Haigler v. Chappius

Filing 19

DECISION AND ORDER denying Petitioners application for a writ of habeas corpus and dismissing the petition. (Clerk to close case.) (Copy of this Decision and Order sent by first class mail to Petitioner.) Signed by Hon. Michael A. Telesca on 11/8/2017. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ROBERT HAIGLER,
Petitioner,
No. 15-CV-00780(MAT)
DECISION AND ORDER

-vsP. CHAPPIUS, JR.,
Respondent.

I.

Introduction
Pro se petitioner Robert Haigler(“petitioner” or “Haigler”)

seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

After

a disciplinary hearing, petitioner, who was then confined at the
Attica Correctional Facility, was found guilty of violating certain
rules governing inmate behavior, and was initially penalized with
six months confinement in the Special Housing Unit (the “SHU”), six
months loss of visitation, packages, telephone, and commissary
privileges, and three months loss of good time.

Following a

proceeding brought pursuant to Article 78 of New York’s Civil
Practice Law and Rules (“Article 78"), the Appellate Division,
Third Department (the “Appellate Division”) affirmed the guilty
determination

as

to

certain

of

the

charges

but

annulled

the

determination as to other charges, and remitted the matter to the
Department of Corrections and Community Supervision (“DOCCS”) for
redetermination of the penalty.

In accordance with the Appellate

Division’s order, DOCCS redetermined petitioner’s penalty, and

imposed three months of confinement in the SHU; four months and 26
days loss of packages, commissary, and telephone privileges; two
months loss of good time; and six months loss of visitation.
In

the

instant

petition,

petitioner

alleges

various

due

process violations in connection with the disciplinary hearing
underlying

the

aforementioned

punishment.

In

particular,

he

alleges that DOCCS failed to expunge and improperly relied on a
misbehavior report from January 2013, did not timely commence the
disciplinary hearings, failed to authenticate fellow inmate Gregory
Williams’ refusal to testify, refused to permit him to call certain
witnesses, refused to disclose certain phone records, and violated
New York State regulations by delaying in issuing the misbehavior
report.
did

Petitioner also alleges that the evidence at the hearing

not

support

the

charges

and

that

DOCCS’

disciplinary

determination was barred by the doctrine of res judicata.

For the

reasons discussed at length below, the Court determines that
petitioner is not entitled to relief and therefore denies the
petition.
II.

Factual Background and Procedural History
Petitioner is currently serving an aggregate term of 20 years

in prison, having been convicted of three counts of robbery in the
first degree and sentenced as a second felony offender.
January

30,

2013,

while

he

was

incarcerated

at

the

On

Attica

Correctional Facility (“Attica”), petitioner was served with a

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misbehavior reported dated January 29, 2013, in which it was
alleged that petitioner had violated rules of inmate behavior
governing drugs, smuggling, third-party phone calls, exchanging
personal identification numbers (“PINs”), and visitation.

DOCCS

Investigator J. Spengler, the report’s author, stated that an
ongoing investigation had revealed that petitioner was misusing the
inmate phone system, including by making three-way calls and
exchanging PINS, to conspire with four individuals (Dejah Burnette,
Jamel Ragster, Barbara Ward, and Precious Bailey) to purchase,
obtain,

provide,

package,

and

smuggle

drugs

into

Attica.

Investigator Spengler further reported that the investigation had
been conducted by DOCCS’ Inspector General’s Office and that the
allegations

against

petitioner

were supported

by

confidential

information.
On

January

30,

2013,

DOCCS

Captain

Coveny,

the

hearing

officer, commenced a Tier III disciplinary hearing related to the
misbehavior
hearing,

to

report.
permit

Captain

Coveny

petitioner

subsequently

time

to

adjourned the

prepare

a

defense.

Additional extensions of time were granted on February 5th, 6th, and
9th.
The hearing reconvened on February 12, 2013, at which time the
hearing officer advised petitioner of his rights and obligations
and read the misbehavior report into the record.
not guilty to the charges against him.

-3-

Petitioner pled

Captain Coveny informed petitioner that the investigation into
his

activities

had

commenced

on

finalized on January 28, 2013.

