Barton v. Stephens
Filing
14
MEMORANDUM OPINION AND ORDER granting 11 MOTION for Summary Judgment with Brief in Support. The Petition for a Writ of Habeas Corpus By aPerson in State Custody 1 is DENIED, and this action will be dismissed withprejudice. A certificate of appealability is DENIED. (Signed by Judge Sim Lake) Parties notified. (cfelchak, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CORY BARTON, TDCJ #1761992,
§
§
§
§
§
§
§
§
§
§
§
§
Petitioner,
v.
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice - Correctional
Institutions Division,
Respondent.
CIVIL ACTION NO. H-14-3675
MEMORANDUM OPINION AND ORDER
The petitioner, Cory Barton (TDCJ #1761992), is a state inmate
incarcerated
in
the
Texas
Department
of
Criminal
Justice
Barton has filed a
correctional Institutions Division ("TDCJ").
Petition for a Writ of Habeas Corpus By a Person in State Custody
under
28
U.S.C.
§
2254,
disciplinary proceeding.
challenging
the
result
(Docket Entry No.1)
of
a
prison
The respondent has
answered with Respondent Stephens's Motion for Summary Judgment
with Brief in Support, arguing that Barton is not entitled to the
relief that he seeks.
(Docket Entry No. 11)
has
of
provided
records
disciplinary hearing,
the
time
to
do
so
investigation
and
including an audio CD of the proceeding.
(Docket Entry Nos. 10, 12, 13)
his
administrative
The respondent also
has
Barton has not filed a reply and
expired.
After
reviewing
all
of
the
pleadings, the administrative records, and the applicable law, the
court will grant the respondent's motion and dismiss this action
for the reasons explained below.
I.
Background
Barton is presently incarcerated as the result of a judgment
and sentence entered against him in the 52nd JUdicial District
Court of Coryell County, Texas.
Barton was convicted of two counts
of burglary of a building (cause numbers FBR-11-20754 and FBR-1120755) and three counts of bail jumping (FO-11-21056, FO-11-21057,
and FO-11-21058).
He was sentenced to ten years' imprisonment in
each case on January 6, 2012.
Barton does not challenge any of his underlying convictions.
Instead,
he
challenges
the
result
of
a
prison
disciplinary
2014,
at the Ellis
proceeding lodged against him on January 31,
Unit
in Huntsville,
Texas,
in TDCJ Case No.
2014092953.
The
administrative record shows that Barton was charged with conspiring
with others to introduce contraband into the prison in violation of
Code
10.2
and
Code
16.0
Procedures for Offenders.
conspiring with his
of
the
TDCJ
Disciplinary
Rules
and
In particular, Barton was charged with
mother,
another
offender-inmate,
offender-inmate's girlfriend to introduce 80
cans of
and
that
smokeless
tobacco or chewing tobacco along with other contraband,
namely,·
bubble gum, onto Ellis Unit property.
A report of the administrative investigation shows that Barton
was
overheard in a
recorded telephone
-2-
conversation asking his
mother (Sandra Buckstorm) to participate in a conspiracy by having
her call another offender-inmate's girlfriend (Marie Sanchez)
to
exchange money for tobacco products that would be dropped onto
Ellis Unit property.
Approximately 80 cans of smokeless tobacco or
chewing tobacco and bubble gum were then dropped off.
Officer A. Vincent was appointed as a "counsel substitute" to
assist Barton during the disciplinary proceeding.
A report of
Of f icer Vincent's investigation shows that Barton was provided with
a copy of the charges and advised of his rights in connection with
the disciplinary proceeding,
question witnesses;
(2)
including the right
(1)
to call and
to present documentary evidence;
represented by a counsel substitute; and
the charging officer at the hearing.
(4)
to be
(3)
to call and question
Barton indicated that he
understood the charges and his rights.
Officer Vincent reviewed
the
of
case
file
and
obtained
records
the
recorded
phone
conversations.
Captain T. Preischal presided over the disciplinary hearing,
which took place on February 3,
hearing
C.
record
Crippin)
show
appeared
that
at
the
the
2014.
The written report and
investigating
hearing
and
officer
testified
(Sergeant
that
his
investigation uncovered a conspiracy involving Barton and others to
introduce contraband
(tobacco products and bubble gum)
onto the
Ellis Unit property.
Along with the report of his investigation,
Crippin provided a report that summarized the phone calls made by
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Barton and another offender-inmate to their family members in which
they conspired to bring contraband to them at the Ellis Unit.
