Turner v. Thaler
Filing
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MEMORANDUM AND ORDER granting 6 MOTION for Summary Judgment, denying the federal habeas corpus petition, and dismissing case with prejudice. A certificate of appealability is denied. (Signed by Judge Kenneth M. Hoyt) Parties notified.(dpalacios, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
VICTOR RANDOLPH TURNER, JR.,
TDCJ #1326957,
Petitioner,
v.
RICK THALER, Director,
Texas Department of Criminal Justice Correctional Institutions Division,
Respondent.
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CIVIL ACTION NO. H-10-5223
MEMORANDUM AND ORDER
The petitioner, Victor Randolph Turner, Jr. (TDCJ #1326957, former TDCJ
#1148489, #1130928, #342300), is a state inmate incarcerated in the Texas Department
of Criminal Justice - Correctional Institutions Division (collectively, ATDCJ@). Turner
has filed a petition for a writ of habeas corpus under 28 U.S.C. ' 2254 challenging a
prison disciplinary conviction. The respondent has filed a motion for summary judgment,
arguing that Turner is not entitled to relief. (Docket No. 6). Turner has filed a response.
(Docket No. 8). After reviewing all of the pleadings, the administrative records, and the
applicable law, the Court grants the respondent=s motion and dismisses this case for
reasons set forth below.
I.
BACKGROUND
Turner is presently incarcerated as the result of more than one felony conviction
from Fort Bend County for evading detention or arrest and unauthorized use of a motor
vehicle. Turner does not challenge any of his underlying convictions here. Instead, he
challenges the result of a prison disciplinary proceeding lodged against him at the Wynne
Unit in Huntsville, where he is currently assigned.
The respondent has provided the report and record of the administrative
investigation, which includes an audiotape of the proceeding. (Docket No. 7). These
records show that, on September 1, 2010, Turner received notice that he was being
charged with violating prison rules in disciplinary case #20110000319 by establishing an
inappropriate relationship with an officer. Turner was present at the hearing, where he
was assisted by a Acounsel substitute.@
Turner was allowed to question witnesses,
including Major Andre Watson and the charging officer, Sergeant Dominick Yanez, who
conducted the investigation. Based on the charging officer=s report and the testimony
about the investigation, a disciplinary captain found Turner guilty as charged following a
hearing on September 3, 2010. As a result of the disciplinary conviction, Turner was
restricted to his cell without commissary privileges for 45 days. Turner also spent 15
days in solitary confinement. In addition, Turner forfeited 90 days of previously earned
credit for good conduct (i.e., Agood-time credit@). Turner challenged the result of his
disciplinary proceeding by filing a Step 1 and Step 2 grievance, but his appeal was
unsuccessful.
Turner now seeks a federal writ of habeas corpus challenging his disciplinary
conviction, which resulted in the loss of good-time credit. Turner complains that the
disciplinary conviction violated his right to due process because he was Anot allowed to
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call all witnesses and question them.@ Turner claims further that the charges were false
and that the conviction was not supported by sufficient credible evidence.
The
respondent notes that the grievances filed Turner reference only his claim concerning the
credibility and sufficiency of the evidence. The respondent maintains that Turner did not
exhaust available administrative remedies by raising all of his claims during the appeal
process. The respondent argues further that Turner is not entitled to relief because his
claims are without merit. The parties= contentions are discussed below under the standard
of review that governs habeas review of prison disciplinary proceedings.
II.
DISCUSSION
A.
Exhaustion of State Administrative Remedies
In the pending motion for summary judgment, the respondent contends that the
Turner did not exhaust available state remedies by presenting all of his grounds for relief
during the prison grievance process.
In support of this claim, the respondent has
provided copies of the relevant step 1 and step 2 grievances submitted by Turner to
challenge the result of his disciplinary conviction. The grievances reflect that Turner
complained only about the credibility and sufficiency of the evidence, but raised none of
his other claims. The respondent argues, therefore, that Turner failed to exhaust available
remedies prior to seeking federal habeas corpus review of these issues.
Under the applicable federal habeas corpus statutes, A[a]n application for a writ of
habeas corpus on behalf of a person in custody pursuant to the judgment of a State court
shall not be granted unless it appears that . . . the applicant has exhausted the remedies
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available in the courts of the State.@ 28 U.S.C. ' 2254(b)(1)(A). Thus, a petitioner Amust
exhaust all available state remedies before he may obtain federal habeas corpus relief.@
Sones v. Hargett, 61 F.3d 410, 414 (5th Cir. 1995). The exhaustion requirement Ais not
jurisdictional, but reflects a policy of federal-state comity designed to give the State an
initial opportunity to pass upon and correct alleged violations of its prisoners= federal
rights.@ Moore v. Quarterman, 454 F.3d 484, 490-91 (5th Cir. 2006) (quoting Anderson v.
