Davila v. Dretke , 119 F. App'x 631 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 29, 2004
Charles R. Fulbruge III
Clerk
No. 04-40290
Summary Calendar
ROBERTO DAVILA,
Petitioner-Appellee,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-02-CV-252
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Before JONES, BARKSDALE and PRADO, Circuit Judges.
PER CURIAM:*
The Respondent appeals from the grant of habeas relief in
favor of Roberto Davila, Texas prisoner # 680990, on his prison
disciplinary convictions for possession of a weapon and
possession of contraband. We reverse and render judgment for the
Respondent.
A prerequisite to the issuance of habeas relief is a showing
of prejudice as a result of a constitutional violation. See
Hallmark v. Johnson, 118 F.3d 1073, 1080 (5th Cir. 1997);
*
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this opinion should not be published and is not precedent except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.
No. 04-40290
-2-
Banuelos v. McFarland, 41 F.3d 232, 234-35 (5th Cir. 1995). Even
if Davila’s exclusion from his prison disciplinary hearing was
arbitrary and capricious, he has nevertheless failed to show the
requisite prejudice for the reasons that follow and is therefore
not entitled to habeas relief.
Davila’s sworn statement attested that his exclusion from
the hearing prevented him from adducing both a “written
statement” and the AD-92 form. Davila, however, did not adduce a
copy of his “written statement” in the district court nor did he
ever make an allegation regarding its contents. Davila has
therefore given no indication that his written statement would
have been exculpatory or would have affected the outcome of the
proceedings, and he therefore cannot show that its exclusion from
the hearing was prejudicial.
The AD-92 form is similarly unavailing. The AD-92 form is
evidence that Davila claimed ownership of no less than 187 items
of the charged contraband; the AD-92 form is therefore not
exculpatory, despite its failure to include in the inventory of
items confiscated from Davila’s cell the plastic bag containing a
brown powdered substance. See Broussard v. Johnson, 253 F.3d
874, 876-77 (5th Cir. 2001) (due process requires only that there
be “some evidence” in the record to support a prison disciplinary
decision).
REVERSED AND RENDERED