United States District Court, E.D. Texas, Lufkin Division
ORDER OVERRULING OBJECTIONS AND ADOPTING THE
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
CLARK, UNITED STATES DISTRICT JUDGE.
Marc Trace Wyatt, an inmate confined within the Texas
Department of Criminal Justice, Correctional Institutions
Division, proceeding pro se, filed the above-styled petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner challenges a prison disciplinary proceeding for
threatening to inflict harm on an officer.
court referred this matter to the Honorable Zack Hawthorn,
United States Magistrate Judge, for consideration pursuant to
28 U.S.C. § 636 and applicable orders of this court. The
Magistrate Judge has submitted a Report and Recommendation of
United States Magistrate Judge concerning this matter. The
Magistrate Judge recommends denying the petition with
court has received and considered the Report and
Recommendation of United States Magistrate Judge, along with
the record and pleadings. Petitioner filed objections to the
Report and Recommendation. The court must therefore conduct a
de novo review of the objections in relation to the pleadings
and the applicable law.
asserted several grounds for review. The Magistrate Judge
concluded that all but one of the grounds for review were
procedurally barred because petitioner had not raised them in
both his Step 1 and Step 2 grievances. With respect to
the remaining ground for review, that he was not permitted to
call witnesses on his own behalf, the Magistrate Judge
concluded this ground for review was without merit.
respect to the grounds for review that were found to be
procedurally barred, petitioner states that while he was
entitled to counsel substitute under prison regulations, his
counsel substitute failed to respond to requests for
assistance in preparing his grievances. He also complains
that prison regulations failed to inform him he was required
to restate issues in his Step 2 grievance if he had already
raised them in his Step 1grievance.
petitioner's counsel substitute did not provide
petitioner with the assistance required by prison
regulations, this would not excuse petitioner's failure
to properly exhaust his administrative remedies. The failure
to follow institutional rules and regulations does not
violate a prisoner's constitutional rights. Murphy v.
Collins, 26 F.3d 541, 543 (5th Cir. 1994). Petitioner's
grievances demonstrate he was able to adequately present the
issues he chose to raise. Further, petitioner restated in his
Step 2 grievance one of the issues raised in his Step 1
grievance. Nothing prevented him from restating all his
issues. The Magistrate Judge correctly concluded that the
grounds for review that were not raised in both the Step 1
and Step 2 grievances are procedurally barred from
consideration in this proceeding.
his remaining ground for review, petitioner stated that at
his first hearing, his counsel substitute said he did not
wish to call any witness. Petitioner contradicted this
statement and told the hearing officer he had officers he
wanted to call as witnesses. The hearing was adjourned
because the charging officer could not testify. When it was
reconvened, the hearing officer did not allow him to call the
witnesses to testify. Petitioner asserts there was no reason
for him not being permitted to call the officers to testify.
certain circumstances, an inmate charged with a disciplinary
offense is entitled to due process, including the opportunity
to call witnesses to testify on his behalf. Wolff v.
McDonnell, 418 U.S. 569, 563-66 (1974). However, a
hearing officer has the discretion to refuse a request for
witnesses, such as when the testimony to be provided would be
irrelevant or unnecessary. Id. at 566.
was convicted of verbally threatening an officer. As the
Magistrate Judge stated, it does not appear that two of the
witnesses requested by petitioner were present during the
altercation. Further, while the remaining proposed witness
was closer to the incident, it is not clear he was close
enough to hear what was said during the incident. As it does
not appear the requested witnesses would have been able to
offer relevant testimony, the hearing officer's failure
to allow them to testify did not violate petitioner's
there is no indication in the record as to what the proposed
witnesses would have said if called to testify. Petitioner
has not described what their proposed testimony would have
been. In order to be entitled to federal habeas relief, a
prisoner who asserts he was denied due process in connection
with a prison disciplinary proceeding must show the denial
prejudiced his defense. Hallmark v. Johnson, 118
F.3d 1073, 1080 (5th Cir. 1997). In this case, petitioner
must demonstrate his defense was prejudiced as a result of
not being able to call witnesses. As petitioner has not
demonstrated his proposed witnesses would have provided
beneficial testimony, he has not shown he suffered prejudice
as a result of their not being permitted to testify.
objections are therefore OVERRULED. The findings of fact and
conclusions of law of the Magistrate Judge are correct and
the report of the Magistrate Judge is ADOPTED as the opinion
of the court. A final judgment shall be entered in accordance
with the recommendation of the Magistrate Judge.
addition, the court is of the opinion that the petitioner is
not entitled to a certificate of appealability. An appeal
from a judgment denying federal habeas relief may not proceed
unless a judge issues a certificate of appealability. See
U.S.C. § 2253. The standard that must be met in order to
receive a certificate of appealability requires the
petitioner to make a substantial showing of the denial of a
federal constitutional right. See Slack v. McDaniel,529 U.S. 473, 483-84 (2000); Elizalde v. Dretke, 362
F.3d 323, 328 (5th Cir. 2004). To make a substantial showing,
the petitioner is not requited to demonstrate that he would
prevail on the merits. Rather, he need only demonstrate that
the issues are subject to debate among jurists of reason,
that a court could resolve the issues in a different manner,
or that the questions presented in the petition are worthy of
encouragement to proceed further. See Slack, 529 U.S. at
483-84. If the petition was dismissed on procedural grounds,
the petitioner must show that jurists of reason would find it
debatable: (1) whether the petition raises a valid claim of
the denial of a constitutional right, and (2) whether the
district court was correct in its procedural ruling.