Smith v. Thaler
Filing
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OPINION ON DISMISSAL granting 11 Motion for Summary Judgment; granting 12 Motion for Summary Judgment. This petition is DISMISSED with prejudice; A Certification of Appealability is DENIED; All other pending motions, if any, are DENIED. (Signed by Judge Melinda Harmon) Parties notified.(htippen, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MICHAEL JEROME SMITH,
TDCJ-CID NO. 645699,
Petitioner,
v.
RICK THALER,
Respondent.
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CIVIL ACTION NO. H-11-0270
OPINION ON DISMISSAL
Petitioner Michael Jerome Smith, a state inmate proceeding pro se and in forma
pauperis, seeks federal habeas relief from a disciplinary conviction in case number
20100102469. (Docket Entry No.1). Petitioner indicates that, as a result of such conviction, he
lost ninety days of good conduct credit and had his class line status reduced. (Id.). Petitioner
also indicates that he is entitled to release on mandatory supervision. (Id.).
Respondent has filed a motion for summary judgment. (Docket Entries No.11,
No.12).1 Petitioner has not responded to the motion. For reasons to follow, the Court will grant
respondent’s motion for summary judgment and dismiss this habeas action.
I. BACKGROUND
Petitioner is serving a forty-year sentence from a conviction for indecency with a
child in the 178th Criminal District Court of Harris County, Texas, in cause number 642709,
(Docket Entry No.1). Petitioner was charged with engaging in a fight on December 8, 2009, at
10:25 p.m. with another offender by punching the offender with a clinched fist to the head and
face; neither offender suffered an injury. (Docket Entry No.13, Disciplinary Report and Hearing
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The motions for summary judgment are duplicative except that respondent attached exhibits to the motion in
Docket Entry Number 12. For purposes of this Order, the Court will refer only to Docket Entry Number 12.
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Record). Petitioner was notified of the charges and the hearing on December 14, 2009. (Id.). At
the hearing on December 21, 2009, petitioner stated that the other offender was trying to escalate
a squabble by swinging at him but did not make contact; petitioner tried to defend himself from
the swing. (Id.). Petitioner claimed that his hand was injured and that he could not swing; he
requested that the hearing officer consider his medical records to prove the injury.2 (Id.).
After considering the offense report, the charging officer’s testimony, statements
made by other officers who witnessed the altercation, petitioner’s testimony, and a statement
from the medical records department regarding petitioner’s injury, the disciplinary hearing
officer found petitioner guilty of the violation and assessed punishment. (Id.). Thereafter,
petitioner submitted Step 1 Grievance Number 2010071980, dated December 29, 2009, in which
he alleged that he was the victim and that other inmates had intervened. (Docket Entry No.13,
grievance records). The grievance was denied. Petitioner’s Step 2 grievance, in which he
complained that the warden failed to adhere to TDCJ-CID Legal Affairs Opinion No.88-I
regarding the appropriateness of processing disciplinary charges where one inmate is clearly the
victim, was also denied. (Id.). The grievance investigator found the charge against petitioner
was appropriate and the guilty verdict was supported by sufficient evidence. (Id.).
Petitioner seeks federal habeas relief in the present action on the following
grounds:
1.
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He was denied due process by being punished for the disciplinary
violation in violation of Opinion Policy 88-I where the evidence
showed he was the victim;
A statement taken by Officer P. Weaver from L. Martin in medical records per an inter-office memorandum dated
December 14, 2009, indicates that petitioner stated that he sustained an injury to his wrist on December 8, 2009,
about 6:00 p.m.. (Docket Entry No.13). The statement also indicates that at a pre-segregation physical on
December 9, 2009 at 12:06 a.m., petitioner displayed a swollen right wrist, which x-rays showed to be a fracture.
(Id.).
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2.
He was denied the effective assistance of substitute counsel when
substitute counsel failed to obtain a copy of Opinion Policy 88-I
and present such documentation in his defense;
3.
He was denied due process by a biased disciplinary hearing officer
and found guilty upon unreliable evidence; and,
4.
