IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-30232

FREDERICK L. BODISON, 

 Petitioner - Appellant

v.

T. G. WERLICH, 

 Respondent - Appellee

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 1:14-CV-2848

Before HIGGINBOTHAM, JONES, and GRAVES, Circuit Judges.

PER CURIAM:*

This is an appeal from the denial of a habeas petition stemming from a 

prison disciplinary hearing. We REVERSE and REMAND for further 

proceedings consistent with this opinion. 

FACTUAL BACKGROUND

On June 17, 2013, staff at a federal correctional facility in Florida found 

several pieces of white fabric in an envelope addressed to Appellant. Prison 

staff claimed that the fabric tested positive for cocaine using an ION Scan 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 20, 2018

Lyle W. Cayce

Clerk

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No. 15-30232

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400B. The next day, another card arrived addressed to Appellant with more 

white fabric. Again, prison staff claimed that the fabric tested positive for 

cocaine. A search of Appellant’s possessions ensued, resulting in correctional 

officers finding more greeting cards, one of which allegedly tested positive for 

cocaine. 

Correctional staff then reviewed Appellant’s phone conversations with 

his wife. Staff noted that on June 6, 2013, Appellant told his wife, “You know 

those little card things? If you double them up that would be great!” When his 

wife responded that the cards “will get too puffy,” Appellant said, “[i]t might 

seem like that to you, but they don’t necessarily know.”

Based on that evidence, prison officials determined that Appellant’s wife

was mailing him cocaine and charged him in a disciplinary proceeding with 

attempt to introduce narcotics. At his disciplinary hearing, Appellant argued 

that the evidence in the investigative report was false, claiming that the 

substance on the fabric was used for cleaning gold teeth. Appellant alleges he 

sought to call a number of witnesses to support that defense. For reasons 

unexplained in the record, the hearing officer denied Appellant’s request to call 

witnesses. The hearing officer then, apparently relying on the alleged drug test

results, which were not presented at the hearing, found that the weight of the 

evidence supported a conviction. As punishment, Appellant lost forty-one days 

of good time credit.

Appellant filed a habeas petition challenging that decision before the 

district court, arguing that the disciplinary hearing violated his due process 

rights and that there was insufficient evidence to convict him. The district 

court denied the petition and this appeal timely followed.

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STANDARD OF REVIEW

“In an appeal from the denial of habeas relief, this court reviews a 

district court’s findings of fact for clear error and issues of law de novo.” 

Gallegos-Hernandez v. United States, 688 F.3d 190, 194 (5th Cir. 2012) 

(internal quotations omitted).

DISCUSSION

Appellant argues that the disciplinary proceedings violated his due 

process rights in three ways. We need address only one. Because we find that 

the district court erred in considering Appellant’s claim regarding his right to 

call witnesses, we reverse and remand for reconsideration of Appellant’s 

habeas petition consistent with this opinion.

I. Prison officials must explain reasons for denying witnesses.

Appellant argues that prison officials violated his due process rights by 

denying him the ability to call witnesses. The district court found no violation 

because “even assuming the witnesses would have testified as [Appellant] 

claims . . . it would not have affected the outcome of his disciplinary hearing.” 

The Supreme Court set out the due process owed at prison disciplinary 

proceedings in Wolff v. McDonnell, 418 U.S. 539 (1974). “Chief among the due 

process minima outlined in Wolff was the right of an inmate to call and present 

witnesses and documentary evidence in his defense before the disciplinary 

board.” Ponte v. Real, 471 U.S. 491, 495 (1985). Nonetheless, “the prisoner’s 

right to call witnesses . . . [can] be denied if granting the request would be 

‘unduly hazardous to institutional safety or correctional goals.’” Id. (quoting 

Wolff, 418 U.S. at 566). However, prison officials must articulate the reasons 

they denied a request to present witnesses. Id. at 495-99. “[T]hey may do so 

either by making the explanation a part of the ‘administrative record’ in the 

disciplinary proceeding, or by presenting testimony in court if the deprivation 

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of a ‘liberty’ interest is challenged because of that claimed defect in the 

hearing.” Id. at 497.

Here, there is no indication in the record why prison officials denied 

Appellant his right to call witnesses. The prison officials’ failure to provide any 

explanation does not meet the requirements of Ponte. See id. at 495-99. 

“However, even in the event of a constitutional violation, a habeas 

petition may not be granted unless the petitioner demonstrates that he was 

prejudiced by the violation.” Mascitti v. Thaler, 416 F. App’x 411, 415 (5th Cir. 

2011) (citing Simpson v. Ortiz, 995 F.2d 606, 609 (5th Cir. 1993)). According to 

the district court, Appellant cannot show any prejudice because he alleged the 

witnesses would testify that Appellant did not sell drugs at the facility. The 

district court believed that this would “not have affected the outcome of 

[Appellant’s] disciplinary hearing since his conviction was not based on the 

sale of drugs.”

While it is true that Appellant originally argued only that the witnesses 

would testify he was not selling drugs, Appellant later expanded on that 

argument in his objection to the magistrate judge’s report and 

recommendation. The district court failed to consider these further arguments. 

See United States v. Woods, 870 F.2d 285, 288 n.3 (5th Cir. 1989) (“Pro se 

habeas corpus petitions must be construed liberally.”).

In his objections to the R&R, Appellant argued that his witnesses “would 

have testified that the alleged cocaine was in fact used by the petitioner to 

clean his gold teeth.” It is clear from Appellant’s objections, read liberally as a 

whole, that his defense to the drug charge was that the test showing cocaine 

residue was false and that the material on the cloth was in fact jewelry cleaner. 

These facts, which rebut whether any narcotics were sent to Appellant in the 

first place, are relevant to the charges lodged against him. 

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Further, denial of the right to call witnesses potentially prejudiced

Appellant. The only evidence that the cloth tested positive for cocaine was the 

statements of prison officials who asserted they had conducted an Ion 400B 

scan on the material. There were “no lab results or report.” To rebut these 

officers’ testimony, Appellant sought to introduce his own witnesses to show 

that the material was jewelry cleaner, not a narcotic. Appellant was denied the 

right to do so. Further, in affirming Appellant’s conviction, the Regional 

Director noted that Appellant had “not provided any evidence to substantiate 

[his] contention” that the incident reports falsely stated the material contained 

cocaine. Appellant alleges he failed to present such evidence because he was 

denied the right to call witnesses. 

Accordingly, we reverse the district court’s conclusion that Appellant has 

not alleged a potential violation of due process rights. Without an explanation 

why the hearing officer denied the request to call witnesses, however, we 

cannot determine whether Appellant’s due process rights have been violated. 

We leave consideration of that question to the district court in the first 

instance. 

CONCLUSION

The district court’s opinion is REVERSED and REMANDED for further 

proceedings consistent with this opinion. 

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