Barton, who was present at the hearing, testified on his own
behalf.
He denied saying anything during his phone conversations
about tobacco products and argued that he did not have any in his
possession.
Barton
asked
for
audio
recordings
of
the
phone
conversations to be played at the hearing, but Captain Preischal
denied that request as
"irrelevant"
and "duplicative"
of other
records that he had previously reviewed.
Based on the written reports and Sergeant Crippin's testimony,
Captain Preischal found Barton guilty as charged.
As punishment,
Captain Preischal restricted Barton's recreation and commissary
privileges
for
45
days
and
suspended
his
contact
visitation
privileges through June 1, 2014.
Barton also forfeited 360 days of
previously
good
earned
credit
for
conduct
(i.
e. ,
"good-time
credit") and he was reduced in classification status from S2 to L1.
Barton filed a grievance to challenge the conviction in TDCJ
Case No.
2014092953.
(Step 1 Grievance #2014092119)
In that
grievance Barton repeated his contention that he made no mention of
tobacco or any other contraband in his phone conversations and was
not guilty of the charged offense.
Barton contended that he was
denied the right to "see or hear" evidence against him in the form
of phone records.
The warden affirmed the conviction after finding
no procedural errors and noting that there was sufficient evidence
to support a finding of guilt.
-4 -
\
Barton
grievance
appealed
at
#2014092119)
he
made
in
the
the
warden's
administrative
decision
level.
by
filing
(Step
2
another
Grievance
In that appeal Barton repeated the allegations that
his
initial
grievance.
A regional
administrator
affirmed the conviction after finding that sufficient evidence was
presented to support the finding of guilt and that
process requirements were satisfied[.]
"[a] 11 due
II
Barton now seeks a federal writ of habeas corpus to challenge
his disciplinary conviction.
Barton argues that the disciplinary
conviction violated his right to due process because
(1)
he was
denied the opportunity to present documentary evidence regarding
the recorded phone conversations;
(2) he was denied an impartial
fact-finder; and (3) there was "no evidence to support the finding
of guilt."
The respondent notes that Barton did not raise all of his
grounds for relief during his administrative grievance appeal from
the disciplinary proceeding.
The respondent argues,
therefore,
that Barton did not exhaust available administrative remedies as
required with respect to all of his claims.
The respondent argues
further that Barton is not entitled to relief because his claims
lack merit.
II.
A.
Discussion
Exhaustion of Administrative Remedies
The respondent points to the grievances filed by Barton and
notes that he did not claim that he was denied the opportunity to
-5-
present documentary evidence or that he was denied an impartial
fact
finder during his disciplinary proceeding.
Because these
issues were not raised during the formal grievance process,
respondent
argues
that
Barton
failed
to
exhaust
the
available
administrative remedies with respect to these claims.
Under the applicable federal habeas corpus statutes,
"[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 available in the courts of the State."
§
2254(b)(1)(A).
28 U.S.C.
Thus, a petitioner "must exhaust all available
state remedies before he may obtain federal habeas corpus relief."
Sones v. Hargett,
61 F.3d 410,
414
(5th Cir.
1995).
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
See
applicant.
28
U.S.C.
2254 (b) (1) (B) .
Texas prisoners are not required to present claims concerning
disciplinary convictions to the state courts in an appeal or habeas
corpus application.
Crim.
App.
1986)
See Ex parte Brager, 704 S.W.2d 46, 46 (Tex.
(holding that
attacks
on prison disciplinary
convictions are not cognizable on state habeas review).
Texas
prisoners
who
challenge
the
result
of
a
Instead,
disciplinary
conviction must seek relief through the two-step TDCJ grievance
-6-
process. 1
Section
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 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) .
The respondent has provided copies of the relevant grievances
submitted by Barton in connection with his disciplinary conviction.
(Docket
above,
Entry No.
10)
Those grievances,
which are
summarized
confirm that Barton complained primarily that the charges
were unsupported by sufficient evidence (habeas claim 3) and that
he was denied an opportunity to see or hear evidence against him in
the form of the recorded phone conversations.
Barton did not claim
that he was denied the opportunity to present documentary evidence
(habeas claim 1) and made no mention of being denied an impartial
fact-finder (habeas claim 2).
Thus, he did not complete both steps
of the grievance process with respect to those claims.