He has been denied release to mandatory supervision and is being
required to serve more time than necessary due to the biased
hearing and the guilty verdict based upon unreliable evidence.
(Docket Entry No.1).
Respondent moves for summary judgment on claims that petitioner’s claims are
partially unexhausted and procedurally barred. (Docket Entry No.12). Alternatively, respondent
moves for summary judgment on the ground that petitioner’s claims are without legal merit.
(Id.).
II. ANALYSIS
To be entitled to summary judgment, the pleadings and summary judgment
evidence must show that there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). The moving party bears the
burden of initially pointing out to the court the basis of the motion and identifying the portions of
the record demonstrating the absence of a genuine issue for trial. Duckett v. City of Cedar Park,
Tex., 950 F.2d 272, 276 (5th Cir. 1992). Thereafter, “the burden shifts to the nonmoving party to
show with ‘significant probative evidence’ that there exists a genuine issue of material fact.”
Hamilton v. Seque Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000) (quoting Conkling v. Turner,
18 F.3d 1285, 1295 (5th Cir. 1994)). The Court may grant summary judgment on any ground
supported by the record, even if the ground is not raised by the movant. U.S. v. Houston Pipeline
Co., 37 F.3d 224, 227 (5th Cir. 1994).
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A. Sufficiency of the Evidence
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). In Texas, it is well established that only those inmates
who are eligible for mandatory supervision have a constitutional expectancy of early release
under the Texas mandatory supervision scheme and a protected liberty interest in the good-time
credits that they have earned. Malchi v. Thaler, 211 F.3d 953, 957 (5th Cir. 2000) (addressing
the 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).
1. Miscellaneous Sanctions
Disciplinary hearing records show that as a result of his disciplinary conviction,
petitioner lost forty-five days of recreation and commissary privileges, sixty days of contact
visitation, and had his line-earning status reduced from S-3 to L-1. (Docket Entry No.13). None
of these sanctions implicate a liberty interest of the sort protected by the Due Process Clause.
Sanctions that are “merely 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. 1996)
(limitations on commissary or recreational privileges, cell restriction or temporary solitary
confinement are not atypical or significant hardship); Malchi v. Thaler, 211 F.3d 953, 958 (5th
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Cir. 2000) (reductions in class line status and potential impact on good-time credit earning are
not protected by Due Process Clause).
Because Due Process is not implicated by these
miscellaneous sanctions, petitioner is not entitled to federal habeas relief from these forms of
punishment.
2. Good-Time Credits
As a result of the disciplinary conviction in case number 20100102469, petitioner
lost ninety days of previously earned good conduct time. When a state creates a right to time
credit for good conduct, and recognizes that its revocation is an authorized sanction for
misconduct, “a 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). Because
petitioner is eligible for mandatory supervision, he had a protected liberty interest in the
previously earned good-time credits. See Teague, 482 F.3d at 775-76 (citing Malchi, 211 F.3d at
956). Therefore, 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).
In Wolff, 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 “take 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.” 418 U.S. at 561. Because prison disciplinary hearings are “not part of a criminal
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prosecution,” the Court reasoned that “the full panoply of rights due a defendant in such
proceedings does not apply.” Id. at 556. 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. Id. at 563-67.
Petitioner does not complain that he did not receive procedural due process with
respect to disciplinary proceedings; moreover, the disciplinary hearing records and the audio
recording of the hearing show that these procedural requirements were met. (Docket Entries
No.1, No.13). Instead, petitioner complains that his disciplinary conviction violates due process
because the charge was not supported by sufficient evidence. (Docket Entry No.1). Respondent
contends that this “insufficient evidence” claim is petitioner’s only unexhausted claim and is
without legal merit. (Docket Entry No.13).