Johnson, 338 F.3d 382, 386 (5th Cir. 2003) (internal citations and quotations omitted)).
Exceptions exist only where there is an absence of available State corrective process or
circumstances exist that render such process ineffective to protect the rights of the
applicant. See 28 U.S.C. ' 2254(b)(1)(B).
Texas prisoners are not required to present claims concerning disciplinary
convictions to the state courts in a state habeas corpus application, because those claims
are not cognizable on state habeas review. See Ex parte Brager, 704 S.W.2d 46, 46 (Tex.
Crim. App. 1986). Instead, Texas prisoners who challenge the result of a disciplinary
conviction must seek relief through the two-step TDCJ grievance process.1 Id. In that
regard, ' 501.008 of the Texas Government Code requires inmates to fully exhaust the
TDCJ administrative grievance process before resorting to court. If an inmate fails to do
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TDCJ currently provides a two-step procedure for presenting administrative grievances.
Wendell v. Asher, 162 F.3d 887, 891 (5th Cir. 1998). In Step 1, the prisoner submits a
grievance at the institutional level. Id. If the decision at Step 1 is unfavorable, Step 2
permits the prisoner to appeal Ato the division grievance investigation with the . . . Texas
Department of Criminal Justice.@ Id.
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so, his claims may be dismissed for failure to exhaust administrative remedies. See Ex
Parte Stokes, 15 S.W.3d 532, 533 (Tex. Crim. App. 2000).
Turner=s habeas corpus petition is arguably governed by 28 U.S.C. ' 2254. See,
e.g., Malchi v. Thaler, 211 F.3d 953, 956 (5th Cir. 2000) (AState prisoners who allege that
they were improperly denied good-conduct credit that, if restored, would have resulted in
their immediate or sooner release from prison, fall under ' 2254.@) (citations omitted).
Courts in this circuit have recognized that exhaustion of the prison grievance process is
required in the disciplinary conviction context. See, e.g., Kimbrell v. Cockrell, 311 F.3d
361, 364 (5th Cir. 2002) (holding that Athe timely pendency of prison grievance
procedures@ tolls the statute of limitations for habeas corpus petitions found in 28 U.S.C.
' 2244(d) because prisoners are required to pursue administrative remedies); Foley v.
Cockrell, 222 F. Supp. 2d 826, 829 (N.D. Tex. 2002) (holding that, A[b]ecause exhaustion
of administrative grievance procedures is required, Petitioner is entitled to equitable
tolling of the statute of limitations until the date that he completed the TDCJ
administrative review process@). Although decisions about prison grievances are made
by TDCJ, and not by Acourts of the State,@ there is no valid reason that the exhaustion
requirement found in 28 U.S.C. ' 2254(b) should not also apply where a prisoner is
required to pursue the administrative grievance process. See Prieser v. Rodriguez, 411
U.S. 475, 492 (1973) (pointing to the prison grievance process and noting that, because
the Ainternal problems of state prisons involve issues so peculiarly within state authority
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and expertise, the States have an important interest in not being bypassed in the
correction of those problems@).
The record confirms that Turner did not present all of his grounds for relief in both
step 1 and step 2 of the prison grievance process, where he complained primarily about
the credibility and the sufficiency of the evidence against him. A prisoner must complete
both steps of the grievance process to satisfy the exhaustion requirement. Johnson v.
Johnson, 385 F.3d 503, 515 (5th Cir. 2004). Because Turner did not complete both step
1 and step 2 of the grievance process with respect to the other claims in his pending
petition, he failed to fully exhaust the prison grievance process with respect to those
allegations. Turner has filed a response to the summary judgment motion, but he offers
no valid explanation for his failure to present all of his claims properly during the
grievance process.
It follows that, with the exception of Turner=s challenge to the
sufficiency of the evidence, all of his other claims are subject to dismissal for lack of
exhaustion.
Alternatively, the respondent argues that Turner fails to establish a
constitutional violation and that his petition fails for other reasons outlined briefly below.
B.