A prisoner must complete both steps of the grievance process
to satisfy the exhaustion requirement.
F.3d 503,
515
(5th Cir.
2004).
Johnson v.
Johnson,
385
Because Barton did not complete
lTDCJ
affords
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 "to the division
grievance investigation with the . . . Texas Department of Criminal
Justice."
Id.
-7-
both steps of the prison grievance process with respect to habeas
claims 1 and 2, he failed to fully exhaust available administrative
remedies with respect to those allegations.
Barton has not filed
a response to the motion for summary judgment and has offered no
explanation for his failure to present all of his claims properly
during the grievance process.
Accordingly, with the exception of
the allegations made in claim 3, Barton's other allegations (habeas
claims 1 and 2) are subject to dismissal for lack of exhaustion.
B.
Due Process in the Prison Disciplinary Context
The respondent also argues that all of Barton's allegations
are without merit and that he fails to demonstrate that he was
denied due process during his disciplinary proceeding.
In the
disciplinary hearing context a prisoner's rights are governed by
the
Due
Process
Clause
of
United States Constitution.
2963, 2975 (1974)
rules violations
the
Fourteenth
See Wolff v.
Amendment
McDonnell,
to
the
94 S.
Ct.
However, prisoners charged with institutional
are entitled to rights
under the Due
Process
Clause only when the disciplinary action may result in a sanction
that
will
interest.
infringe
upon
a
constitutionally
protected
See Sandin v. Conner, 115 S. Ct. 2293
(1995).
liberty
Liberty
interests of this sort may emanate from either the Due Process
Clause itself or from state law.
See Kentucky Dept. of Corrections
v. Thompson, 109 S. Ct. 1904, 1908 (1989).
To the extent that Barton challenges the loss of privileges
the Fifth Circuit has decided that this type of sanction does not
-8-
pose
an
atypical
or
significant
incidents of prison life.
(5th
1997)
Cir.
hardship
beyond
the
ordinary
See Madison v. Parker, 104 F.3d 765, 768
(explaining
that
limitations
imposed
upon
commissary or recreational privileges and a cell restriction or
solitary confinement on a temporary basis are "merely changes in
the conditions of [an inmate's] confinement").
Accordingly, these
sanctions do not implicate due process concerns.
See id.
Fifth
a
Circuit
also
has
held
that
reductions
in
The
prisoner's
classification status and the potential impact on good-time credit
earning
ability
sentence.
are
too
attenuated
to
have
an
effect
on his
See Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000) ;
Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995).
Barton therefore
cannot show that the loss of privileges or the reduction in his
class
status
interest.
To
implicate
a
constitutionally
protected
liberty
See Malchi, 211 F.3d at 958.
the
extent
that
Barton
argues
that
the
disciplinary
conviction could adversely affect his eligibility for parole, it is
well established that Texas inmates
interest in parole."
Cir. 1997).
"have no protected liberty
Johnson v. Rodriguez, 110 F.3d 299, 308 (5th
The Fifth Circuit has recognized, however, that Texas
inmates do have a constitutional expectancy of early release if
they
are
eligible
supervision.
for
the
form
of
parole
known
as
mandatory
See Malchi, 211 F.3d at 956 (addressing the mandatory
supervision scheme in place prior to September 1, 1996) ; see also
Teague v. Quarterman, 482 F.3d 769 (5th Cir. 2007)
-9-
(addressing the
mandatory supervision scheme in place before and after September 1,
1996).
As a result, Texas inmates who are eligible for mandatory
supervision have a protected liberty interest in the good-time
credits
that
they have
Because
Barton
is
earned.
eligible
for
See Malchi,
mandatory
211
F.3d at
supervision,
he
956.
was
entitled to the minimum amount of due process before his good-time
credits were revoked.
C.
Barton's Due Process Claims
The
Supreme
Court
has
observed
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."
S. Ct. at 2977.
Wolff,
94
In this setting the minimum amount of procedural
due process is generally limited to (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.
80.
In addition,
findings
made
in
there must be
the
See id. at 2978-
"some evidence to support the
disciplinary
hearing."
Superintendent,
Massachusetts Correctional Institution, Walpole v. Hill, 105 S. Ct.
2768, 2775
(1985).
If these criteria are met, a prisoner cannot
show that he was punished without due process.
-10-
Barton does not claim that he received insufficient notice of
the charges, that he was denied witnesses in his defense, or that
he was denied a written statement of the reason for his conviction.
