Jon v. Stephens
Filing
14
MEMORANDUM OPINION AND ORDER granting 10 MOTION for Summary Judgment with Brief in Support, denying 1 Petition for Writ of Habeas Corpus. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ROY JON,
TDCJ #626840,
§
§
§
§
§
§
§
§
§
§
§
§
§
Petitioner,
v.
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice - Correctional
Institutions Division,
Respondent.
CIVIL ACTION NO. H-15-0624
MEMORANDUM OPINION AND ORDER
The petitioner,
the
Roy Jon
incarcerated
in
Texas
Correctional
Institutions
(TDCJ #626840),
Department
Division
of
is a
state inmate
Criminal
("TDCJ").
Jon
Justice
has
filed
a
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 a Motion for Summary Judgment with Brief in Support,
arguing that the petition should be dismissed.
(Docket Entry No.
10) .
records
The
respondent
also
has
provided
of
the
administrative investigation and disciplinary hearing, including an
audio CD of the proceeding.
(Docket Entry Nos. 11, 12).
Jon has
filed Objections to the Respondent's Motion for Summary Judgment.
(Docket Entry No.
13). After reviewing all of the pleadings,
administrati ve records,
grant
the
and the applicable
law,
the
respondent's motion and dismiss
this
action
the
court will
for
the
reasons explained below.
Background
I .
Jon is presently incarcerated as the result of a judgment and
sentence entered against him in Dallas County,
Texas. 1
In that
proceeding, Jon was convicted of delivery of a controlled substance
and sentenced to 25 years' imprisonment. 2
Jon does not challenge his underlying conviction. Instead, he
challenges the result of a prison disciplinary conviction lodged
against him at the Ellis Unit on October 13, 2014, in TDCJ Case No.
20150044186. 3 The administrative record shows that Jon was charged
with violating prison disciplinary rules by refusing to shave as
required by TDCJ grooming standards, which require prisoners to be
clean
shaven.4
investigation,
According
to
a
report
the
administrative
Jon admitted that he did not shave on the day in
question. 5
Docket Entry No. 1, at 2 .
2
Id.
3
Id. at 5.
Docket Entry No. 11-2, at 3.
5
of
Id. at 5.
-2-
At a hearing held on October 13, 2014, Jon denied violating
the grooming policy and argued the charging officer did not give
him an opportunity to shave before
against him. 6
filing disciplinary charges
The charging officer testified that
inmates are
given razors once a week and that Jon clearly had not shaved.? The
disciplinary hearing officer found that Jon had an opportunity to
shave
that
charging
week,
but
officer's
did
not
testimony
do
and
so. 8
his
After
report,
considering
the
the
disciplinary
hearing officer found Jon guilty as charged of refusing to comply
with
prison
officer
grooming
restricted
standards. 9
Jon's
privileges for 45 days.10
As
recreation,
punishment,
commissary
the
and
hearing
telephone
Jon also forfeited 20 days of previously
earned credit for good conduct (Le., "good-time credit") and his
"line class" or classification status was ordered to remain at
level three. 11
Jon filed a Step 1 grievance to challenge his conviction,
alleging
that
charging
officer
6
?
his
right
and
the
to
due
process
investigating
Docket Entry No. 12.
rd.
9
Docket Entry No. 11-2, at 3.
11
violated when
officers
falsified
rd. at 11; Docket Entry No. 12 (audio CD) .
8
10
was
rd.
rd.
-3-
the
the
offense report and failed to adhere to prison policy. 12
Jon alleged
further that the disciplinary hearing officer was biased against
him
and
that
his
conviction
was
not
supported
by
sufficient
evidence because the charging officer did not give Jon a direct
order to shave or an opportunity to shave before charging him with
refusing to comply with the grooming policy. 13
The assistant warden
who reviewed the grievance (Warden Gorsuch) affirmed the conviction
after noting
"no procedural errors"
and observing further that
there was "sufficient evidence to support a finding of guilt."14
In his Step 2 appeal, Jon objected that Warden Gorsuch failed
to comply with prison policies and procedures by addressing his
Step 1 grievance. 15
Jon argued further that prison officials were
enjoined by a court order from enforcing the TDCJ grooming policy
in
a
case
maintain
a
involving
another
quarter- inch
beard
prisoner
as
a
who
was
religious
not
allowed
exercise. 16
to
An
administrative official (K. Ward) found that there was "sufficient
evidence to sustain the charge and the finding of guilt" and that
12
Docket Entry No. 11-1, at 3.
13
Id.
14
rd. at 3-4.
15
rd. at 5 .
16
rd.
-4-
there were "no due process or procedural errors identified. ,,17
Accordingly, Jon's appeal was found to be "without merit.,,18
Jon now seeks a federal writ of habeas corpus to challenge his
conviction for refusing to comply with the TDCJ grooming policy.
