Summerford v. State, 5 Div. 946

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: BOWEN
• Citation: 466 So.2d 182
• Parties: Mark Ed SUMMERFORD v. STATE.
• Decision Date: 12 February 1985
• Docket Number: 5 Div. 946

Page 182

466 So.2d 182 Mark Ed SUMMERFORD
v.
STATE. 5 Div. 946. Court of Criminal Appeals of Alabama. Feb. 12, 1985.

G. Houston Howard II of Howard, Dunn, Howard & Howard, Wetumpka, for appellant.

Charles A. Graddick, Atty. Gen., and Bernard B. Carr, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

This is an appeal from the denial of a petition for writ of habeas corpus. Petitioner alleges that he was denied procedural due process in a prison disciplinary proceeding which resulted in the loss of two weeks' store privilege and two weeks' extra duty.

Specifically, petitioner alleges that the disciplinary report does not show that the testimony of the arresting officer was presented under oath, that there was no substantial evidence offered to support the charge, and that the statement by the factfinders of the evidence relied on and the reasons for the disciplinary action does not satisfy the requirements of Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

We express no opinion on the merits of petitioner's claims since we conclude that the procedural due process requirements of Wolff v. McDonnell simply do not apply to the deprivations suffered by petitioner here. The procedures outlined by the United States Supreme Court in Wolff are triggered either by the loss of

Page 183

good time credits or by major changes in the conditions of confinement, such as the imposition of disciplinary segregation, neither of which petitioner encountered.

"Here, [referring to solitary confinement] as in the case of good time, there should be minimum procedural safeguards as a hedge against arbitrary determination of the factual predicate for imposition of the sanction. We do not suggest, however, that the procedures required by today's decision for the deprivation of good time would also be required for the imposition of lesser penalties such as the loss of privileges."

Wolff v. McDonnell, 418 U.S. 571-72 n. 19, 94 S.Ct. 2982 n. 19.

Although some lower federal courts have extended the protections guaranteed by Wolff to disciplinaries resulting only in the loss of privileges, see, e.g., Ward v. Johnson, 667 F.2d 1126 (4th Cir.1981) (loss of recreational privileges), neither the United States Supreme Court interpreting the federal writ of habeas corpus nor the Alabama Supreme Court interpreting our State habeas remedy has required Wolff procedures for the mere deprivation of privileges. See Baxter v. Palmigiano, 425 U.S. 308, 323, 96 S.Ct. 1551, 1560, 47 L.Ed.2d 810 (1976). Petitioner directs our attention to Helveston v. State, 454 So.2d 1051 (Ala.Cr.App.1984), wherein we applied the Wolff procedural requirements to a disciplinary resulting in deprivations less drastic than removal of good time credits. Concurring specially in Helveston, Judge Taylor observed the following:

"This disciplinary proceeding did not result in the loss of good time. It should be noted that we are here accepting a petition for writ of habeas corpus challenging disciplinary proceedings which do not involve the loss of good time and which do not affect the liberty status of the inmate."

While the petitioner in Helveston did not lose good time, he did receive "90 days in the segregation unit" in addition to the withdrawal of certain privileges. We judged his disciplinary hearing in light of Wolff procedures because as, the Supreme Court observed in Wolff, either the loss of good time or disciplinary confinement triggers the due process requirements mandated in that case. Even prior to Helveston, we indicated that loss of good time was not the sole occurrence which would trigger the requirements of Wolff. In Fielding v. State, 409 So.2d 964 (Ala.Cr.App.1981), we noted that, even if the withdrawal of petitioner's good time were ignored, the minimum requirements of due process would apply to his disciplinary, because his custody classification was changed from minimum to maximum. 409 So.2d at 965. Thus, Helveston is neither a departure from the established principles of procedural due process enunciated in Wolff nor from the prior pronouncements of this court.

The initial inquiry in any prison disciplinary...