Federal habeas review of the sufficiency of the evidence to support a disciplinary
conviction is extremely limited. Due process requires only “some evidence to support the
findings made in the disciplinary hearing.” Hill, 472 U.S. at 457. The Supreme Court has
determined that “[a]scertaining whether [the sufficiency-of-evidence] standard is satisfied does
not require examination of the entire record, independent assessment of the credibility of
witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any
evidence in the record that could support the conclusion reached by the disciplinary board.” Id.
at 455. “Determining the believability of the testimonies presented at the hearing is left to the
discretion of the hearing officer.” Hudson v. Johnson, 242 F.3d 534, 536-537 (5th Cir. 2001).
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The information provided in a written incident report standing alone can satisfy the “some
evidence” standard. Id. at 537. “Prison disciplinary proceedings are overturned only where no
evidence in the record supports the decision.” Broussard v. Johnson, 253 F.3d 874, 877 (5th Cir.
2001). Therefore, when reviewing a prison disciplinary decision, “the standard to be applied is
whether or not actions of the disciplinary committee were arbitrary or capricious or an abuse of
discretion.” Smith v. Rabalais, 659 F.2d 539, 543 (5th Cir. 1981).
In this case, the disciplinary hearing records and the audio recording of the
disciplinary proceedings reflect that petitioner had complained to another inmate that he had
sprained his wrist playing basketball on December 8, 2009, but he had not reported any injury to
medical or prison officials until after the altercation, when he was examined for pre-segregation
detention. (Docket Entry No.13). The hearing records and audio recording also indicate that at
least two officers saw petitioner and the other offender throwing punches and holding each other.
Statements by officers show that petitioner retreated from the fight when threatened with
chemical spray, but the other inmate remained agitated (Id.). The hearing records further show
that the disciplinary hearing officer allowed petitioner to give several statements but found
petitioner guilty from evidence in the offense report and from testimony presented during the
hearing. (Id.).
Based on this record, the Court finds that petitioner’s rights set forth in Wolff and
Hill have not been abridged and that there was some evidence in the record to support the
hearing officer’s decision in this case. Accordingly, respondent is entitled to summary judgment
on this claim.
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B. Remaining Claims
Respondent contends that petitioner’s remaining claims are unexhausted and
procedurally barred, and alternatively, without legal merit. (Docket Entry No.12).
A state inmate must exhaust all available state remedies before proceeding in
federal court unless circumstances exist which render the state corrective process ineffective to
protect the prisoner’s rights.
28 U.S.C. § 2254(b), (c).
Although decisions about prison
grievances are made by TDCJ, and not by “courts 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 “internal
problems of state prisons involve issues so peculiarly within state authority and expertise, the
States have an important interest in not being bypassed in the correction of those problems”). In
fact, the Fifth Circuit has long held that inmates seeking relief from prison disciplinary cases
must exhaust their available administrative remedies before pursuing a federal writ of habeas
corpus. Lerma v. Estelle, 585 F.2d 1297, 1299 (5th Cir. 1978); see also Kimbrell v. Cockrell,
311 F.3d 361, 364 (5th Cir. 2002) (holding that “the 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).
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). Moreover, an
administrative grievance must provide administrators with a fair opportunity under the
circumstances to address the problem that will later form the basis of the suit. Id. at 522 (noting
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that “[i]n deciding how much detail is required in a given case . . . , a court must interpret the
exhaustion requirement in light of its purposes, which include the goal of giving officials ‘time
and opportunity to address complaints internally’”).
Petitioner complained in Step 1 Grievance Number 2010071980 that his substitute
counsel was offensive and adversarial and that the hearing officer was present when she took his
statement so he was reluctant to go into any detail. (Docket Entry No.13, grievance record).
Petitioner made no mention of Legal Opinion No.88-I in this grievance. (Id.). In Step 2
Grievance Number 20010071980, petitioner did not complain about substitute counsel of the
hearing officer. (Id.). Instead, he complained that policy was not followed because the evidence
clearly showed that he was the victim and not the aggressor. (Id.). Because he did not raise
these three claims in both grievances, such claims are unexhausted.