December

11,

2012,

and

was

Petitioner testified that none of

his visitors had been found with contraband and that he believed
the matter had been resolved by an earlier order barring visits for
petitioner.

Investigator Spengler provided both confidential and

non-confidential testimony.

She stated that, during the course of

her investigation, she had reviewed confidential documentation
establishing that petitioner had used inmate Charles Cherry’s PIN
to place telephone calls.

Investigator Spengler further testified

that she had monitored petitioner’s phone calls and discovered that
he was conspiring to smuggle drugs into Attica.
Investigator
contraband

Spengler
introduced

whether
into

she

the

had

Petitioner asked

personally

facility.

seen

Captain

any

Coveny

interrupted Investigator Spengler’s answer to this question, to
which petitioner objected.

Captain Coveny explained that he

believed Investigator Spengler was referring to an early, expunged
misbehavior report, and that he was trying to protect petitioner’s
rights.
Petitioner requested that the charges be dismissed based on
Investigator
report.

Spengler’s

reference

to

the

expunged

misbehavior

Captain Coveny informed petitioner that the expunged

misbehavior

report

was

not

part

of

the

record

and

that

determination would be based only on the record before him.

-4-

his

Petitioner requested that Inmate Gregory Williams testify on
his behalf.

However, Mr. Williams had signed a refusal form

indicating that he did not want to be involved in the hearing.
Petitioner told the hearing officer that Mr. Williams had verbally
agreed to testify, and the hearing officer agreed to speak with
Mr. Williams.

The record shows that Mr. Williams did not testify

at petitioner’s hearing.

Mr. Cherry did testify, and denied

giving his PIN to petitioner.
Petitioner

also

requested

permission

to

call

the

four

individuals mentioned in the misbehavior report as his alleged coconspirators.

The hearing officer determined that it would be

unnecessarily duplicative to allow petitioner to call all of these
individuals, but stated that he would allow petitioner to call one
of them.

Petitioner initially elected to call his mother, but

after further consideration he ultimately withdrew his request to
have any of these individuals testify.
Petitioner requested a copy of Mr. Cherry’s phone log.

The

hearing officer told petitioner he would review the phone log and
determine whether it was confidential.

He further explained that

if he determined that the phone log was not confidential (and thus
disclosable), he would provide petitioner with a copy when the
hearing

reconvened

the

following

day.

The

hearing

officer

ultimately did not provide petitioner with a copy of Mr. Cherry’s

-5-

phone log, finding that doing so would endanger the security of the
facility.
On February 13, 2013, Captain Coveny issued a disposition
finding petitioner guilty of having violated the rules related to
drugs, smuggling, third-party phone calls, exchanging PINs, and
visitation.
SHU,

six

He imposed a penalty of six months confinement in the

months

loss

of

packages,

telephone,

and

commissary

privileges, six months loss of visitation, and three months loss of
good

time.

On

administrative

review,

the

determination

was

affirmed, but the penalty was discretionarily changed to four
months and 26 days confinement in the SHU, four months and 26 days
loss of packages, telephone, and commissary privileges, six months
loss of visitation, and three months loss of good time.
Petitioner challenged the determination in an Article 78
proceeding originally commenced in New York State Supreme Court,
Franklin County, and subsequently transferred to the Appellate
Division.

On July 24, 2014, the Appellate Division entered a

Memorandum and Judgement affirming the guilty disposition as to the
charges of making third-party phone calls and exchanging PINs, but
annulling it as to the other charges.

The Appellate Division

directed DOCCS to expunge all references to the annulled charges in
petitioner’s institutional file and to redetermine the appropriate
penalty for the remaining charges.

-6-

Petitioner sought leave to

appeal to the New York Court of Appeals, which was denied on
October 28, 2014.
On August 1, 2014, DOCCS reviewed the matter and imposed a
penalty of three months confinement in the SHU, four months and 26
days loss of packages, telephone, and commissary privileges, two
months loss of good time, and six months loss of visitation.