Jon
contends
that
the
TDCJ grooming policy violates
the
First
Amendment because it imposes a substantial burden on the exercise
of his Muslim religious faith.19
Jon argues further that there was
insufficient evidence to support his conviction for refusing to
comply with TDCJ grooming standards. 20
that
the
against
disciplinary
him
because
hearing
he
In addition,
officer
would
not
questions to the charging officer. 21
was
allow
Jon contends
"partial"
Jon
to
or
pose
biased
certain
Jon argues further that he was
denied an opportunity to be heard because the disciplinary hearing
officer had already determined his guilt before Jon was allowed to
gi ve his testimony. 22
The respondent
argues
that
the petition must
be dismissed
because Jon failed to exhaust available administrative remedies by
raising
all
of
his
claims
during
process before seeking relief
17
both
steps
in federal
Id. at 6.
18
Id.
19
Docket Entry No. 1, at 8 .
20
Id. at 7, 8 .
21
Id. at 9-10.
22
Id.
-5-
of
court.
the
The
grievance
respondent
argues in the alternative that Jon's First Amendment claim is not
cognizable on habeas review and that his remaining claims fail for
other
reasons.
concludes
that
From its
the
own
review
disciplinary
of
the
conviction
record,
was
the
court
supported
by
sufficient evidence and did not violate due process. Accordingly,
Jon's petition will be dismissed.
II.
A.
Discussion
Exhaustion of Administrative Remedies
The respondent argues that Jon did not raise all of his claims
during both steps of the grievance process.
Because Jon failed to
properly present his claims to state authorities in compliance with
Texas
law,
the
respondent
argues
that
the
petition
should
be
dismissed for failure to exhaust available state administrative
remedies as required by 28 U.S.C. § 2254(b).
Under §
2254 (b),
a
petitioner
"must exhaust all
available
state remedies before he may obtain federal habeas corpus relief."
Sones
v.
Hargett,
prisoners
are
61
not
F.3d
410,
required
414
to
(5th
present
Cir.
1995).
claims
disciplinary convictions to the state courts in a
Texas
concerning
state habeas
corpus petition, because those claims are not cognizable on state
habeas review.
App. 1986).
a
prison
See Ex parte Brager, 704 S.W.2d 46, 46 (Tex. Crim.
Instead, Texas prisoners who challenge the result of
disciplinary
conviction must
two-step prison grievance process
-6-
that
seek
relief
through
the
is available within the
Texas Department of Criminal Justice. 23
Texas
Government
Code
requires
Id.
inmates
Section 501.008 of the
to
fully
exhaust
administrative grievance process before resorting to court.
the
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).
Although decisions about prison grievances are made by TDCJ,
and not
by a
state
court,
there
is
no
exhaustion requirement found in 28 U.S.C.
§
valid
reason
that
the
2254(b) should not also
apply where a prisoner is required to pursue the administrative
grievance process.
(1973)
See Prieser v. Rodriguez, 93 S. Ct. 1827, 1837
(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"). Thus, the Fifth Circuit has required Texas prisoners to
exhaust the TDCJ grievance process before seeking federal habeas
corpus review of disciplinary matters.
F.2d 254, 258 n.3 (5th Cir. 1993)
See Gartrell v. Gaylor, 981
(citing
Baxter v. Estelle, 614
23
"The Texas Department of Criminal Justice 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 "to the division grievance
investigation with the . . . Texas Department of Criminal Justice."
Id.
-7-
F.2d 1030,
grant
1031-32
habeas
(5th Cir.
corpus
relief
1980)
to
a
(" [A]
federal
petitioner
exhaust all administrative remedies,
who
court may not
has
failed
to
including an appeal to the
Director of Corrections."); Lerma v. Estelle, 585 F.2d 1297, 1299
(5th
Cir.
exhausted
1978)
"his
(holding
clearly
that
a
available
Texas
prisoner
administrative
who
had
not
remedies"
was
properly denied habeas relief in the district court)).
Jon makes no mention in his Step 1 grievance about his claim
that the TDCJ grooming policy imposes a substantial burden on his
Muslim religious
beliefs. 24
Al though
Jon
briefly mentions
his
Muslim religious beliefs in his Step 2 grievance,25 Jon was required
to present facts
in support of his claim in both steps of the
grievance process in order to exhaust his remedies with respect to
this allegation.
See Wright v. Hollingsworth,
(5th
(substantial
Cir.
2001)
compliance
is
260 F.3d 357,
not
sufficient;
358
a
prisoner must pursue the grievance remedy to conclusion to exhaust
remedies); Johnson v. Johnson, 385 F.3d 503, 517-18 (5th Cir. 2004)
(explaining that a prisoner need not present legal theories, but
must provide sufficient facts to give fair notice of a specific
problem).
