Bostic v. Carlson, s. 88-1804

• Decision Date: 06 February 1988
• Docket Number: Nos. 88-1804,s. 88-1804
• Citation: 884 F.2d 1267
• Parties: Leeroy B. BOSTIC, Jr., Petitioner/Appellant, v. Peter CARLSON, Warden, Respondent/Appellee. to 88-1812 and 88-1814.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1267

884 F.2d 1267

Leeroy B. BOSTIC, Jr., Petitioner/Appellant, v. Peter CARLSON, Warden, Respondent/Appellee.

Nos. 88-1804 to 88-1812 and 88-1814.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 6, 1988. ^*

Decided Sept. 7, 1989.

LeeRoy B. Bostic, Jr., Phoenix, Ariz., in pro per.

No appearance for respondent-appellee.

Appeal from the United States District Court for the District of Arizona.

Before GOODWIN, Chief Judge, ALARCON and NELSON, Circuit Judges.

NELSON, Circuit Judge:

Overview:

In this consolidated appeal, LeeRoy B. Bostic, Jr., appeals pro se the denial of his petitions for habeas corpus pursuant to 28 U.S.C. sec. 2241(c). We find the claims to be without merit and affirm the district court's dismissals. We discuss them ad seriatim below.

Standard of Review:

We review de novo the district court's dismissal of a petition for writ of habeas corpus. See, e.g., Zimmerlee v. Keeney, 831 F.2d 183, 185 (9th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 2851, 101 L.Ed.2d 888 (1987). We also review de novo the district court's legal conclusion that some evidence in the record supports the disciplinary committee's findings. Id.; Cato v. Rushen, 824 F.2d 703, 705 (9th Cir.1987). We defer to the disciplinary committee's factual findings unless they are clearly unsupported. See, e.g., Smith v. Rabalais, 659 F.2d 539, 545 (5th Cir.), cert. denied, 455 U.S. 992, 102 S.Ct. 1619, 71 L.Ed.2d 853 (1981). The voluntariness of a guilty plea is a question of law not subject to deferential review. Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir.1986). The effectiveness of counsel is a mixed question of law and fact, reviewed de novo. Reiger v. Christensen, 789 F.2d 1425, 1427 (9th Cir.1986).

Discussion:

Habeas corpus jurisdiction is available under 28 U.S.C. sec. 2241 for a prisoner's claims that he has been denied good time credits without due process of law. Preiser v. Rodriguez, 411 U.S. 475, 487-88, 93 S.Ct. 1827, 1835-36, 36 L.Ed.2d 439 (1973); Toussaint v. McCarthy, 801 F.2d 1080, 1096 n. 14 (9th Cir.1986). Habeas corpus jurisdiction is also available for a prisoner's claims that he has been subjected to greater restrictions of his liberty, such as disciplinary segregation, without due process of law. See, e.g., McCollum v. Miller, 695 F.2d 1044, 1046 (7th Cir.1982); McNair v. McCune, 527 F.2d 874, 875 (4th Cir.1975). Habeas corpus jurisdiction also exists when a petitioner seeks expungement of a disciplinary finding from his record if expungement is likely to accelerate the prisoner's eligibility for parole. McCollum, 695 F.2d at 1047. Prisoners have a liberty interest created by 18 U.S.C. sec. 4161 in receiving good-time credits. See, e.g., Jackson v. Carlson, 707 F.2d 943, 946-47 (7th Cir.), cert. denied, Yeager v. Wilkinson, 464 U.S. 861, 104 S.Ct. 189, 78 L.Ed.2d 167 (1983). The federal regulations also create a liberty interest in not being subjected to disciplinary segregation without due process of law. See Hewitt v. Helms, 459 U.S. 460, 466-72, 103 S.Ct. 864, 868-72, 74 L.Ed.2d 675 (1983) (holding that a state statutory framework and the punitive nature of segregation created a liberty interest); Zimmerlee v. Keeney, 831 F.2d 183, 186 (9th Cir.1987) (assuming that habeas petitioner had a protected liberty interest in not being subject to disciplinary segregation). In each case, appellant seeks relief from the imposition of disciplinary sanctions involving forfeiture of statutory good time or segregation from the general prison population. In each case, appellant seeks expungement of the incident from his disciplinary record. Therefore, we assume that in each case habeas corpus jurisdiction exists and appellant had a liberty interest protected by due process.

88-1804:

Appellant seeks habeas relief from convictions by the Institution Disciplinary Committee (IDC) for fighting with another prisoner and refusing to obey an order from a member of the staff. Appellant contends that he was denied due process because the evidence was insufficient to support the conviction. The district court dismissed his petition on the grounds that his allegations did not state a claim upon which the court could grant relief and that the disciplinary decision was supported by sufficient evidence.

