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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

HOWARD LEE BARNES, §

a.k.a. Professor Ali-Hamza §

§

Petitioner, §

§

v. § 2:04-CV-0342

§

NATHANIEL QUARTERMAN, Director, §

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

§

Respondent. §

REPORT AND RECOMMENDATION

TO DENY PETITION FOR A WRIT OF HABEAS CORPUS

Petitioner HOWARD LEE BARNES, a.k.a. Professor Ali-Hamza, a state prisoner, has

filed with this Court a Petition for a Writ of Habeas Corpus by a Person in State Custody

challenging the result of a state prison disciplinary proceeding and the resultant loss of

previously accrued good time credits. For the reasons set forth below, it is the opinion of the

undersigned United States Magistrate Judge that petitioner’s federal application for habeas

corpus relief should be DENIED.

I.

PROCEDURAL HISTORY

On July 6, 1993, petitioner was convicted of the offense of burglary of a vehicle, repeat

offender, in the 258th Judicial District Court of Jefferson County, Texas, and sentenced to twenty

 

 

FILED

APRIL 19, 2007

 

 

 

 

 

 KAREN MITCHELL

CLERK, U.S. DISTRICT COURT 

 

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(20) years imprisonment in the Texas Department of Criminal Justice, Correctional Institutions

Division. Further details of petitioner’s holding conviction are not necessary for a resolution of

the instant case.

On or about October 6, 2004, petitioner was accused, in Disciplinary Case No.

20050039854 with the offense of failure to obey an order. Specifically, it appears petitioner was

alleged to have been standing at the door of his cell, yelling, and refused to cease when ordered

to do so. After a disciplinary hearing, a Hearing Officer found petitioner guilty of the charged

offense and assessed punishment to include, as relevant here, the loss of thirty (30) days

previously accrued good time credits. Following the guilty finding in the disciplinary

proceeding, petitioner filed a Step 1 grievance arguing the charging officer “falsely wrote [him]

up.” On October 21, 2004, after a review of all related investigative documentation, petitioner’s

grievance was denied with the findings that the case was presented to a fair and impartial hearing

officer, that based on the evidence presented a guilty verdict was appropriate, that there were no

procedural errors noted, and that the punishment assessed was within the guidelines. Petitioner

also filed a Step 2 grievance wherein he again argued the disciplinary charges against him were

false, as well as arguing the charges against him were racially motivated because six (6) black

inmates were accused of continuing to yell despite orders to cease, while only two (2) white

inmates were so accused, and arguing an incomplete investigation was conducted. Petitioner’s

Step 2 grievance was denied November 19, 2004 with the following findings:

Minor disciplinary case #20050039354 has been reviewed. The disciplinary

charge was appropriate for the offense and the guilty verdict was supported by a

preponderance of the evidence. The elements of the offense were met. There was

nothing to indicate staff submitted false statements or reports. No investigation

deficiency was noted. All due process requirements were satisfied and the

punishment assessed by the Disciplinary Hearing Officer was within agency

 

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guidelines. 

 II.

GROUNDS

Although not entirely clear from his pleading, petitioner does not appear to allege prison

officials violated his procedural due process rights in the disciplinary proceeding. Instead,

petitioner seems to allege only that he was not guilty of the offense of failing to obey an order

because he was asleep, and that the accusing officer falsified the disciplinary charges against

him. Petitioner appears to request this Court “overturn the false disciplinary case,” restore

petitioner’s good conduct time and line class, and order respondent to “pay [petitioner] for his

suffering.”

III.

MERITS

Federal habeas relief cannot be had “absent the allegation by a plaintiff that he or she has

been deprived of some right secured to him or her by the United States Constitution or the laws of

the United States.” Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995) (internal quotations and

citation omitted). The Due Process Clause of the United States Constitution does not protect every

change in the conditions of confinement having a substantial adverse impact on the prisoner. 

Sandin v. Conner, 515 U.S. 472, 478 (1995). 

In order to prevail, petitioner must show his due process rights were violated during the

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

 

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of the criminal prosecution process and, therefore, the full panoply of rights does not apply, there

are certain minimal due process provisions which are required. Those are: (1) advance written

notice of the charges; (2) a written statement by the fact finder of the evidence relied upon and

the reasons for the disciplinary action; and (3) an opportunity to call witnesses and/or present

documentary evidence when such presentation is not unduly hazardous to institutional safety or

correctional goals. Wolff, 418 U.S. at 563-566. 

In addressing these type of cases, the Fifth Circuit has declared that the findings of the

prison disciplinary hearing shall not be disturbed unless they are arbitrary and capricious. 

Banuelos v. McFarland, 41 F.3d 232, 234 (5th Cir. 1995). Further, as long as there is “any

evidence at all” to support the disciplinary hearing officer’s findings, the result of the hearing will

be upheld. Smith v. Rabalais, 659 F.2d 539, 545 (5th Cir. 1981), cert. denied, 455 U.S. 992, 102

S.Ct. 1619, 71 L.Ed.2d 853 (1982). 

Petitioner does not argue he was denied any of the procedural protections outlined above. 

Instead, he appears only to argue the accusations made against him by the charging officer are

false. As petitioner has not alleged he was not afforded due process protection in the

disciplinary proceeding, petitioner has failed to state a claim upon which habeas corpus relief

can be granted. Further, petitioner has not submitted any evidence, other than his own

conclusory statements, to demonstrate the disciplinary charges brought against him were false. 

Moreover, the hearing officer was the determiner of the credibility of the witnesses and of the

evidence presented, and petitioner has presented no allegation that the hearing officer’s

credibility determination was not supportable or was an abuse of discretion.

 

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IV.

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 HOWARD LEE BARNES, a/k/a Professor Ali-Hamza, be DENIED.

V.

INSTRUCTIONS FOR SERVICE

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

Recommendation to each party by the most efficient means available.

IT IS SO RECOMMENDED. 

ENTERED this 19th day of April 2007.

 ______________________________________

 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 “entered” date directly

above the signature line. Service is complete upon mailing, Fed. R. Civ. P. 5(b)(2)(B), or

transmission by electronic means, Fed. R. Civ. P. 5(b)(2)(D). When service is made by mail or

electronic means, three (3) days are added after the prescribed period. Fed. R. Civ. P. 6(e). 

Therefore, any objections must be filed on or before the fourteenth (14th) day after this

recommendation is filed as indicated by the “entered” date. 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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