Although Barton contends
that
he was
denied an opportunity to
present phone records at the hearing, the record discloses that the
disciplinary hearing officer denied that request as "duplicative"
because he had already reviewed the
requested records.
Thus,
Barton was not denied an opportunity to present this evidence.
Barton does not allege facts showing that the disciplinary
hearing officer was personally involved in the underlying incident
or investigation of the charged offense, and he does not otherwise
show that he was denied his right to an impartial decision-maker.
Without more, his conclusory allegations of bias are insufficient
to raise an issue on habeas corpus review.
691 F.2d 796, 799 (5th Cir. 1982)
See Schlang v. Heard,
("Mere conclusory statements do
not raise a constitutional issue in a habeas case.") .
Likewise, although Barton contends that there was insufficient
evidence to support his conviction, the hearing officer based his
finding of guilt on the charging officer's testimony and offense
report,
which
transcript
report
and
of
included
the
records
of
recorded phone
testimony
is
the
calls.
sufficient
and
a
A charging officer's
evidence
disciplinary conviction in this instance.
242 F.3d 534, 537 (5th Cir. 2001)
investigation
to
sustain
the
See Hudson v. Johnson,
(finding that the offense report,
standing alone, meets the "some evidence" standard).
-11-
Based on this record,
disciplinary
conviction
Barton has not demonstrated that his
failed
to
meet
procedural due process required by law.
the
minimum
amount
of
Barton therefore has not
established that he was denied due process at his disciplinary
proceeding
violation
or
of
respondent's
that
his
he
was
deprived
constitutional
motion
for
summary
of
good-time
rights.
judgment
credits
Accordingly,
will
be
in
the
granted and
Barton's habeas corpus petition will be denied.
III.
Certificate of Appealability
The habeas corpus petition filed in this case is governed by
the
AEDPA,
codified
at
28
U.S.C.
2253,
§
which
requires
a
certificate of appealability to issue before an appeal may proceed.
See
Hallmark v.
Johnson,
118
F. 3d 1073,
1076
(5th Cir.
(noting that actions filed under either 28 U.S.C.
require a certificate of appealability)
§
2254 or
1997)
§
2255
"This is a jurisdictional
prerequisi te 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.
v.
§
Cockrell,
123
2253(c) (1))
requires
a
S.
Ct.
1029,
1039
(2003)
,
II
(citing
Miller-El
28
U.S.C.
Rule 11 of the Rules Governing Section 2254 Cases
district
court
to
issue
or
deny
a
certificate
of
appealability when entering a final order that is adverse to the
petitioner.
-12-
A certificate of
petitioner
makes
"a
constitutional right,"
appealability will
substantial
28 U.S.C.
not
of
showing
§
issue
the
2253(c) (2),
unless
denial
the
of
a
which requires a
petitioner to demonstrate "that reasonable jurists would find the
district court's assessment of the constitutional claims debatable
or wrong."
Tennard v.
Dretke,
124
S.
Ct.
2562,
2565
(2004)
(quoting Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000)).
Under
the controlling standard this requires a petitioner to show "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
encouragement to proceed further.'"
Where
denial
of
relief
is
were
'adequate
to
deserve
Miller-El, 123 S. Ct. at 1039.
based
on
procedural
grounds,
the
petitioner must show not only 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."
Slack, 120 S. Ct. at 1604.
A district court may deny a certificate of appealability, sua
sponte,
without
Alexander v.
requiring
Johnson,
further
211 F. 3d 895,
briefing
898
or
argument.
(5th Cir.
2000).
See
For
reasons set forth above, the court concludes that jurists of reason
would not debate whether any procedural ruling in this case was
correct or whether the petitioner states a valid claim for relief.
Therefore, a certificate of appealability will not issue.
-13-
IV.
Conclusion and Order
Based on the foregoing, the court ORDERS as follows:
1.
Respondent Stephens's Motion for Summary Judgment
(Docket Entry No. 11) is GRANTED.
2.
The Petition for a Writ of Habeas Corpus By a
Person in State Custody (Docket Entry No.1) is
DENIED, and this action will be dismissed with
prejudice.
3.
A certificate of appealability is DENIED.
The Clerk shall provide a copy of this Memorandum Opinion and
Order to the parties.
SIGNED at Houston, Texas, on this the 20th day of May, 2015.
SIM LAKE
UNITED STATES DISTRICT JUDGE
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