### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

FILED Donald Lee Taylor, Petitioner Below, Petitioner 

### April 20, 2018

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS vs) No. 17-0351 (Marshall County 17-C-38)

OF WEST VIRGINIA

Patrick Mirandy, Warden, St. Marys Correctional Center, and Loita Butcher, Acting Commissioner; West Virginia Division of Corrections, Respondents Below, Respondents



### MEMORANDUM DECISION

Petitioner Donald Lee Taylor, pro se, appeals the March 3, 2017, order of the Circuit Court of Marshall County dismissing his petition for writ of habeas corpus. Respondents Patrick Mirandy, Warden, St. Marys Correc tional Center, and Loita Butche r, Acting Commissioner, West Virginia Division of Corrections (collectively, “DOC”), by c ounsel John H. Boothroyd, filed a summary response in support of the circuit court’s order. 1 Petitioner filed a reply.

The Court has considered the parties’ briefs and the record on appe al. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21

of the Rules of A ppellate Procedure.

Petitioner is an inmate in the DOC’s custody. Prior to January 11, 2017, the DOC housed petitioner at the Northern Correct ional Facility (“NCF”) in Marshall County, West Virginia. While at the NCF, petitioner became in fatuated with a female correc tions officer. According to the incident report filed by the corrections officer, pe titioner expressed his interest in her by leaving a package of Skittles at her station as a gift, writing her various notes, and following her “to whatever post [she] was worki ng.” On November 13, 2016, after petitioner saw the corrections officer talking to other inmates, he wrote her a note that stated the following: “What other inmates

1 Patrick Mirandy, Warden, St. Marys Correcti onal Center, now has custody of petitioner. Accordingly, this Court has made the necessary substitution of par ties pursuant to Rule 41(c) of the West Virginia Rules of Appellate Procedure.

1are you talking to? You better watc h who you’re talking to, and you better watch your back. You’ll never hear from me again.” After receiving that note, the corrections officer never received any more notes from petitioner, but still “had issu es with him trying to approach [her].” The corrections officer filed her incident repor t on December 30, 2016, and petitioner was charged with violating disciplinary rule 1.25 which prohibits “compromising” a DOC employee. 2

Petitioner’s disciplinary hearing occu rred on January 10, 11, and 24, 2017. During the hearing, petitioner requested that the disciplina ry charge be dismissed on various procedural grounds. The hearing officer denied all such requests including petitioner’s claim that the disciplinary hearing was not completed within fi fteen business days as required by disciplinary rule 6.07(f). The hearing officer found petitioner guilty of “compro mising” the corrections officer in violation of disciplinary rule 1.25 based on the officer’s incident report and her testimony that it “was true and correct.” The hearing officer se ntenced petitioner to sixty days of punitive segregation with loss of privileges pursuant to disciplinary rules 5.01(b )(1) and (3). Petitioner appealed the hearing officer’s decision to the NCF’s warden and the DOC Commissioner, both of

whom affirmed the decision.

On March 1, 2017, petitioner filed a petition for writ of habeas corpus challenging the hearing officer’s decision in the Circuit Court of Marshall County. By order entered on March 3, 2017, the circuit court dismissed the petition, finding th at it was not in the best position to decide the issues raised therein. Petitioner and the DOC agree that, by the time the disciplinary hearing concluded on January 24, 2017, petitioner had b een transferred to Hu ttonsville Correctional Center (“HCC”) in Randol ph County, West Virginia. 3

We apply the following standard of review in habeas appeals:

“In reviewing challenges to the findings and conclusi ons of the circuit court in a habeas corpus action, we apply a thre e-prong standard of review. We review the final order and the ultimate dispositi on under an abuse of discretion standard; the underlying factual findings under a clearly erroneous st andard; and qu estions of law are subject to a de novo review.” Syl. Pt. 1, Mathena v. Haines , 219 W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, Anstey v. Ballard , 237 W.Va. 411, 787 S.E.2d 864 (2016).

On appeal, the parties dispute whether the circuit court’s dismissal of petitioner’s petition

was correct under State ex rel. McLaughlin v. Vickers , 207 W.Va. 405, 533 S.E.2d 38 (2000), and Adams v. Circuit Court of Randolph County , 173 W.Va. 448, 317 S.E.2d 808 (1984), which set

2 Inmate disciplinary rules, sanctions, and pr ocedural guidelines promulgated by the DOC

are set forth in its Policy Directive 325.00. See infra.

3 The record reflects that peti tioner appeared at the January 24, 2017, hearing by telephone.

2forth standards for transferring habeas petitions to the proper court dependi ng on the nature of the allegations therein. We need not resolve this dispute. As in Adams

, see 173 W.Va. at 451, 317 S.E.2d at 811, we find that, under the facts and circumst ances of this case, it is appropriate that we

decide the merits ourselves. Furthe rmore, we may “affirm the judgme nt of the lower court when it appears that such judgment is correct on any lega l ground disclosed by the record, regardless of the ground, reason[,] or theory assigned by the lo wer court as the basis for its judgment.” State v.

Coles , 234 W.Va. 132, 139 n.18, 763 S.E.2d 843, 850 n.18 (2014) (quoting Syl. Pt. 3, Barnett v. Wolfolk , 149 W.Va. 246, 140 S.E.2d 466 (1965)).

