### 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 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED April 20, 2018 Lyle W. Cayce Clerk Case: 15-30232 Document: 00514439654 Page: 1 Date Filed: 04/20/2018No. 15

- 30232

2 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 a llegedly 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 mail ing him cocaine and charge d 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. Appel lant alleges he sought to call a number of witnesses to support t h at 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

res ults, 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 challeng ing 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. Case: 15-30232 Document: 00514439654 Page: 2 Date Filed: 04/20/2018No. 15

- 30232

3 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. U nited S tates , 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 abil ity 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 proce ss 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 discipl inary 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 pres enting testimony in court if the deprivation Case: 15-30232 Document: 00514439654 Page: 3 Date Filed: 04/20/2018No. 15

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4 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 wa s 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 wo uld testify that Appellant did not sell drugs at the facility. The district court believed that t his 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 c onsider these further arguments. See United S tates 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 mater ial 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. Case: 15-30232 Document: 00514439654 Page: 4 Date Filed: 04/20/2018No. 15

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5 Further, denial of the right to call witnesses potentially prejudice d A ppellant. The only evidence that the cloth tested positive for cocaine w as 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, Appel lant sought to introduce his own witnesses to show that the material was jewelry cleaner, n ot 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 an y 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 distr ict court ’s conclusion that Appellant has
not allege d 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. Case: 15-30232 Document: 00514439654 Page: 5 Date Filed: 04/20/2018