1999) (quoting Chapman v. California, 386 U.S. 18, 24
(1967)).

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Respondents contend that the error must be deemed harmless because Franklin
nevertheless possessed security sensitive documents. [Doc. 29, p. 10]. To the contrary, Franklin
asserts that production or review of the videotapes would demonstrate precisely that the charged
documents were not found during the search of his cell as alleged. Franklin consistently maintains
that the search preceding the discovery of the documents was a “sham,” [Doc. 1, p. 16; Doc. 16,
p. 7; Doc. 31, p. 1], and alleges that “[t]he video footage, if reviewed, would have shown that no
cell search occurred, no documents ‘discovered,’ and that the entire misconduct report is a
complete fabrication.” [Doc. 31, p. 2]. A pro se litigant’s pleadings are to be construed liberally.
Hall v. Bellman, 935 F.2d 1106, 1110 (10th Cir. 1991). Construed liberally, Franklin contends that
the videotapes will show that he did not possess the alleged security sensitive documents.
Possession of escape paraphernalia under Corrections Department regulations can take various
forms 4, but the allegation here was that Franklin physically possessed the offending documents,
whereas Franklin contends that the videotapes will show no possession. If the videotapes portray
the search in its entirety, and if that portrayal does not include the discovery of the documents,
then the videotapes would be material evidence that the Respondents’ version is false. Due to the
importance of possession to the charge, it does not appear beyond a reasonable doubt that refusal
to produce the videotapes did not contribute to Franklin’s sanctions. Therefore, the constitutional
violation is not harmless.
For the above reasons, I find that Respondents infringed Franklin’s due process rights and
that the error is not harmless. Because the videotapes may support or contradict Franklin’s
contentions, I recommend setting aside the disciplinary adjudication and remanding the matter to

Possession of Escape Paraphernalia is an A(13) charge that is defined as “[h]aving in possession, or receiving from
or giving to another inmate, or fashioning or manufacturing, or introducing or arranging to introduce into the facility,
any escape paraphernalia, including but not limited to . . .“ [See Doc. 1, p. 19].
4

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the facility for a new hearing within ninety (90) days of the entry of this Order. See Johnson v.
Brown, 681 F. App’x 494, 497 (7th Cir. 2017) (“We therefore remand the case to the district court
to first determine whether the video file still exists. If it does exist, [the petitioner] is entitled to
disclosure . . . and a disciplinary hearing that complies with Wolff. If the file does not exist, [the
petitioner’s] good-time credit and credit-earning class must be restored.”); see also Hudson v.
Ward, 124 F. App’x 599, 601 (10th Cir. 2005) (Mentioned that the district court ordered the facility
to submit an investigative report); Gaines v. Stenseng, No. Civ.A. 01-3405-SAC, 2005 WL
2219319, at *2 (D. Kan. Sept. 13, 2005) (Mentioned that the state trial court remanded the matter
to the facility for new hearings in disciplinary actions). If the facility fails to hold a new hearing
that complies with Wolff, I recommend restoring Franklin’s good time credits.
b. Abuse-of-the-Writ
Respondents alternatively argue that Franklin abused the writ because he filed the current
petition and Franklin II separately. [Doc. 15, pp. 8-9]. “The doctrine of abuse of the writ defines
the circumstances in which federal courts decline to entertain a claim presented for the first time
in a second or subsequent petition for a writ of habeas corpus.” McCleskey v. Zant, 499 U.S. 467,
470 (1991). Any claim that could have been, but was not, raised in an earlier petition is
presumptively an abuse of the writ unless the petition demonstrates “cause” for the failure to raise
the claim earlier and “actual prejudice” resulting from the claimed error. Daniels v. United States.,
254 F.3d 1180, 1189-90 (10th Cir. 2001). For “cause,” a petitioner may show that his efforts to
raise the claim at earlier stages were “impeded” by “some objective factor external to the defense.”
Id. at 1189 (internal citation omitted). For example, cause is satisfied where “the factual or legal
basis for a claim was not reasonably available” during earlier proceedings. Id. (internal citation
omitted). The requirement of cause is based on the principle that the petitioner must conduct a