Petitioner bases most of his arguments (includi ng his challenge to be ing sentenced to sixty days of punitive segregation) on a memorandum or der entered by the Circuit Court of Randolph County during long-running litigation regarding th e conditions of confinement at HCC, not the NCF. We note that, when the final order in that litigation was appealed in Nobles v. Duncil , 202 W.Va. 523, 534, 505 S.E.2d 442, 453 (1998), we only part ially upheld the rulings therein, stating that “[w]e must be careful not to substitute our ju dgment for that of prison administrators.” Given

that the memorandum order includ ed in petitioner’s appendix is undated and incomplete, we decline to address any argument that is based on it pursuant to Rule 10(c)(7) of the Rules of Appellate Procedure. See State v. Honaker , 193 W.Va. 51, 56 n.4, 454 S.E.2d 96, 101 n.4 (1994) (stating that issues based on a “m issing record” will be ignored).

Petitioner further argues that his disciplinary proceeding failed to comply with the procedural guidelines set fort h in DOC Policy Directive 325.00. However, § I of the policy directive provides that the guideli nes therein “shall not be construe d as vesting with any inmate a liberty or property interest greater than that, wh ich is otherwise provided by law.” Therefore, we find that the hearing officer’s procedural ruling s should be reviewed for an abuse of discretion because that standard generally applies to such rulings. See Syl. Pt. 1 , McDougal v. McCammon

, 193 W.Va. 229, 455 S.E.2d 788 (1995). Base d on our review of the record, we conclude that the hearing officer did not abuse her discretion in denying petitioner’s requests to dismiss the disciplinary charge on various pr ocedural grounds including his claim that the disciplinary hearing was not completed within the time speci fied in disciplinary rule 6.07(f).

We further find that petitioner was not denied due process of law. In syllabus point one of

Nobles , we reiterated that due process requirement s for prison disciplinary hearings are:

“(a) Written notice to the inmate of th e claimed violation; (b) Disclosure to him of the evidence against him; (c) O pportunity to be heard and to present witnesses and documentary evidence; (d) The right to confront and cross-examine adverse witnesses (unless th e hearing officer specifical ly finds good cause for not allowing confrontation); (e) A neutral a nd detached hearing body; (f) A written statement by the fact-finders of the evidence relied on and reasons for discipline; and (g) The right to counsel if the state is represented by a lawyer.” Syllabus Point 1, Harrah v. Leverette , 165 W.Va. 665, 271 S.E.2d 322 (1980).

202 W.Va. at 525, 505 S.E.2d at 444.

3We find that only the first requirement could c onceivably have been violated in this case. 4
Petitioner alleges that he did not have adequate notice of the charge against him because the

corrections officer did not include many dates in her incident repor t. We find that the corrections officer included three dates in her report. First, the corrections officer stated that petitioner’s inappropriate conduct towards her began on Nove mber 6, 2016, when he left the package of Skittles at her station. Second, the corrections officer indicated that November 13, 2016, was a pivotal date because that was the night when peti tioner wrote her the note that stated: “What other inmates are you talking to? You better watch who you’re talking to, and you better watch your back. You’ll never hear from me again.” Third, th e corrections officer indicated that, even after petitioner stopped writing her notes, he still tried “to approach” her at various times up until the date of the report, December 30, 2016. Therefore, based on our review of the December 30, 2016, incident report, we find that pe titioner had adequate notice of the correctional officer’s timeline of his inappropriate conduct towards her.

Finally, petitioner argues that insufficient evidence existed to sustain his conviction pursuant to disciplinar y rule 1.25. We disagr ee and note that the standard for upholding a disciplinary conviction requires on ly that there is some evidence to support the conviction. See

Snider v. Fox , 218 W.Va. 663, 666-67, 627 S.E.2d 353, 356-57 (2006). The relevant question is

“whether there is any evidence in the record that could support the conclusi on reached by the [hearing officer].” Id. at 667, 627 S.E.2d at 357 (quoting Superintendent, Massachusetts Corr. Inst., Walpole v. Hill , 472 U.S. 445, 455-56 (1985)) (emphasi s added). We give substantial deference to the hearing officer’s findings because ascertaining whet her this standard is met “does not require examination of the entire record, i ndependent assessment of the credibility of witnesses, or weighing of the evidence.” Id. (quoting Walpole , 472 U.S. at 455).

Petitioner notes that, during his cross-examinat ion of the corrections officer, she testified

that he never asked her to break any law or regulation for him. Ho wever, we find that disciplinary rule 1.25 also prohibits “compromising” a DOC employee by causing him or her to “jeopardize security” or “engage in poor work performance.” In this case, it is obvious from the corrections officer’s incident report that she found petiti oner’s improper conduct troubling. The corrections officer stated that, in petitioner’s November 13, 2016, note to her, he “seemed very agitated with [her].” The corrections officer further stated that , both before and after receipt of that note, petitioner would follow her “to whatever post [she] was working” or attempt “to approach” her. In short, because of petitioner’s infatuation with the corrections officer, he dist racted the officer from doing her job which was to help ensure security at the NCF. Therefore, based on our review of the record, we find that there was some evidence that petitioner “compromised” the corrections officer and conclude that the hearing officer did not er r in finding a violation of disciplinary rule 1.25. Given that petitioner’s arguments ar e without merit, we find that the circuit court’s dismissal of his habeas petition was proper.

4 We note petitioner’s allegation that the hearing officer was biased against him, but find that an inmate’s mere disagreement with the hear ing officer’s rulings will not support a claim that there was no neutral and detached hearing body.

4For the foregoing reasons, we affirm the circuit court’s March 3, 2017, order dismissing the petition for writ of habeas corpus.

Affirmed.

ISSUED : April 20, 2018

CONCURRED IN BY :

Chief Justice Margaret L. Workman

Justice Robin Jean Davis

Justice Menis E. Ketchum Justice Allen H. Loughry II

Justice Elizabeth D. Walker

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