Gordon v. Farris

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATION for 13 Motion to Dismiss, 20 Report and Recommendation, as more fully set out. Signed by Honorable David L. Russell on 12/16/14. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

DEANGELO GORDON,
Petitioner,
v.

JIM FARRIS
Respondent.

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CIV-13-1084-R

ORDER
Petitioner filed this action pursuant to 28 U.S.C. § 2241, seeking a writ of habeas
corpus and challenging a disciplinary conviction that resulted in the loss of good time credits.
Pursuant to 28 U.S.C. § 636(b)(1)(B), the matter was referred to United States Magistrate
Judge Shon T. Erwin for preliminary review. On October 31, 2013, Judge Erwin issued a
Report and Recommendation wherein he recommended the action be dismissed upon filing
as procedurally defaulted. The Court declined to adopt the Report and Recommendation
upon objection because Petitioner, for the first time, asserted that he had attempted to exhaust
his state court remedies. The Court remanded the matter to Magistrate Judge Erwin who
issued a second Report and Recommendation on August 18, 2014, recommending that
Respondent's Motion to Dismiss be granted, because Petitioner had failed to overcome the
procedural bar that applied because he had not completely exhausted his state court remedies.
On October 28, 2014, Petitioner filed an objection, giving rise to the Court's obligation to
conduct a de novo review of those portions of the Report and Recommendation to which

Petitioner specifically objects. Having considered the Report and Recommendation and the
objection thereto, the Court finds as follows.
Judge Erwin recommends dismissal again because Petitioner has not properly
exhausted his state court remedies.

Specifically, as set forth in the Report and

Recommendation, he attempted to appeal the denial of his petition by the District Court of
Oklahoma County, but improperly submitted his appeal to the Oklahoma Court of Civil
Appeals. The Oklahoma Supreme Court further determined that Petitioner's attempt at
appeal was untimely. As a result, Judge Erwin determined that Petitioner is barred from
seeking relief on his claims, unless he can show cause and prejudice for his failure to
properly exhaust or that failure to consider his claims will result in a fundamental miscarriage
of justice. Judge Erwin concluded that Petitioner could not establish either prejudice or a
fundamental miscarriage of justice, because there was some evidence to support the
conviction. Petitioner objects to this contention, in part because he contends the hearing
officer relied on hearsay evidence.
Petitioner's objection first addresses the cause prong of the cause and prejudice basis
for avoiding procedural default. The Report and Recommendation, however, did not address
cause, concluding that it was not necessary in light of Petitioner's inability to meet the
prejudice prong. As such, the Court does not consider the cause prong, and Petitioner's
attendant argument that state court's error deprived him of an appeal during court proceedings
to challenge his prison disciplinary conviction.

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First, Petitioner's reliance on United States v. Jones, 49 F.3d 628m 633-34 (10th Cir.
1995), was inappropriate, as it involved a criminal prosecution not a prison disciplinary
hearing. See Howard v. United States Bureau of Prisons, 487 F.3d 808, 811 (10th Cir.2007)
(quoting Mitchell v. Maynard, 80 F.3d 1433, 1444 (10th Cir.1996). The "some evidence"
standard appropriately cited by Judge Erwin allows this Court to affirm a disciplinary
conviction even if the evidence supporting the decision is meager. Mitchell, 80 F.3d at 1445.
Furthermore, judicial review does not require the weighing of evidence, it is not the province
of the Court to “address the validity of [the] evidence.” Id.
Accordingly, the fact that Petitioner was not found with the cellular telephone is not
outcome determinative. Rather, the prison was permitted to rely on the fact that a caller who
identified himself as Gordon placed a call to the dialysis clinic from an external telephone
line, and warned offenders about shakedowns occurring upon return to the general
population. The hearsay statement about which Petitioner complains is contained in the
written Incident/Staff Report dated April 18, 2012, wherein the corrections officer, Shea
Samuel, stated that
on the above date and approx time I (Cpl Shea) was informed of a phone call
made to dialysis from an outside line from Offender Gordon D. (256692). The
Dialysis Tech on duty answered the phone and recognized Gordon's voice. As
he was trying to get a message to other RTHU Offenders to not "ride out dirty"
due to offenders from dialysis being strip searched.
In the Incident Report signed by Dawn Witcher, the employee who answered the phone in
the dialysis unit, it states:

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On the above date and approx. time the phone rang in the dialysis clinic I
answered the phone the person on the other line asked for Lesa I said she was
checking the water could I take a message the caller said this is Gordon tell JD
and Bobb that they are strip searching us when we leave so don't leave dirty.
I said OK I will tell Lesa and hung up. As soon a she returned I reported what
was said to Lesa Hick my supervisor.
Contrary to Petitioner's claims, it is permissible to rely upon hearsay evidence, such as a
written incident report or the statement by Witcher to Samuels, in a prison disciplinary
proceeding. Accordingly the fact that the DHO relied upon the statement in the second
incident report that the dialysis technician recognized Gordon by name does not undermine
his disciplinary conviction, even though the incident report she signed does not contain that
same information. “The fundamental fairness guaranteed by the Due Process Clause does
not require courts to set aside decisions of prison administrators that have some basis in fact.”
Id. at 456. Here, the DHO's decision to revoke 365 days of Petitioner's good time credits has
evidentiary support in the record. Accordingly, petitioner's due process claim based on the
alleged insufficiency of the evidence in his disciplinary proceeding fails and thus he cannot
establish either prejudice or a fundamental miscarriage of justice so as to overcome the
procedural bar.
The Court hereby adopts the Report and Recommendation of the Magistrate Judge and
the Respondent's Motion to Dismiss is hereby GRANTED.
IT IS SO ORDERED this 16th day of December, 2014.

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