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reasonable and diligent investigation aimed at including all relevant claims and grounds for relief
in the first federal habeas petition. Andrews v. Deland, 943 F.2d 1162, 1176 (10th Cir. 1991) (citing
McCleskey, 499 U.S. at 490).
The abuse-of-the-writ doctrine does not apply on these facts. “The doctrine of abuse of the
writ defines the circumstances in which federal courts decline to entertain . . . a second or
subsequent petition.” McCleskey, 499 U.S. at 470. The current petition is not “second or
subsequent”: it was filed in federal court before the petition that was resolved as Franklin II. See
supra p. 2. Respondents cite three cases and argue that the sequence of filing does not matter.
[Doc. 15, p. 9; see Doc. 15, p. 9, n. 11]. However, none of them are on point. 5 This petition is
“second or subsequent” only with regard to the order in which the federal court will resolve it, a
circumstance beyond the control of Franklin. “[A]buse-of-the-writ principles limit a petitioner’s
ability to file repetitive petitions”, McCleskey, 499 U.S. at 483, but the first petition filed could not
be repetitive.
Even if the abuse-of-the-writ doctrine could apply to first petitions, Franklin could not have
included his Franklin II claims when he filed this because he had not exhausted 6 his state remedies
for the Franklin II claims. 7 Even under the more stringent § 2244(b) standard, courts sometimes

The quoted language “it is well settled that the phrase second or successive does not simply refer to all habeas
applications filed second or successive in time” and “chronology here is by no means all” are out of context because
all three cited cases considered whether a second in time petition is a “second or successive application” under 28
U.S.C. § 2244(d). See Magwood v. Peterson, 561 U.S. 320, 330-34 (2010); Panetti v. Quarterman, 551 U.S. 930, 94248 (2007); Banister v. Davis, 140 S.Ct. 1698, 1704 (2020). None of them considered whether a first in time petition
is subject to the abuse-of-the-writ doctrine.
5

Franklin filed the current habeas petition on December 3, 2018; Franklin II was not resolved in the state courts until
December 20, 2018. [Doc. 1; Franklin II Doc. 12, p. 3].
6

To the extent that Respondents argue that Franklin should raise the underlying state petitions together, external facts
prevented him from combining the claims, namely, the facts underlying Franklin II had not yet occurred when the
state habeas petition was filed that led to this petition. Daniels, 254 F.3d at 1189; [Doc. 1, pp. 3, 33 (current state
habeas petition was filed on April 26, 2017); Franklin II Doc. 17, p. 2 (facts underlying Franklin II occurred on
September 29, 2017)].
7

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allowed a second application on newly ripened claims. See Slack v. McDaniel, 529 U.S. 473, 478
(2000) (declining to apply § 2244(b) to a second application where the District Court dismissed
the first application for lack of exhaustion); Steward v. Martinez-Villareal, 523 U.S. 637, 654
(1998) (treating a second application as part of a first application where it was premised on a newly
ripened claim that had been dismissed from the first application as premature). Franklin was at risk
of losing federal review on this petition due to the 1-year limitation period because the New
Mexico Supreme Court denied certiorari on November 28, 2017, and denied the motion for
reconsideration on December 13, 2017. See supra p. 2. Therefore, external facts prevented him
from combining the claims at the time of the filing. See Daniels, 254 F.3d at 1189. Furthermore,
the subject matter of the two petitions is not related in any material way: this petition challenges
a disciplinary sanction for possessing documents deemed to be escape paraphernalia in one prison,
whereas Franklin II challenges a step regression based on an independent event in another prison.
Franklin would suffer actual prejudice 8 if he is deprived of adjudication on a separate claim
involving different rules and facts and seeking a different remedy. If the abuse of the writ doctrine
applies, it does not prevent federal review because Franklin demonstrated cause for this
independent filing and actual prejudice if review is denied.
IV.

RECOMMENDATION
For the above reasons, I find that Respondents violated Franklin’s due process rights and

recommend that the Court SET ASIDE the disciplinary adjudication and sanction and REMAND
the matter to the facility for a new hearing within ninety (90) days of the entry of this Order. If the

8
Respondents say the test for prejudice is whether there is “actual prejudice that has substantially disadvantaged the
petitioner, infecting his entire proceeding with error of constitutional dimensions.” [Doc. 15, p. 8 (citing United States
v. Frady, 456 U.S. 152, 170 (1982)] (internal citation omitted). However, this test only applies in the context of jury
instructions, and Frady explicitly states “the term [prejudice] in other situations . . . remains an open question.” 456
U.S. at 168.

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facility fails to hold a new hearing that complies with Wolff, I recommend that the Court
RESTORE Franklin’s good time credits.
If the Court adopts these recommendations, I further recommend that Franklin’s motions
for evidentiary hearing [Doc. 24], to appoint counsel [Doc. 30], and for discovery [Doc. 33], be
denied as moot.

_______________________________
JERRY H. RITTER
UNITED STATES MAGISTRATE JUDGE
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of
a copy of these Proposed Findings and Recommended Disposition, they may file written objections
with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1).
A party must file any objections with the Clerk of the District Court within the fourteen-day
period if that party wants to have appellate review of the proposed findings and
recommended disposition. If no objections are filed, no appellate review will be allowed.

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