The

penalty was affirmed on administrative appeal.
Petitioner filed the instant petition on August 31, 2015.
set

forth

above,

he

makes

various

allegations

regarding

As
the

propriety of DOCCS’ handling of the misbehavior report and conduct
of the disciplinary hearing.

Specifically, he contends that his

rights to due process were violated because DOCCS failed to expunge
and improperly relied on a misbehavior report from January 2013,
did not timely commence the disciplinary hearings, failed to
authenticate Mr. Williams’ refusal to testify, refused to permit
him to call his alleged co-conspirators as witnesses, refused to
disclose Mr. Cherry’s phone log, and violated New York State
regulations in issuing the misbehavior report.

Petitioner further

claims that the evidence at the hearing did not support the charges
and that DOCCS’ disciplinary determination was barred by the
doctrine of res judicata.

For the following reasons, the Court

determines that petitioner is not entitled to habeas relief.

-7-

III. Discussion
A.

Cognizability of Petitioner’s Claims

Title 28, Section 2254 “is explicit that a federal court is to
entertain an application for a writ of habeas corpus ‘only on the
ground that [the petitioner] is in custody in violation of the
Constitution

or

laws

or

treaties

of

the

United

States.’”

Wainwright v. Goode, 464 U.S. 78, 83-84 (1983) (quoting 28 U.S.C.
§ 2254(a)), reh’g denied, 423 U.S. 1092 (1984).

Challenges to the

validity of prison administrative actions that affect the fact or
length of the prisoner’s confinement are properly brought under 28
U.S.C. § 2254. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)
(holding that “when a state prisoner is challenging the very fact
or duration of his physical imprisonment, and the relief he seeks
is a determination that he is entitled to immediate release or a
speedier release from that imprisonment, his sole federal remedy is
a writ of habeas corpus”); see also Poventud v. City of N.Y., 750
F.3d 121, 128 (2d Cir. 2014) (noting that Preiser “declined to
recognize a distinction where the [prisoner’s] challenge [to his
imprisonment] was to a final administrative decision”) (citing
Preiser, 411 U.S. at 489).
However,

as

the

Second

Circuit

has

observed,

“many

intra-prison administrative or disciplinary decisions that could
result in deprivations in violation of the Constitution do not
affect the fact or length of a prisoner’s confinement[,]” Jenkins
-8-

v.

Haubert,

179

F.3d

19,

23

(2d

Cir.

1999).

These

include

“placement in solitary confinement or keeplock, . . . or some other
form of confinement more restrictive than that imposed on the
general

prison

decisions

do

population.”

not

affect

the

Id.
fact

Because
or

length

such
of

disciplinary
a

prisoner’s

confinement, they are not cognizable under § 2254.
The Second Circuit did acknolwedge in Jenkins that Preiser
“left open

the

question

of

whether

federal

habeas

corpus

is

available to prisoners who challenge decisions imposing restrictive
conditions

of

confinement."

Jenkins,

179

F.3d

at

23

(citing

Preiser, 411 U.S. at 499 ("When a prisoner is put under additional
and unconstitutional restraints during his lawful custody, it is
arguable that habeas corpus will lie to remove the restraints
making

the

custody

illegal.")).

Although

this

dictum

has

engendered much discussion in the circuit courts, see id. (citing
cases), the law governing a habeas petitioner's claims is limited
to the holdings, not dicta, of the Supreme Court. See Tueros v.
Greiner, 343 F.3d 587, 593-94 (2d Cir. 2003) (dicta in Supreme
Court decision was not clearly established federal law that could
form basis for habeas relief under Antiterrorism and Effective
Death Penalty Act, 28 U.S.C. § 2254(d)(1)) (citing Williams v.
Taylor, 529 U.S. 362, 412 (2000)).
Here, the punishment imposed on petitioner following the
adverse disciplinary hearing was three months of confinement in the
-9-

SHU; four months and 26 days loss of packages, commissary, and
telephone privileges; two months loss of good time; and six months
loss of visitation.

The loss of good time credits may impact the

fact or overall length of petitioner’s confinement, and, to the
extent he seeks to restore those good-time credits, his claim is
cognizable under § 2254.