We affirm. The Supreme Court has held that although "a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime," Wolff v. McDonnell, 418 U.S. 539, 555, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974), his interest in due process "must be accommodated in the distinctive setting" and "legitimate institutional needs" of a prison, Superintendent v. Hill, 472 U.S. 445, 454-55, 105 S.Ct. 2768, 2773-74, 86 L.Ed.2d 356 (1984). The Court has held that there need only be "some evidence" supporting the findings by a prison disciplinary committee in order to satisfy due process. Id. at 454, 105 S.Ct. at 2773; Zimmerlee, 831 F.2d at 186. "[T]he relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Hill, 472 U.S. at 455-56, 105 S.Ct. at 2773-75. The IDC relied on an eyewitness account by the reporting officer and a statement by an inmate witness that he had heard Bostic challenge another inmate to fight. This is sufficient evidence to support the judgment.

88-1805; 88-1806:

These habeas petitions are identical. Appellant seeks habeas relief from a disciplinary action for possession of contraband. In a routine search, a guard discovered thirty-four stolen sandwiches in a laundry bag underneath the Appellant's bed. A hearing was held in which Bostic testified that he did not own the laundry bag and did not know who had placed the sandwiches there. The guard stated that the Appellant earlier had admitted having stolen the sandwiches to supplement his income. Bostic summoned a witness, who was unable to offer any pertinent information. The IDC found appellant guilty of possession of contraband and imposed a sanction of forfeiture of thirty days of Statutory Good Time (SGT) credit toward parole.

Appellant argues that he was denied due process because the hearing was postponed twice; he was found guilty of a disciplinary violation with which he was not charged in the incident report; and the evidence was insufficient to support a finding of guilt. The district court dismissed pursuant to Rules 1(b) ¹ and 4 ² of the Rules Governing Section 2254 Cases in the United States District Courts, on the ground that the petitioner failed to show how either conviction for a code violation not listed in the incident report or the eight day delay prejudiced him in his ability to defend the disciplinary charge.

The petitioner has failed to present sufficient facts to support his claim of denial of due process. Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir.1984). Appellant does not cite any reasons why having two hearings convened before the hearing at which the IDC addressed his case deprived him of due process. The hearing was held within eight days of the date the incident was reported. The prison regulations provide for a minimum waiting period of one day between notice and the IDC hearing and state that staff may suspend disciplinary proceedings for up to two weeks while informal resolution is attempted. Therefore, the regulations did not create a reasonable expectation in having a hearing within less than eight days. Even if the regulations stated that a prisoner was entitled to a hearing within less than eight days, the IDC's failure to meet that guideline would not alone constitute a denial of due process. See Hewitt, 459 U.S. at 477, 103 S.Ct. at 874 (holding that due process requires that a hearing be held within a "reasonable" time after confinement to administrative segregation, and finding that five days "plainly satisfied" this requirement); Carter v. Fairman, 675 F.Supp. 449, 451 (N.D.Ill.1987) (holding that even if the prison disciplinary committee failed to follow a state administrative regulation requiring the committee to convene within eight calendar days after commission of prison offense or its discovery, the noncompliance did not of itself violate due process).

Nor does appellant assert that the officer's description of the incident as "stealing" rather than as "possession of contraband" in the incident report deprived him of the opportunity to present a proper defense. The incident report described the factual situation that was the basis for the finding of guilt of possession of contraband and alerted Bostic that he would be charged with possessing something he did not own. Cf. Wolff, 418 U.S. at 563-64, 94 S.Ct. at 2978-79 (stating that "the function of [the] notice [of a claimed violation] is to give the charged party a chance to marshal the facts in his defense and to clarify what the charges are"). The incident report adequately performed the functions of notice described in Wolff. See id.

Finally, we reject appellant's contention that the evidence was insufficient to support a conviction. The IDC relied on an eyewitness account by the reporting officer and a statement by a cellmate. This evidence was sufficient. Hill, 472 U.S. at 455-56, 105 S.Ct. at 2773-74; Zimmerlee, 831 F.2d at 186.

88-1807:

Appellant was found guilty by the IDC of attempting to bribe a prison official to bring marijuana into the prison. He received sanctions of fifteen days of disciplinary segregation and forfeiture of sixty days SGT. He seeks habeas relief, contending that the hearing in which he was found guilty did not meet the requirements of due process because the evidence was insufficient to support the IDC decision and the decision-maker was biased. The district court dismissed the habeas petition because the petitioner failed to allege specific facts to support either allegation.

We affirm. The reporting officer's testimony constituted sufficient evidence to support the finding of guilty. See Zimmerlee, 831...