Ramer v. Kerby, 90-2284

• Decision Date: 18 June 1991
• Docket Number: No. 90-2284,90-2284
• Parties: Bryan R. RAMER, Petitioner-Appellant, v. Dareld KERBY, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1102

936 F.2d 1102

Bryan R. RAMER, Petitioner-Appellant, v. Dareld KERBY, Respondent-Appellee.

No. 90-2284.

United States Court of Appeals Tenth Circuit.

June 18, 1991.

Bryan R. Ramer, pro se.

Tom Udall, Atty. Gen., and Gail MacQuesten, Asst. Atty. Gen., State of N.M., for respondent-appellee.

Before ANDERSON, TACHA and BRORBY, Circuit Judges.

TACHA, Circuit Judge.

Petitioner-appellant Bryan Ramer appeals a denial of a petition for writ of habeas corpus. ¹ On appeal, Ramer argues: (1) his due process rights were violated by the prison's policy of disallowing prisoners to call staff members as witnesses at disciplinary proceedings, (2) he was charged and convicted of a criminal felony statute in the disciplinary hearing without the protections afforded by the due process clause, and (3) the disciplinary committee misinterpreted the criminal felony statute it applied to him. Ramer also contends the disciplinary committee abused its discretion and violated his due process rights by relying on allegedly false statements in the misconduct report and the magistrate's handling of the petition constituted dilatory tactics in violation of the constitution. We exercise jurisdiction under 28 U.S.C. Sec. 1291, grant the certificate of probable cause, and affirm.

While serving his sentence on multiple counts of assault on a peace officer, aggravated battery upon a peace officer, and escape, Ramer had an altercation with a prison guard, Joseph Padilla, at the Central New Mexico Correctional Facility at Los Lunas, New Mexico. Padilla filed a misconduct report alleging three violations, including "30-22-24, Battery Upon a Police Officer." After a hearing, the prison disciplinary committee dismissed two charges but found Ramer "guilty of a Major Report of Charge, NMSA 30-22-24, Battery upon a peace officer." The committee imposed sanctions of fifteen days segregation and loss of eighty-five days' good time credits.

Ramer appealed this decision to the Hearing Officer and then the Secretary of Corrections, both of whom upheld the disciplinary committee's ruling. He then filed a petition for writ of habeas corpus in the state district court, which was denied. Ramer sought review of that decision with the New Mexico Supreme Court. That court denied his petition for writ of certiorari. Ramer then filed a petition for writ of habeas corpus in the district court.

At the disciplinary hearing, Ramer had requested that three members of the prison staff testify as witnesses. Although these staff members did not see the altercation between Ramer and Padilla, they observed the men immediately after the incident. Ramer claims the testimony of these staff members would directly relate to the credibility of statements made by Padilla in his disciplinary report.

Official policy at the Central New Mexico Correctional Facility prohibits inmates from calling staff members as witnesses at disciplinary hearings. Inmates who want the committee to consider a staff member's testimony must submit written questions. If the disciplinary committee chairperson finds the questions are relevant and not cumulative, the chairperson will contact the staff member for a written response. Ramer refused to submit written questions pursuant to the policy. Based on his refusal to submit questions, the disciplinary committee concluded Ramer had "waived" his right to obtain testimony from these witnesses.

Ramer contends the policy restricting a prisoner's right to call staff members as witnesses in his defense at a disciplinary hearing violates his due process rights. Although prisoners retain due process rights, these rights "are subject to restrictions imposed by the nature of the regime to which they have been lawfully committed." Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974). In Wolff, the Supreme Court noted "prison disciplinary proceedings are not part of a criminal prosecution, and the full panopoly of rights due a defendant in such proceedings does not apply." Id. The Court has held, however, a prisoner in a disciplinary hearing must have the opportunity "to call witnesses and present documentary evidence in his defense, when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals." Id. at 566, 94 S.Ct. at 2979. The scope of a prisoner's right to call and confront witnesses is committed to the sound discretion of prison officials. Officials may deny this right if they are convinced its exercise would threaten legitimate penological interests. Id. at 569, 94 S.Ct. at 2981.

The Court in Wolff further explained: "Although we do not prescribe it, it would be useful for the Committee to state its reasons for refusing to call a witness, whether it be for irrelevance, lack of necessity, or the hazards presented in individual cases." (emphasis added). Id. at 566, 94 S.Ct. at 2980. The circuit courts have interpreted this language to require that prison officials determine on a individual basis whether permitting an inmate to call or confront a particular witness would threaten institutional safety or correctional goals. The Ninth Circuit has held a policy prohibiting inmates from calling staff members as witnesses without proof of any facts establishing a threat to institutional safety is unconstitutional. Bartholomew v. Watson, 665 F.2d 915, 918 (9th Cir.1982). As the court explained: "A blanket proscription against the calling of certain types of witnesses in all cases involving institutional security is an overreaction which violates minimal due process." Id. at 918. Similarly, the Sixth Circuit has held a policy excluding witnesses under all circumstances is unconstitutional because "Wolff requires that officials make an individualized decision on the facts of each case." King v. Wells, 760 F.2d 89, 93 (6th Cir....