Haigler v. Chappius
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
DECISION AND ORDER
-vsP. CHAPPIUS, JR.,
Pro se petitioner Robert Haigler(“petitioner” or “Haigler”)
seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
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.
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 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.
process violations in connection with the disciplinary hearing
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
Petitioner also alleges that the evidence at the hearing
determination was barred by the doctrine of res judicata.
reasons discussed at length below, the Court determines that
petitioner is not entitled to relief and therefore denies the
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.
Correctional Facility (“Attica”), petitioner was served with a
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.
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,
Investigator Spengler further reported that the investigation had
been conducted by DOCCS’ Inspector General’s Office and that the
officer, commenced a Tier III disciplinary hearing related to the
Additional extensions of time were granted on February 5th, 6th, and
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.
Captain Coveny informed petitioner that the investigation into
finalized on January 28, 2013.
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
Investigator Spengler provided both confidential and
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.
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
Petitioner requested that the charges be dismissed based on
Captain Coveny informed petitioner that the expunged
determination would be based only on the record before him.
Petitioner requested that Inmate Gregory Williams testify on
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
The record shows that Mr. Williams did not testify
at petitioner’s hearing.
Mr. Cherry did testify, and denied
giving his PIN to petitioner.
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
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.
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
ultimately did not provide petitioner with a copy of Mr. Cherry’s
phone log, finding that doing so would endanger the security of the
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
He imposed a penalty of six months confinement in the
privileges, six months loss of visitation, and three months loss of
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
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.
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.
penalty was affirmed on administrative appeal.
Petitioner filed the instant petition on August 31, 2015.
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.
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.
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
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).
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
“placement in solitary confinement or keeplock, . . . or some other
form of confinement more restrictive than that imposed on the
confinement, they are not cognizable under § 2254.
The Second Circuit did acknolwedge in Jenkins that Preiser
available to prisoners who challenge decisions imposing restrictive
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
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
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
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
imposition of any punishment other than the loss of good-time
credits are denied.
Analysis of Petitioner’s Claims
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
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).
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)).
As a threshold issue, petitioner contends that the challenged
prison disciplinary hearing was barred by the doctrine of res
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
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
F.2d 739, 741 (2d Cir. 1984).
Petitioner’s papers are clear that
his res judicata argument is based on New York law.
Docket No. 11 at 6 (contending that “subsequent litigation of [the]
alleged incident should be barred under New York law”) (emphasis
Claims based on state law are “not cognizable on federal
Saracina v. Artus, 452 F. App’x 44, 46 (2d Cir.
Petitioner’s factual claims could perhaps be read as making an
argument based on the Fifth Amendment’s prohibition against double
The Court notes, however, that petitioner expressly
denies that he is making a double jeopardy argument.
Moreover, even considering the claim on the merits,
petitioner has not shown that he was improperly subjected to double
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.
Turning to petitioner’s due process claims, it is important to
note as a general matter that a prison inmate facing a disciplinary
afforded to the defendant in a criminal prosecution.”
McDonnell, 418 U.S. 539, 556 (1974).
Instead, in a disciplinary
hearing, “[i]nmates are entitled to advance written notice of the
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.
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 has failed to point to any evidence in the
record supporting this argument.
To the contrary, the hearing
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
United States, 586 F.3d 209, 214 (2d Cir. 2009).
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
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.
Petitioner’s argument fails far short of this standard, and he is
therefore not entitled to relief.
Untimely Commencement of Proceeding
Petitioner also contends that his prison disciplinary hearing
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
violated his right to due process.
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).
so because “interests of comity and federalism dictate that state
courts must have the first opportunity to decide a petitioner’s
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
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
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.
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
Second, there is no support in the record for the
conclusion that petitioner is actually innocent of the charges
miscarriage of justice.
Accordingly, petitioner’s claim based on
the allegedly untimely commencement of his disciplinary hearing
does not entitle him to habeas relief.
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
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
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
Again, petitioner has not shown that the Appellate
unreasonable application of established federal law.
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
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).
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
logs to him.
Again, the Court concludes that the Appellate
Division’s rejection of this claim comported with established
“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
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.
Delay in Issuing Report
Petitioner argues that he was denied due process because there
was allegedly an unexplained delay in issuance of the misbehavior
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
petitioner is alleging he was denied due process, petitioner did
not raise this argument before the Appellate Division, and it is
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
Accordingly, petitioner has failed to show that he is
entitled to habeas relief as to this claim.
Sufficiency of the Evidence
evidence to support the charges against him.
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
Constitution does not require evidence that logically precludes any
conclusion but the one reached by the disciplinary board. Instead,
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.”
Here, the evidence presented at the hearing was plainly
particular, the misbehavior report and Investigator Spengler’s
testimony both tended to show that the charges against plaintiff
standing alone, to establish guilt.
See, e.g., Simon v. Selsky,
2002 WL 1205737, at *4 (S.D.N.Y. Mar. 12, 2002).
misbehavior report was corroborated by Investigator Spengler’s
Accordingly, there is no merit to petitioner’s claim
that the evidence against him was insufficient.
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
certifies, pursuant to 28 U.S.C. § 1915(a)(3) and FED. R. APP. P.
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,
The Clerk of the Court is instructed to close this
ALL OF THE ABOVE IS SO ORDERED.
s/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
Rochester, New York
November 8, 2017
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