Respondent maintains that these claims are also procedurally barred because any
attempt to exhaust such claims through the prison grievance system would be rejected as
untimely. (Docket Entry No.12). When the petitioner’s own procedural default leaves state
remedies for a petitioner’s claims unavailable, federal courts are barred from reviewing those
claims. Magouirk v. Phillips, 144 F.3d 348, 360 (5th Cir. 1998). A petitioner, however, may
overcome the procedural default bar if he “can demonstrate cause for the defaults and actual
prejudice as a result of the alleged violation of federal law” or else show that “failure to consider
the claims will result in a fundamental miscarriage of justice.” Morris v. Dretke, 413 F.3d 484,
491-92 (5th Cir. 2005).
Petitioner has not filed a response to the motion for summary judgment nor shown
“cause” under the “cause and prejudice” test or demonstrated actual innocence in any pleading,
which is necessary to allow the court to reach the merits of the claims despite the procedural bar.
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No external impediment prevented petitioner from properly raising and discussing these claims
in his grievances. Absent a showing of “cause,” it is unnecessary for this court to consider
whether there is actual prejudice. Martin v. Maxey, 98 F.3d 844, 849 (5th Cir. 1996).
Alternatively, petitioner’s remaining claims are without legal merit. To the extent
that petitioner alleges that the hearing officer was biased during the disciplinary hearing, the
Court has reviewed the audio recording of the disciplinary hearing and finds that there is no
evidence to support such allegation. Moreover, the record does not show that the hearing officer
was predisposed to finding petitioner guilty, that the officer’s finding of guilt was based on less
than constitutionally sufficient evidence, or that the officer even behaved in less than a
professional manner.
To the extent that petitioner complains that he was denied the effective assistance
of counsel during disciplinary proceedings, such claim is without merit. Claims for ineffective
assistance of counsel are dependent upon the right to counsel. See Wainwright v. Torna , 455
U.S. 586, 587-88 (1982). Inmates have no right to retained or appointed counsel at prison
disciplinary proceedings. See Baxter v. Palmigiano, 425 U.S. 308, 315 (1976).
To the extent that petitioner contends that prison officials did not proceed
according to Legal Opinion 88-I, the Court finds some evidence sufficient to support his
conviction. Moreover, it is of no constitutional moment that prison officials did not adhere to
Legal Opinion 88-I. See Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996) (failure to follow
prison’s own policies does not constitute due process violation if constitutional minima are met).
Accordingly, respondent is entitled to summary judgment.
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III. CERTIFICATE OF APPEALABILITY
A certificate of appealability from a habeas corpus proceeding will not issue
unless the petitioner makes “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2).
This standard “includes showing that 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.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotations and citations omitted). Stated
differently, the petitioner “must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Id.; Beazley v. Johnson, 242 F.3d
248, 263 (5th Cir. 2001). On the other hand, when denial of relief is based on procedural
grounds, the petitioner must not only show that “jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional right,” but also that they “would
find it debatable whether the district court was correct in its procedural ruling.” Beazley, 242
F.3d at 263 (quoting Slack, 529 U.S. at 484); see also Hernandez v. Johnson, 213 F.3d 243, 248
(5th Cir. 2000). A district court may deny a certificate of appealability, sua sponte, without
requiring further briefing or argument. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
The Court has determined that petitioner has not made a substantial showing of the denial of a
constitutional right. Therefore, a certificate of appealability from this decision will not issue.
IV. CONCLUSION
The Court finds that there is no genuine issue of material fact in this habeas
action, and that the respondent is entitled to summary judgment as a matter of law. It is,
therefore, ORDERED as follows:
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1.
Respondent’s Motion for Summary Judgment (Docket Entries
No.11, No.12) is GRANTED.
2.
This petition is DISMISSED with prejudice.
3.
A certification of appealability from this decision is DENIED.
4.
All other pending motions, if any, are DENIED.
The Clerk shall provide a copy of the Order to the parties.
SIGNED at Houston, Texas, this 21st day of February, 2012.
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MELINDA HARMON
UNITED STATES DISTRICT JUDGE
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