Due Process and the Prison Disciplinary Hearing
Turner seeks a writ of habeas corpus challenging the result of a prison disciplinary
conviction that resulted in loss of privileges, a reduction in classification status, and the
loss of good-time credit. The federal writ of habeas corpus is an extraordinary remedy
which shall not extend to any prisoner unless he is Ain custody in violation of the
Constitution or laws or treaties of the United States.@ 28 U.S.C. '' 2241(c)(3) & 2254(a);
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Brecht v. Abrahamson, 507 U.S. 619, 633-34 (1993) (explaining that Athe writ of habeas
corpus has historically been regarded as an extraordinary remedy, a bulwark against
convictions that violate fundamental fairness@). To prevail, a habeas corpus petitioner
must establish a constitutional violation.
In the disciplinary hearing context a prisoner=s rights, if any, are governed by the
Due Process Clause of the Fourteenth Amendment to the United States Constitution. See
Wolff v. McDonnell, 418 U.S. 539, 557 (1974).
However, prisoners charged with
institutional rules violations are entitled to rights under the Due Process Clause only
when the disciplinary action may result in a sanction that will infringe upon a
constitutionally protected liberty interest. See Sandin v. Conner, 515 U.S. 472 (1995).
Liberty interests emanate from either the Due Process Clause itself or from state law. See
Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460 (1989). A convicted
prisoner does not have a constitutional right to conditional release before the expiration
of a valid sentence.
See Greenholtz v. Inmates of the Neb. Penal & Correctional
Complex, 442 U.S. 1, 7 (1979). Likewise, the Constitution does not guarantee an inmate
good-time credit for satisfactory behavior while in prison. Wolff, 418 U.S. at 557;
Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997). Absent a showing that his
disciplinary conviction has implicated a constitutionally protected interest, a prisoner=s
due process claim depends on the existence of an interest created by state law.
The Supreme Court has decided that only those state-created substantive interests
which Ainevitably affect the duration of [a prisoner=s] sentence@ may qualify for
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constitutional protection under the Due Process Clause. Sandin, 515 U.S. at 487. It is
well established that sanctions resulting in a loss of privileges, a temporary cell
restriction, and a reduction in classification do not warrant such protection.2 By contrast,
when a state creates a right to time credit for good conduct, and recognizes that its
revocation is an authorized sanction for misconduct, Aa prisoner=s interest therein is
embraced within the Fourteenth Amendment >liberty= concerns so as to entitle him to
those minimum procedures appropriate under the circumstances and required by the due
process clause to insure that this state-created right is not arbitrarily abrogated.@
Madison, 104 F.3d at 768 (citing Wolff, 418 U.S. at 557).
The Fifth Circuit has recognized that Texas inmates who are eligible for the form
of parole known as mandatory supervision have a constitutional expectancy of early
release.3 See Malchi v. Thaler, 211 F.3d 953, 956 (5th Cir. 2000) (addressing the
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According to well-settled precedent, sanctions that are Amerely changes in the conditions
of [an inmate=s] confinement@ do not implicate due process concerns. Madison v. Parker,
104 F.3d 765, 768 (5th Cir. 1997). Limitations imposed upon commissary or recreational
privileges, and a cell restriction or solitary confinement on a temporary basis, are the type
of sanctions that do not pose an atypical or significant hardship beyond the ordinary
incidents of prison life. See id. The Fifth Circuit has also decided that reductions in a
prisoner=s class status and the potential impact on good-time credit earning ability are not
protected by the Due Process Clause. See Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir.
2000); Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995).
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There are two ways in which a state prisoner becomes eligible for early release from
confinement in Texas. The first is by Aparole@ and the second is by release on
Amandatory supervision.@ See TEX. GOV=T CODE ' 508.001(5)-(6) (Vernon 2004).
Whereas parole is wholly discretionary, an inmate=s release to mandatory supervision is
required, subject to certain exceptions, when the Aactual calendar time the inmate has
served plus any accrued good conduct time equals the term to which the inmate was
sentenced.@ Id. at ' 508.147(a); Jackson v. Johnson, 475 F.3d 261, 263, n.1 (5th Cir.
2007).
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mandatory supervision scheme in place prior to September 1, 1996); see also Teague v.
Quarterman, 482 F.3d 769 (5th Cir. 2007) (addressing the mandatory supervision scheme
in place before and after September 1, 1996).
Texas inmates who are eligible for
mandatory supervision have a protected liberty interest in the good-time credits that they
have earned. See Malchi, 211 F.3d at 956. Therefore, when sanctions are imposed for
disciplinary violations, Texas prison officials cannot forfeit good-time credits from
inmates who are eligible for mandatory supervision without first affording due process.