However, to the extent that petitioner’s

claims are based on his confinement to the SHU or his loss of
various

privileges,

challenges

to

the

imposition

of

those

punishments are not cognizable as a habeas claim. See, e.g., Green
v. Bradt, 2012 WL 130274 (W.D.N.Y. Jan. 17, 2012) (dismissing as
not cognizable habeas claims regarding prison disciplinary hearing
that resulted in keeplock confinement because punishment did not
affect the overall length of petitioner’s confinement); see also
Welch v. Mukasey, 589 F. Supp.2d 178, 183 n.3 (N.D.N.Y. 2008) (SHU
confinement); Green v. Duncan, 2007 WL 781927, at *2-3 (N.D.N.Y.
Mar. 13, 2007) (keeplock and loss of privileges); H’Shaka v.
Conway, 2006 WL 1418601, at *2 (S.D.N.Y. May 22, 2006) (SHU
confinement).

Accordingly,

petitioner’s

challenges

to

the

imposition of any punishment other than the loss of good-time
credits are denied.
B.

Analysis of Petitioner’s Claims
1.

Standard of Review

“Under the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), 28 U.S.C. § 2254(d)(1), a federal court may not grant
-10-

a

state

prisoner’s

habeas

application

unless

the

relevant

state-court decision was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States.”

Knowles v. Mirzayance,

556 U.S. 111, 121 (2009) (internal quotation omitted).

“The

question is ‘not whether the state court was incorrect or erroneous
in rejecting petitioner’s claim, but whether it was objectively
unreasonable in doing so.’”

Edwards v. Superintendent, Southport

C.F., 991 F. Supp. 2d 348, 367 (E.D.N.Y. 2013) (quoting Ryan v.
Miller, 303 F.3d 231, 245 (2d Cir. 2002)).

“The petition may be

granted only if ‘there is no possibility fairminded jurists could
disagree that the state court’s decision conflicts with [the
Supreme] Court’s precedents.’” Id. (quoting Harrington v. Richter,
562 U.S. 86, 102 (2011)).
2.

Res Judicata

As a threshold issue, petitioner contends that the challenged
prison disciplinary hearing was barred by the doctrine of res
judicata.

In particular, he argues that the dismissal of a prior

misbehavior report charging him with drug possession barred the
proceedings that ultimately resulted in the loss of his good-time
credits.
Petitioner’s claim based on the doctrine of res judicata
“fails to raise an issue of federal law, which is an essential
prerequisite to habeas relief.”

U.S. ex rel. Roche v. Scully, 739

-11-

F.2d 739, 741 (2d Cir. 1984).

Petitioner’s papers are clear that

his res judicata argument is based on New York law.

See, e.g.,

Docket No. 11 at 6 (contending that “subsequent litigation of [the]
alleged incident should be barred under New York law”) (emphasis
added).

Claims based on state law are “not cognizable on federal

habeas review.”

Saracina v. Artus, 452 F. App’x 44, 46 (2d Cir.

2011).
Petitioner’s factual claims could perhaps be read as making an
argument based on the Fifth Amendment’s prohibition against double
jeopardy.

The Court notes, however, that petitioner expressly

denies that he is making a double jeopardy argument.
No.

11

at

jeopardy”).

6

(“res

judicat[a]

is

the

argument,

See Docket
not

double

Moreover, even considering the claim on the merits,

petitioner has not shown that he was improperly subjected to double
jeopardy.
The Fifth Amendment provides that “[n]o person shall be . . .
subject for the same offence to be twice put in jeopardy of life or
limb.” The double jeopardy clause “protects individuals from three
types of violations: (1) a second prosecution after acquittal for
the same offense, (2) a second prosecution after conviction for the
same offense, and (3) multiple punishments for the same offense.”
Porter v. Coughlin, 421 F.3d 141, 144 (2d Cir. 2005).

It is well-

established that “the double jeopardy clause . . . is inapplicable
to prison disciplinary proceedings.”

LeBron v. Artus, 2008 WL

111194, at *6 (W.D.N.Y. Jan. 9, 2008).

As such, petitioner cannot

maintain his claim on the basis of the double jeopardy clause.

