Bush v. State, T-S

• Decision Date: 26 March 1993
• Docket Number: T-S
• Citation: 616 So.2d 394
• Parties: hocke BUSH v. STATE. CR 91-1872.
• Court: Alabama Court of Criminal Appeals

Page 394

616 So.2d 394

T-Shocke BUSH v. STATE.

CR 91-1872.

Court of Criminal Appeals of Alabama.

March 26, 1993.

T-Shocke Bush, pro se.

Harry Lyles and Andrew Redd, Dept. of Corrections, Montgomery, for appellee.

BOWEN, Presiding Judge.

T-Shocke Bush, the appellant, appeals from an order in the Escambia Circuit Court granting the State's motion to dismiss the appellant's petition for writ of habeas corpus and denying the petition without an evidentiary hearing.

The appellant complains that he was denied due process of law in three prison disciplinary hearings wherein he was found guilty of violating the following rules of the Alabama Board of Corrections: Rule 31, assault on another inmate; Rule 35, fighting without a weapon; Rule 56, failure to obey a direct order of a Department of Corrections official; and Rule 44, threatening a guard. His petition for writ of habeas corpus alleged: (1) that he was denied the right to call witnesses on his behalf at his disciplinary hearing, (2) that he was denied the right to an impartial hearing in violation of the equal protection clause because only white correctional officers are allowed to hear disciplinary charges against black inmates, and (3) that he was denied due process because the hearing officer failed to maintain a true and correct record of the disciplinary proceeding. The district attorney filed a motion to dismiss the petition, which was supported by copies of numerous prison documents. R. 15-82. The trial court dismissed the petition by written order, finding the petition "without merit." R. 83.

In his brief on appeal, the appellant's argument concerns a confrontation with Corrections Officer James Nall, which occurred on March 5, 1992. That incident resulted in Officer Nall's charging the appellant with violating Rule 56, failure to obey a direct order of a Department of Corrections official and with violating Rule 44, threatening a Department of Corrections official. A finding of guilty on both charges prompted the appellant to file his petition for writ of habeas corpus. However, in his brief, the appellant also complains of and has included in the record details concerning a disciplinary charge dated October 3, 1990, for assault on another inmate, and a disciplinary charge dated December 2, 1990, for fighting without a weapon, as contributing to the loss of privileges of which he now complains.

"This Court cannot become the original finder of fact. This Court is bound by the record and may not consider asserted facts which cannot be ascertained by the record." Richie v. State, 481 So.2d 454, 455 (Ala.Cr.App.1985). There has been no showing in the record of a lack of impartiality by the disciplinary committee which would serve as grounds for habeas corpus relief. " ' "The disciplinary board must be impartial meaning that a board member must not be the arresting officer, witness to the actual incident, the investigating officer, a party to the incident, the victim of the incident, or an official who has approval authority over the disciplinary." ' " Ex...