Accordingly,
Jon
did
not
exhaust
his
administrative
remedies with respect to the first ground for relief raised in his
petition.
24
Docket No. 11-1, at 3.
25
Id. at 5.
-8-
Jon's remaining claims are referenced in his Step 1 grievance,
which asserts that there was insufficient evidence to support the
conviction and that the hearing officer was biased against him,
having predetermined Jon's guilt. 26
However, Jon does not raise any
of these claims in his Step 2 grievance. 27
By failing to raise his
claims in both steps of the grievance process, Jon did not exhaust
his administrative remedies with respect to his second, third and
fourth grounds for relief.
See Wright, 260 F.3d at 358.
As this review shows,
Jon did not present all of the claims
raised in his habeas corpus petition in both his Step 1 and Step 2
grievances.
By failing to present his claims properly to state
authorities in both steps of the grievance process,
fully exhausted his administrative remedies.
Jon has not
As a result, all of
Jon's claims are subject to dismissal for lack of exhaustion. See
Lerma, 585 F.2d at 1299.
B.
Jon's First Amendment Claim
The respondent
argues
that
Jon's
first
ground
for
relief,
which challenges the consti tutionali ty of the TDCJ grooming policy,
is not actionable in a federal habeas corpus proceeding.
Claims
concerning the conditions of confinement or prison procedures that
do not affect the timing of release from custody are actionable, if
at all, under 42
u.s.c.
26
1983.
See Carson v. Johnson,
rd. at 3.
27
§
rd. at 5-6.
-9-
112 F.3d
818, 820-21
(5th Cir. 1997)
("If a favorable determination would
not automatically entitle the prisoner to accelerated release .
the proper vehicle is a
§
1983 suit.")
(internal citations and
quotation marks omitted); see also Cook v. Texas Dep't of Criminal
Justice Transitional Planning Dep't,
1994)
("The core
issue
37 F.3d 166,
168
in determining whether a
(5th Cir.
prisoner must
pursue habeas corpus relief rather than a civil rights action is to
determine whether the prisoner challenges the 'fact or duration' of
his
confinement
or
merely
the
rules,
affecting 'conditions' of confinement.")
customs,
and
procedures
(citing Spina v. Aaron,
821 F.2d 1126, 1128 (5th Cir. 1987)).
The court agrees that Jon's constitutional challenge to the
TDCJ grooming policy is properly characterized as a claim governed
by
§
this
1983. 28 Indeed, the two cases that Jon relies upon in asserting
claim arise
under
§
1983 and the
Religious
Land Use
and
Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc-1(a).
See Holt v. Hobbs, 135 S. Ct. 853
F.3d 237
(5th Cir.
2013).
(2015); Garner v. Kennedy,
713
Rather than separate this claim and
recharacterize it as one under
§
1983, the court will dismiss this
To the extent that Jon claims that prison officials failed
to properly apply the grooming policy during the disciplinary
proceeding, it is well established that "a prison official's
failure to follow the prison's own policies, procedures or
regulations does not constitute a violation of due process, if
consti tutional minima are nevertheless met." Myers v. Klevenhagen,
97 F.3d 91, 94 (5th Cir. 1996) (citations omitted).
Jon does not
show that he was convicted in violation of the right to due process
in this case for reasons discussed further below.
28
-10-
claim because
the
record reflects
that
Jon failed
to properly
exhaust administrative remedies with respect to his First Amendment
challenge.
See 42 U.S.C.
1819, 1825
(2001); Woodford v. Ngo, 126 S. Ct. 2378 2387
§
1997e(a); Booth v. Churner, 121 S. Ct.
see also Jones v. Bock, 127 S. Ct. 910, 918-19 (2007)
(2006);
(confirming
that "[t] here is no question that exhaustion is mandatory under the
PLRA and that unexhausted claims cannot be brought in court")
Accordingly, the court does not address this claim any further.
C.
Jon's Due Process Claims
To the extent that Jon lost good-time credit as the result of
his disciplinary conviction,29 his remaining claims are governed by
the Due Process Clause of the Fourteenth Amendment to the United
States Constitution.
(1974) .
"(D)ue process is flexible and calls for such procedural
protections
Eldridge,
See Wolff v. McDonnell, 94 S. Ct. 2963, 2975
as
96 S.
the
particular
ct. 893, 902
S. Ct. 2593, 2600 (1972)).
situation
demands."
(quoting Morrissey v.
Mathews
v.
Brewer,
92
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."
Wolff, 94 S. Ct. at 2977.
In
29 To the extent that Jon temporarily lost privileges and was
retained at level 3 classification status, it is well established
that these sanctions do not implicate due process concerns.