-12-

3.

Due Process

Turning to petitioner’s due process claims, it is important to
note as a general matter that a prison inmate facing a disciplinary
proceeding

is

not

entitled

to

““the

full

panoply

of

afforded to the defendant in a criminal prosecution.”
McDonnell, 418 U.S. 539, 556 (1974).

rights”
Wolff v.

Instead, in a disciplinary

hearing, “[i]nmates are entitled to advance written notice of the
charges;

a

fair

and

impartial

hearing

officer;

a

reasonable

opportunity to call witnesses and present documentary evidence; and
a written statement of the disposition, including supporting facts
and reasons for the action taken.”
(2d Cir. 2004).

Luna v. Pico, 356 F.3d 481, 487

On review, the Court must consider whether there

was “reliable evidence” of the inmate’s guilt.
a.

Id.

Reliance on Dismissed Misbehavior Report

Petitioner argues that his right to due process was violated
because the hearing officer relied on the allegations set forth in
a dismissed misbehavior report in disposing of the charges against
petitioner.

Petitioner has failed to point to any evidence in the

record supporting this argument.
officer

expressly

informed

To the contrary, the hearing

petitioner

that

the

dismissed

misbehavior report was not a part of the record and that it would
not be considered in reaching his determination. This Court is not
required to credit allegations by petitioner that “are contradicted
by

the

record

in

the

underlying

proceeding.”

United States, 586 F.3d 209, 214 (2d Cir. 2009).

-13-

Puglisi

v.

Moreover, petitioner has pointed to no Supreme Court precedent
establishing that it is a due process violation for a hearing
officer to reference a dismissed misbehavior report.

Nor can the

Court conclude that the Appellate Division’s denial of petitioner’s
claim was an unreasonable application of established law regarding
due process.

The Supreme Court has made it clear that “[habeas]

relief is available under . . . [the] unreasonable-application
clause if, and only if, it is so obvious that a clearly established
rule applies to a given set of facts that there could be no
fairminded disagreement on the question.” White v. Woodall, 134 S.
Ct.

1697,

1706–07

(2014)

(internal

quotation

omitted).

Petitioner’s argument fails far short of this standard, and he is
therefore not entitled to relief.
b.

Untimely Commencement of Proceeding

Petitioner also contends that his prison disciplinary hearing
was

untimely

under

7

N.Y.C.R.R.

§

251-5.1.

To

the

extent

petitioner’s claim is based on the alleged violation of New York’s
regulatory scheme, it is not cognizable on federal habeas review.
See Saracina, 452 F. App’x at 46.
Petitioner also has not established that he is otherwise
entitled to habeas relief on this claim.

As a threshold issue,

petitioner failed to argue in his Article 78 petition that the
allegedly

untimely

commencement

violated his right to due process.

of

the

disciplinary

hearing

It is well-established that a

state inmate who seeks federal habeas review must first exhaust his
available state court remedies.

28 U.S.C. § 2254(b)(1).

-14-

This is

so because “interests of comity and federalism dictate that state
courts must have the first opportunity to decide a petitioner’s
claims.”

Rhines v. Weber, 544 U.S. 269, 273 (2005).

“In order to

satisfy the exhaustion requirement, a habeas petitioner must give
the state courts a fair opportunity to review the federal claim and
correct any alleged error.”

Ortiz v. Heath, 2011 WL 1331509, at *6

(E.D.N.Y. Apr. 6, 2011).
A claim may be deemed exhausted where further review is
procedurally barred under state law.

See id. (“[B]ecause the

exhaustion requirement ‘refers only to remedies still available at
the time of the federal petition, it is [also deemed] satisfied if
it

is

clear

procedurally
Netherland,

that
barred

518

U.S.

the

habeas

under
152,

petitioner's

state
161

law.’”)

