United States District Court, E.D. Texas, Texarkana Division
ORDER ADOPTING REPORT AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
W. SCHROEDER III UNITED STATES DISTRICT JUDGE
Vergin, an inmate confined within the Bureau of Prisons,
proceeding pro se, filed the above-styled petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Docket No. 1. Petitioner challenges a prison disciplinary
conviction for possession of a portable electronic device and
attempting to escape as being based on insufficient evidence.
The Court referred this matter to the Honorable Caroline M.
Craven, United States Magistrate Judge, for consideration
pursuant to 28 U.S.C. § 636(b)(1) and (3).
Magistrate Judge has submitted a Report and Recommendation of
United States Magistrate Judge (AReport@) recommending that
the petition for writ of habeas corpus be denied. Docket No.
11 at 6. After observing that the level of review applicable
to claims of insufficient evidence to support a disciplinary
conviction was highly deferential, the Magistrate Judge
explained why there was sufficient evidence to support the
disciplinary conviction. Id. at 5-6. Petitioner
filed objections to the Report, asserting six substantive
objections. Docket No. 13. The Court reviews the objected-to
portions of the Report de novo, and addresses each
substantive point of objection in turn. Fed.R.Civ.P.
Petitioner objects that evidence was not provided to him in a
timely manner in compliance with Piggie v. Cotton,
344 F.3d 674 (7th Cir. 2003), but does not identify the
evidence that was not provided to him. Docket No. 13 ¶
3. In Piggie, the petitioner was convicted of prison
disciplinary offenses including battery. At his disciplinary
hearing, the petitioner asked the Conduct Adjustment Board
(“CAB”) to view videotapes of relevant incidents.
The CAB's written report indicated it reviewed the
videotapes, but did not state what the videotapes revealed.
The Seventh Circuit stated that the holding in Brady v.
Maryland, 373 U.S. 83 (1963), requiring the disclosure
of material exculpatory evidence, applies to prison
disciplinary proceedings. As a result, the petitioner was at
least arguably entitled to view the videotapes.
Fifth Circuit has not determined whether Brady
applies to prison disciplinary proceedings. See Boatswain
v. Martinez, 544 Fed.Appx. 409, 410 (5th Cir. 2013).
However, even if Brady applies to prison
disciplinary proceedings, Petitioner has not shown that a
Brady violation occurred. To establish a Brady
violation, a petitioner must demonstrate the prosecution
failed to turn over favorable evidence that was material to
guilt or punishment. 373 U.S. at 87. In this case, Petitioner
has not identified any favorable material evidence possessed
by prison staff members that was not turned over to him.
Petitioner's objection on this point is overruled.
next objects to what he describes as the Magistrate
Judge's blanket assertion that staff use of a compromised
social platform was sufficient for an attempted escape charge
or a charge of possessing an electronic device. Docket No. 13
¶ 4. The Magistrate Judge carefully explained in her
Report why there was sufficient evidence, under the
appropriate legal standard, to support Petitioner's
disciplinary convictions. Docket No. 11 at 5-6. While
Petitioner asserted at his disciplinary hearing that someone
else was using his Facebook account without permission or
contrary to his wishes, the Discipline Hearing Office
(“DHO”) did not find Petitioner's assertion
credible and that finding may not be reexamined in this
proceeding. Superintendent, Massachusetts
Correctional Institution v. Hill, 472 U.S. 445, 455
(1993) (federal courts reviewing a prison disciplinary
conviction do not independently assess the credibility of
witnesses or weigh the evidence in order to determine whether
there is sufficient evidence to support a DHO's
decision). Petitioner's objection is overruled on this
next objects that, like in Howard v. U.S. Bureau of
Prisons, 487 F.3d 808 (7th Cir. 2007), the simple
production by staff of the Facebook IP address, or mobile
access logs, would have exonerated him easily and shown that
it was not him or anyone in the area who accessed the page.
Docket No. 13 ¶ 5. In Howard, the petitioner
asked the DHO to review videotape evidence he stated would
have exonerated him. The DHO refused to do so. The Seventh
Circuit found this to be error. In this case, however,
Petitioner does not contend that he asked the DHO to review
the relevant Facebook address IP or any mobile access logs,
and was refused. Nor is there any evidence in the record that
such evidence existed or was in the possession of prison
staff members. Petitioner's objection on this ground is
further objects to the Magistrate Judge's conclusion that
the findings of the DHO were not arbitrary or capricious.
Docket No. 13 ¶ 6. “[F]ederal courts cannot assume
the task of retrying all prison disciplinary disputes.”
Smith v. Rabalais, 659 F.2d 539, 545 (5th Cir.
1981). Instead, with respect to challenges to the sufficiency
of the evidence to support a disciplinary conviction,
“the standard to be applied is whether or not actions
of the disciplinary committee were arbitrary and capricious
or an abuse of discretion.” Rather than conducting a
de novo review of a disciplinary board's
findings, federal courts “consider whether at least the
decision is supported by 'some facts' or 'whether
any evidence at all' supports” the decision.
Id. “Prison disciplinary proceedings are to be
overturned only where no evidence in the record supports the
decision.” Broussard v. Johnson, 253 F.3d 874,
877 (5th Cir. 2001). “The 'some evidence'
standard is extremely deferential-[courts] have found a
single report or testifying witness sufficient to support an
adverse disciplinary decision.” Morgan v.
Dretke, 433 F.3d 455, 456 (5th Cir. 2005).
there was also “some evidence” to support a
finding that Petitioner was not guilty, the DHO was
responsible for determining the credibility of the evidence,
and as the Magistrate Judge explained, there was at least
“some evidence” to support that conclusion.
Docket No. 11 at 5-6. The Court agrees with the Magistrate
Judge's conclusions that the DHO's findings were not
arbitrary or capricious, and overrules this objection.