See id.
As a result of the disciplinary conviction at issue, Turner forfeited 90 days of
previously earned good-time credit. It appears that Turner is eligible for mandatory
supervision. To the extent that Turner had a liberty interest in good-time credit accrued
toward his potential early release on mandatory supervision, the revocation of those
credits must comply with the minimum amount of procedural protection required under
the circumstances. See Superintendent, Mass. Correctional Institution v. Hill, 472 U.S.
445, 454 (1985); Henson v. United States Bureau of Prisons, 213 F.3d 897, 898 (5th Cir.
2000).
In Wolff v. McDonnell, 418 U.S. 539 (1974), the Supreme Court considered the
minimum level of due process required in the prison disciplinary context. In doing so,
the Supreme Court recognized that prison disciplinary proceedings Atake place in a
closed, tightly controlled environment peopled by those who have chosen to violate the
criminal law and who have been lawfully incarcerated for doing so.@ Id. at 561. Because
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prison disciplinary hearings are Anot part of a criminal prosecution,@ the Court reasoned
that Athe full panoply of rights due a defendant in such proceedings does not apply.@ Id.
at 556 (citing Morrissey v. Brewer, 408 U.S. 471, 488 (1972)). The minimum amount of
procedural due process required for prison inmates under these circumstances includes:
(1) advance written notice of the disciplinary charges; (2) an opportunity to call witnesses
and present documentary evidence when the presentation is not unduly hazardous to
institutional safety and correctional goals; and (3) a written statement by the fact finder of
the evidence relied upon and the reason for the disciplinary action. See Wolff, 418 U.S. at
563-67.
Turner does not complain that he received insufficient notice of the charges.
Likewise, he does not claim that he was denied a written statement of the reason for his
conviction. Turner does contend that he had an inadequate opportunity to call witnesses.
The audiotape of the disciplinary hearing reflects that the only witness that Turner
requested was Major Watson.
Major Watson appeared at the hearing, along with
Sergeant Yanez, and Turner had the opportunity to question both of them through his
counsel substitute. The disciplinary hearing record reflects that Turner did not request
any additional witnesses. See TDCJ Report and Hearing Record (Docket No. 7). Based
on this record, Turner fails to demonstrate that he was denied the minimum level of
procedural due process as dictated by the Supreme Court in Wolff, 418 U.S. at 563-67.
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Turner claims that his disciplinary conviction violates due process, nevertheless,
because the charges were not supported by sufficient credible evidence. In addition to
the procedural safeguards articulated in Wolff, disciplinary sanctions imposed by prison
officials must be supported by Asome evidence@ to be consistent with due process. See
Hill, 472 U.S. at 457; Broussard v. Johnson, 253 F.3d 874, 876-77 (5th Cir. 2001). It is
well settled, however, that Afederal courts cannot retry every prison disciplinary dispute;
rather the court may act only where arbitrary or capricious action is shown.@ Reeves v.
Pettcox, 19 F.3d 1060, 1062 (5th Cir. 1994). In other words, when reviewing a prison
disciplinary decision, Athe standard to be applied is whether or not actions of the
disciplinary committee were arbitrary and capricious or an abuse of discretion.@ Smith v.
Rabalais, 659 F.2d 539, 543 (5th Cir. Unit A 1981); see also Banuelos v. McFarland, 41
F.3d 232, 234 (5th Cir. 1995); Turner v. Johnson, 46 F. Supp. 2d 655, 660 (S.D. Tex.
1999).
To satisfy the Due Process Clause in the context of prison disciplinary
proceedings Arequires only that there be some evidence to support the findings made in
the disciplinary hearing.@ Hill, 472 U.S. at 457. AThe goal of this standard C variously a
>modicum of evidence,= >any evidence,= or >some evidence= C is to balance the need to
prevent arbitrary deprivation of protected liberty interests with the need to acknowledge
institutional interests and avoid administrative burdens.@ Hudson v. Johnson, 242 F.3d
534, 536 (5th Cir. 2001) (citing Hill, 472 U.S. at 455). Thus, federal habeas corpus
courts Ado not assess the weight of the evidence@ when reviewing prison disciplinary
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proceedings, and need only examine whether the guilty finding has the Asupport of >some
facts= or >any evidence at all.=@ Hudson, 242 F.3d at 537.