(1996)).

claims

are

now

(quoting

Coleman

However,

“[w]here

v.
a

procedural bar gives rise to exhaustion . . . it also ‘provides an
independent and adequate state-law ground for the conviction and
sentence, and thus prevents federal habeas corpus review of the
defaulted claim.’” Id. (quoting Netherland, 518 U.S. at 162). “For
a procedurally defaulted claim to escape this fate, the petitioner
must show cause for the default and prejudice, or demonstrate that
failure to consider the claim will result in a miscarriage of
justice, (i.e., the petitioner is actually innocent).” Aparicio v.
Artuz, 269 F.3d 78, 90 (2d Cir. 2001).
Here, petitioner did not raise this claim before the state
court, and his time for doing so has expired.

See Abreu v. Lempke,

2013 WL 3475304, at *10 (N.D.N.Y. July 10, 2013) (noting New York

-15-

statute

of

limitations

related

to

Article

78

proceedings).

Accordingly, his claim based on the allegedly untimely commencement
of his proceeding is barred from federal habeas review unless he
can demonstrate both cause and prejudice, or actual innocence.
Petitioner

cannot

meet

this

high

bar.

First,

his

claim

is

meritless, and there is therefore no prejudice. “[D]ue process for
an inmate disciplinary hearing does not encompass a right to a
speedy hearing.” Barnes v. Henderson, 628 F. Supp. 2d 407, 411
(W.D.N.Y. 2009).

Second, there is no support in the record for the

conclusion that petitioner is actually innocent of the charges
against

him,

such

that

miscarriage of justice.

there

is

a

danger

of

a

fundamental

Accordingly, petitioner’s claim based on

the allegedly untimely commencement of his disciplinary hearing
does not entitle him to habeas relief.
c.

Mr. Williams’ Refusal to Testify

Petitioner’s next argument is that he was denied due process
because the hearing officer did not verify that Mr. Williams in
fact did not want to testify.

Petitioner has failed to establish

that the Appellate Division’s rejection of this argument was either
contrary to or an unreasonable application of established federal
law.

To the contrary, courts in this Circuit have previously

concluded that “[a] hearing officer does not have to conduct an
independent investigation before accepting an inmate-witness’s
refusal to testify.”

Johnson v. Doling, 2007 WL 3046701, at *7

(N.D.N.Y. Oct. 17, 2007).

Accordingly, the Court finds that

petitioner’s claim based on the hearing officer’s alleged failure

-16-

to

investigate

Mr.

Williams’

signing

of

the

refusal

form

is

meritless.
d.

Refusal to Call Witnesses

Petitioner argues that he was denied due process because the
hearing officer refused to call his four alleged co-conspirators as
witnesses.
Division’s

Again, petitioner has not shown that the Appellate
rejection

of

this

argument

was contrary

to

or

an

unreasonable application of established federal law.
“The

Supreme

Court

has

stated

that

disciplinary

hearing

officers must have the discretion to deny witnesses, noting that
valid bases for the denial of witnesses would include irrelevance,
lack of necessity, and other hazards particular to each case.”
Phelan v. Superintendent of the Great Meadow Corr. Facility, 2012
WL 1190169, at *6 (W.D.N.Y. Apr. 9, 2012).

Here, the hearing

officer reasonable concluded that it would be unnecessary and
redundant for petitioner to call all four of his alleged coconspirators as witnesses, but agreed to let petitioner call one of
them.

Petitioner ultimately declined to do so and withdrew his

request to call any of the four.

Under these circumstances, the

Court cannot conclude that any due process violation occurred. See,
e.g., Russell v. Selsky, 35 F.3d 55, 58 (2d Cir. 1994) (no due
process violation where hearing officer excluded witnesses on the
basis that their testimony would be duplicative or non-probative).
e.

Failure to Disclose Phone Records

Petitioner’s next contention is that he was denied due process
because the hearing officer did not disclose Mr. Cherry’s phone

-17-

logs to him.

Again, the Court concludes that the Appellate

Division’s rejection of this claim comported with established
federal law.
“Courts have long recognized . . . that the right to know
evidence supporting prison disciplinary rulings is not absolute.
As the Supreme Court has observed, prison disciplinary proceedings
take place in tightly controlled environments peopled by those who
have been unable to conduct themselves properly in a free society.
The risks of violence or intimidation directed at either other
inmates or staff are real. Thus, when the disclosure of evidence
presents such risks, hearing officers may properly decline to
inform an inmate of the adverse evidence.”

