1

Petitioner has listed Charles Bell as respondent in this case. Douglas Dretke is the TDCJ Director, and thus is the party

having custody of petitioner. 

2

Other punishment with which petitioner was assessed constituted changes in the conditions of petitioner’s

confinement and does not implicate the Due Process Clause of the United States Constitution. See Sandin v. Conner, 515

U.S. 472, 478, 115 S.Ct. 2293, 2297 (1995); Madison v. Parker, 104 F.3d 765, 767 (5th Cir. 1997).

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

ROBBY DALE HON, §

§

Petitioner, §

§

v. § 2:05-CV-0121

§

DOUGLAS DRETKE, Director, §

Texas Department of Criminal §

Justice, Institutional Division, §

§

 Respondent.1 §

REPORT AND RECOMMENDATION TO DENY PETITION

FOR A WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY

Before the Court is a Petition for a Writ of Habeas Corpus by a Person in State Custody

filed by petitioner ROBBY DALE HON. By his habeas application, petitioner challenges a

January 14, 2005 prison disciplinary proceeding wherein petitioner was found guilty of the

disciplinary offense of causing a disturbance, and was punished with the forfeiture of 50 days

previously accrued good time credits.2

 For the reasons hereinafter set forth, it is the opinion of

the undersigned United States Magistrate Judge that petitioner’s petition for a writ of habeas

corpus should be DENIED.

I.

 

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PROCEDURAL HISTORY

Respondent DOUGLAS DRETKE has lawful and valid custody of petitioner pursuant to

a judgment and sentence out of the 9th Judicial District Court of Montgomery County, Texas, in

Cause No. 03-09-06599-CR, for the offense of possession of a controlled substance, possession of

a chemical with intent to manufacture. Petitioner pleaded guilty to the offense and on January 15,

2004, petitioner was sentenced to eight (8) years imprisonment in the Texas Department of

Criminal Justice. 

On or about January 4, 2005, petitioner was accused, in Disciplinary Case No.

20050125469, with the offense of violating prison rules, specifically, causing a disturbance, and

was informed of his right to call and question witnesses, to present documentary evidence, to be

represented by counsel substitute, and to call and question the charging officer at the hearing. 

Petitioner has not provided the Court with the disciplinary hearing date but the records do show

one was held. At the disciplinary hearing, petitioner was found guilty of the charged offense and

assessed a punishment which included forfeiture of 50 days of good time credits. 

Petitioner filed a Step 1 Offender Grievance Form which was denied on February 15,

2005. Petitioner then filed a Step 2 Offender Grievance Form and such was denied on

March 8, 2005.

II.

GROUNDS

In support of his contention that the evidence was insufficient to support a finding of guilt,

petitioner presents the following grounds:

A. The disciplinary captain (presumably the Hearing Officer) read the offense

description before taking a statement from the charging officer thereby leading the

witness and tainting his testimony;

 

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B. The charging officer changed his statement at the hearing;

C. The offense description says petitioner was arguing with staff members however,

such fact is not in the charging officer’s statement;

D. The Step 2 grievance officer did not investigate the grievance because she failed to

listen to the hearing tape;

E. The offense description says the accusing officer had to use gas to break up the

disturbance but this is not listed in the charging officer’s statement; and

F. The charging officer used minor force in response to the disturbance, as evidenced

by the use of gas, in violation of prison procedures. 

III.

MERITS

The undersigned finds the instant habeas application should be denied on the merits. 

Petitioner has not shown the challenged forfeiture of accumulated good conduct time was in

violation of the United States Constitution. Accordingly, petitioner is not entitled to federal

habeas corpus relief. 

In order to prevail in a federal habeas corpus proceeding, petitioner must show his due

process rights were violated during the state prison disciplinary process. The United States

Supreme Court has set out the due process to which a prisoner is entitled during a disciplinary

proceeding. In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the

Court held that while disciplinary proceedings are not part of the criminal prosecution process

and, therefore, the full panoply of rights does not apply, there are certain minimal due process

provisions required to be satisfied. Those are: (1) advance written notice of the charges; (2) an

opportunity to call witnesses and/or present documentary evidence when such presentation is not

unduly hazardous to institutional safety or correctional goals; and (3) a written statement by the

fact finder of the evidence relied upon and the reasons for the disciplinary action.