See
Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997); Malchi v.
Thaler, 211 F.3d 953, 958-59 (5th Cir. 2000). Thus, Jon's loss of
good-time credits is the only sanction that is subject to review in
this federal habeas action.
-11-
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.
See id. at 2978-80.
support
In addition, there must be "some evidence to
findings
the
made
in
the
disciplinary
hearing."
Superintendent, Mass. Correctional Institution v. Hill, 105 S. Ct.
2768, 2775
(1985).
If these criteria are met, a prisoner cannot
show that he was punished without due process.
The record confirms that Jon was given advance notice of the
charges
and
afforded
a
disciplinary
hearing
where
he
had
an
opportunity to be heard by making a statement on his own behalf and
by presenting questions to the charging officer. 3D
Although there
is no right to counsel in the prison disciplinary context,
Baxter v.
Palmigiano,
96 S. Ct. 1551, 1556-57
(1976),
see
the record
reflects that a counsel substitute was appointed to assist Jon with
his disciplinary proceeding.
Jon does not claim that he received
insufficient notice of the charges, that he was denied witnesses in
his defense,
reason for
3D
or that he was denied a written statement of the
his
conviction.
Al though
Jon contends that he was
Docket Entry No. 11-2, at 3, 8-12.
-12-
denied an opportunity to present certain questions,
the record
discloses that the disciplinary hearing officer denied his request
to pose those questions because they were irrelevant. 31
A prisoner
is not entitled to introduce irrelevant matters at a disciplinary
hearing.
See Wolff,
94 S.
Ct.
at 2980
(recognizing that prison
officials have discretion to impose limits on evidence presented a
hearing "whether it be for irrelevance, lack of necessity, or the
hazards presented in individual cases").
Thus, Jon was not denied
an opportunity to present evidence.
Jon contends that the hearing officer was "partial" or biased
against
him
because
his
guilt
was
predetermined.
Other
than
pointing to the hearing officer's evidentiary rulings and questions
posed by him at the hearing,
which do not constitute proof of
impermissible bias, Jon does not allege facts demonstrating that he
was denied an
impartial decision-maker.
United States, 114 S. Ct. 1147, 1157
alone
almost
never
partiality motion.").
constitute
a
See,
(1994)
valid
~,
Liteky v.
("[J]udicial rulings
basis
for
a
bias
or
Without more, Jon's conclusory allegations
of bias are insufficient to raise an issue on habeas corpus review.
See Schlang v.
Heard,
691 F.2d 796,
799
(5th Cir.
1982)
("Mere
conclusory statements do not raise a constitutional issue in a
habeas case").
31
Docket Entry No. 11-2, at 10 (noting that three out of ten
proposed questions were excluded based on relevance); Docket Entry
No. 12 (denying the proposed questions based on relevance).
-13-
Likewise, although Jon 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. 32
A charging officer's report and testimony is sufficient
evidence to sustain the disciplinary conviction in this instance.
See Hudson v. Johnson, 242 F.3d 534, 537 (5th Cir. 2001)
(finding
that the offense report, standing alone, meets the "some evidence"
standard) .
Based
on
disciplinary
this
record,
conviction
Jon
failed
does
to
not
meet
procedural due process required by law.
establish
that
he
proceeding
or
was
that
denied
he
was
due
demonstrate
the
his
amount
of
As a result, Jon does not
process
deprived
minimum
that
of
at
his
disciplinary
good-time
credits
in
violation of his constitutional rights. Accordingly, his petition
will be dismissed.
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
(noting that actions filed under either 28 U.S.C.
require a certificate of appealability).
(5th
§
2254 or
Docket Entry No. 11-2, at 3.
-14-
1997)
§
2255
"This is a jurisdictional
prerequisi te because the COA statute mandates that
32
Cir.
'[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
ct.
S.
1029,
1039
(2003)
,"
(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.
A certificate of
petitioner
makes
"a
appealability will
substantial
constitutional right," 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
based
were
'adequate
to
deserve
Miller-El, 123 S. Ct. at 1039.
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
-15-
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
briefing
211 F.3d 895,
898
or
argument.
(5th Cir.
2000).
See
For
reasons set forth above, the court concludes that jurists of reason
would not debate whether the petitioner failed to exhaust state
remedies before filing his petition in federal court or whether his
disciplinary conviction was entered in violation of the Due Process
Clause.
Therefore, a certificate of appealability will not issue.
IV.
Conclusion and Order
Based on the foregoing, the court ORDERS as follows:
1.
Respondent Stephens's Motion for Summary Judgment
(Docket Entry No. 10) 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
2015.
:7
SIM LAKE
UNITED STATES DISTRICT JUDGE
-16-
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