Sira v. Morton, 380

F.3d 57, 74–75 (2d Cir. 2004) (internal citations and quotations
omitted).

When an inmate is denied evidence on the basis of safety

concerns, all that is required is that the hearing officer provide
a reasonable justification for his or her actions. Id.
Here, the hearing officer examined the phone log, which had
been marked “confidential” by the investigators, and found on the
record that disclosing its contents to petitioner would jeopardize
the safety and security of the facility.

The hearing officer’s

actions complied with established federal law, and petitioner has
not shown that his right to due process was violated.
f.

Delay in Issuing Report

Petitioner argues that he was denied due process because there
was allegedly an unexplained delay in issuance of the misbehavior
report.

This

claim

is

factually

-18-

belied

by

the

record.

Investigator

Spengler

testified

that

her

investigation

was

finalized on January 28, 2013, and the misbehavior report was
completed on January 29, 2013.

Moreover, petitioner’s claim fails

as a matter of law.
First, to the extent petitioner’s claim is based on the
alleged violation of New York law, as discussed above, it is not
cognizable

on

federal

habeas review.

Second,

to

the

extent

petitioner is alleging he was denied due process, petitioner did
not raise this argument before the Appellate Division, and it is
therefore

procedurally

barred.

Petitioner

cannot

show

any

prejudice related to this claim because, as previously noted, the
record in this case shows that the misbehavior report was completed
one day after Investigator Spengler’s investigation was finalized.
Petitioner also has offered no evidence from which the Court could
conclude there was any danger of a fundamental miscarriage of
justice.

Accordingly, petitioner has failed to show that he is

entitled to habeas relief as to this claim.
g.
Petitioner’s

Sufficiency of the Evidence
final

claim

is

that

there

evidence to support the charges against him.

was

insufficient

Because the only two

charges on which petitioner was ultimately determined to be guilty
were that he violated the rules governing third-party phone calls
and exchanging PINs, the Court limits its consideration to these
two issues.
The

Supreme

Court

has

explained

that

“[t]he

Federal

Constitution does not require evidence that logically precludes any
conclusion but the one reached by the disciplinary board. Instead,
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due process in this context requires only that there be some
evidence to support the findings made in the disciplinary hearing.”

Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472
U.S. 445, 457 (1985).

Thus, even if the evidence is “meager” or

indirect, federal due process requirements are satisfied so long as
“the record is not so devoid of evidence that the findings . . .
were without support or otherwise arbitrary.”

Id.

Here, the evidence presented at the hearing was plainly
sufficient

to

support

the

charges

against

plaintiff.

In

particular, the misbehavior report and Investigator Spengler’s
testimony both tended to show that the charges against plaintiff
were

substantiated.

misbehavior

reports

Courts
based

in

on

this

personal

standing alone, to establish guilt.

Circuit

have

knowledge

held

are

that

enough,

See, e.g., Simon v. Selsky,

2002 WL 1205737, at *4 (S.D.N.Y. Mar. 12, 2002).

Here, the

misbehavior report was corroborated by Investigator Spengler’s
testimony.

Accordingly, there is no merit to petitioner’s claim

that the evidence against him was insufficient.
IV.

Conclusion
For the foregoing reasons, Petitioner’s application for a writ

of habeas corpus is denied, and the petition is dismissed. Because
Petitioner has not “made a substantial showing of the denial of a
constitutional right,” 28 U.S.C. § 2253(c)(2), the Court declines
to

issue

a

certificate

of

appealability.

The

Court

further

certifies, pursuant to 28 U.S.C. § 1915(a)(3) and FED. R. APP. P.

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24(a)(3), that any appeal from this Decision and Order would not be
taken in good faith, and therefore leave to appeal in forma
pauperis is denied. See Coppedge v. United States, 369 U.S. 438,
445-46 (1962).

The Clerk of the Court is instructed to close this

case.
ALL OF THE ABOVE IS SO ORDERED.

s/Michael A. Telesca
__________________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

Rochester, New York
November 8, 2017

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