As noted above, Turner was charged with violating prison rules by establishing an
inappropriate relationship with an officer, which is a Level 2, Code 30.2 violation of the
TDCJ-CID Disciplinary Rules and Procedures for Offenders. In particular, Turner was
accused of establishing a relationship by exchanging letters with a female correctional
officer assigned to the Wynne Unit. During the disciplinary proceeding, Turner denied
writing to the officer in question. He claimed that he was writing to someone named
AAngel@ at a Apen pal box,@ and that he did not know the woman he was writing to was a
correctional officer.
Sergeant Yanez, who investigated the charges against Turner,
determined that the P.O. Box on the correspondence in question was rented by the female
correctional officer at issue. Sergeant Yanez testified that the female correctional officer
resigned after an investigation revealed that she was corresponding with offenders at the
Wynne Unit. During that investigation, the female officer admitted that she rented the
P.O. Box in order to avoid detection by Wynne Unit Administration. The record contains
a letter that is addressed to Turner from the female officer. Sergeant Yanez determined
that this letter was written by the female officer in response to a letter that she received
from Turner.
A charging officer=s report and testimony is sufficient evidence to sustain the
disciplinary conviction in this instance. See Hudson, 242 F.3d at 537 (finding that the
offense report, standing alone, meets the Asome evidence@ standard). Although Turner
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disputes the hearing officer=s decision, a federal habeas corpus court may not weigh
evidence when reviewing a prison disciplinary proceeding. See Hill, 472 U.S. at 455;
Hudson, 242 F.3d at 537. A prison disciplinary conviction may be overturned only
Awhere no evidence in the record supports the decision.@ Broussard, 253 F.3d at 877.
Because there was some evidence to support the guilty finding, this Court must defer to
the disciplinary hearing officer.
See Hudson, 242 F.3d at 537.
Turner has not
demonstrated that he was denied due process or that the challenged disciplinary
conviction fails for lack of sufficient evidence. Nor has he shown that the charges or any
of the evidence against him at the hearing were false. Accordingly, the respondent is
entitled to summary judgment and the petition must be dismissed.
III.
CERTIFICATE OF APPEALABILITY
The federal habeas corpus petition filed in this case is governed by the
Antiterrorism and Effective Death Penalty Act, codified as amended at 28 U.S.C. ' 2253.
Therefore, a certificate of appealability is required before an appeal may proceed. See
Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir. 1997) (noting that actions filed under
either 28 U.S.C. ' 2254 or ' 2255 require a certificate of appealability). AThis is a
jurisdictional prerequisite because the COA statute mandates that >[u]nless a circuit
justice or judge issues a certificate of appealability, an appeal may not be taken to the
court of appeals . . . .=@ Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (citing 28 U.S.C.
' 2253(c)(1)).
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A certificate of appealability will not issue unless the petitioner makes Aa
substantial showing of the denial of a constitutional right,@ 28 U.S.C. ' 2253(c)(2), which
requires a petitioner to demonstrate Athat reasonable jurists would find the district court=s
assessment of the constitutional claims debatable or wrong.@ Tennard v. Dretke, 542 U.S.
274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Under the
controlling standard, this requires a petitioner to show Athat reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were >adequate to deserve encouragement to
proceed further.=@
Miller-El, 537 U.S. at 336.
Where denial of relief is based on
procedural grounds, the petitioner must show not only that Ajurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right,@
but also that they Awould find it debatable whether the district court was correct in its
procedural ruling.@ Slack, 529 U.S. at 484.
A district court may deny a certificate of appealability, sua sponte, without
requiring further briefing or argument. See Alexander v. Johnson, 211 F.3d 895, 898 (5th
Cir. 2000). After careful review of the pleadings and the applicable law, the Court
concludes that reasonable jurists would not find the assessment of the constitutional
claims debatable or wrong.
Because the petitioner does not otherwise allege facts
showing that his claims could be resolved in a different manner, a certificate of
appealability will not issue in this case.
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IV.
CONCLUSION
Based on the foregoing, the Court ORDERS as follows:
1.
The respondent=s motion for summary judgment (Docket No. 6) is
GRANTED.
2.
The federal habeas corpus petition is DENIED, and this case is
DISMISSED with prejudice.
3.
A certificate of appealability is DENIED.
The Clerk shall provide a copy of this order to the parties.
SIGNED at Houston, Texas this 8th day of August, 2011.
___________________________________
Kenneth M. Hoyt
United States District Judge
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