 

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Petitioner does not specifically allege he was denied any procedural due process

protections established by Wolff in any of the disciplinary proceedings. Further, review of the

disciplinary proceeding records reveals petitioner was afforded the full panoply of constitutional

procedural due process requirements under Wolff. Consequently, petitioner is not entitled to

federal habeas corpus relief for any constitutional procedural deficiencies. 

It is the law of the Fifth Circuit that the findings of a prison disciplinary hearing shall not

be disturbed unless they are arbitrary and capricious. Banuelos v. McFarland, 41 F.3d 232, 234

(5th Cir. 1995). Federal courts do not review the sufficiency of the evidence since a finding of

guilt requires only the support of some facts, or any evidence at all. Gibbs v. King, 779 F.2d

1040, 1044 (5th Cir. 1986). Consequently, in order to prevail in a challenge to a disciplinary

proceeding by way of federal habeas corpus, a petitioner must establish that there was no

evidence to support the disciplinary adjudication. Petitioner cannot meet this burden as there

clearly was some evidence, as demonstrated by the offense report, the charging officer’s

testimony, and staff witness reports. Petitioner’s allegation that the Hearing Officer

misconstrued or misapplied the evidence is without merit. It is within the discretion of the

Hearing Officer to take testimony and to weigh the evidence. This was done. To the extent

petitioner complains about the Hearing Officer leading the witness and the discrepancies

between the charging officer’s testimony and the offense report, such claims are merely

challenges to the sufficiency and credibility of the evidence and are outside the scope of habeas

review. The complaints about the grievance officer’s failure to listen to the hearing tape and the

violation of prison procedure by the charging officer are not cognizable. 

The Court finds that the rights set forth in Wolff have not been abridged, and that there

 

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was “some evidence” to support the disciplinary hearing officer’s decision. Based upon the

foregoing, it is the opinion of the undersigned United States Magistrate Judge that petitioner’s

habeas corpus application challenging alleged due process violations in a prison disciplinary

case should be DENIED.

V.

RECOMMENDATION

It is the RECOMMENDATION of the United States Magistrate Judge to the United

States District Judge that the Petition for a Writ of Habeas Corpus by a Person in State

Custody filed by petitioner ROBBY DALE HON be DENIED.

VI.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a file-marked copy of this Report and

Recommendation to petitioner by the most efficient means available. 

IT IS SO RECOMMENDED. 

ENTERED this 11th day of May 2005.

/s/ Clinton E. Averitte 

CLINTON E. AVERITTE

UNITED STATES MAGISTRATE JUDGE

* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In

the event a party wishes to object, they are hereby NOTIFIED that the deadline for filing

objections is eleven (11) days from the date of filing as indicated by the file mark on the first

page of this recommendation. Service is complete upon mailing, Fed. R. Civ. P. 5(b), and the

parties are allowed a 3-day service by mail extension, Fed. R. Civ. P. 6(e). Therefore, any

objections must be filed on or before the fourteenth (14th) day after this recommendation is

filed. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b); R. 4(a)(1) of Miscellaneous Order No. 6, as 

authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern

District of Texas. 

 

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Any such objections shall be made in a written pleading entitled “Objections to the

Report and Recommendation.” Objecting parties shall file the written objections with the United

States District Clerk and serve a copy of such objections on all other parties. A party’s failure to

timely file written objections to the proposed findings, conclusions, and recommendation

contained in this report shall bar an aggrieved party, except upon grounds of plain error, from

attacking on appeal the unobjected-to proposed factual findings, legal conclusions, and

recommendation set forth by the Magistrate Judge in this report and accepted by the district

court. See Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996);

Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988). 

 

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