Morgan v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED DECEMBER 29, 2005
UNITED STATES COURT OF APPEALS December 15, 2005
for the Fifth Circuit
Charles R. Fulbruge III
_____________________ Clerk
No. 04-20254
_____________________
GEORGE CLERON MORGAN,
Petitioner-Appellant,
VERSUS
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
(4:03-CV-1833)
Before JONES, DeMOSS, and OWEN, Circuit Judges.
DeMOSS, Circuit Judge:
George Cleron Morgan, Texas prisoner number 1125877, filed the
instant 28 U.S.C. § 2254 habeas corpus petition to challenge a
prison disciplinary proceeding finding him guilty of assaulting an
officer with a non-serious injury resulting. The district court
granted Respondent’s motion for summary judgment, dismissed
Morgan’s petition, and denied a certificate of appealability
(“COA”). Morgan timely appealed the district court’s dismissal and
moved this court for a COA, which was granted in part and denied in
part on October 12, 2004. The two issues on which we granted a COA
and that we must decide in this appeal are (1) whether the evidence
was sufficient to sustain Morgan’s disciplinary conviction and (2)
whether the district court erroneously construed the disciplinary
code. For the reasons stated herein, we reverse the district
court’s judgment denying habeas relief and remand with
instructions.
I.
Morgan is currently serving two lengthy sentences in the
custody of the Texas Department of Criminal Justice (“TDCJ”), one
for retaliation and the other for possession of cocaine with intent
to deliver. He does not contest the constitutionality of his state
court convictions or sentences. Instead, he challenges the
constitutionality of a prison disciplinary action taken against him
in which he lost good time credits.
On January 28, 2003, corrections officer Sergeant M. Hunt
(“Hunt”) stopped Morgan for inspection of an envelope Morgan was
carrying. During the inspection, Hunt took the envelope from Morgan
and ordered him to submit to a strip search. Morgan initially
refused to obey Hunt’s order but ultimately complied. After Hunt
completed the strip search, Morgan repeatedly demanded that Hunt
return his envelope, and when Hunt did not, Morgan charged Hunt and
hit Hunt’s left shoulder with his own. Officer Hunt subsequently
filed an offense report, accusing Morgan of a Level 1, Code 3.3
offense that included as an element assault resulting in a non-
serious injury, although the charging document indicated that the
assault with which Morgan was charged resulted in no injury. The
disciplinary hearing officer found Morgan guilty of the charged
offense and prescribed a punishment of 45 days of recreation and
commissary restrictions, 42 hours of extra duty, 15 days of
solitary confinement, a reduction in his line class status from LI
to LIII, and the forfeiture of 180 days of earned good time
credits.
Morgan challenged the disciplinary proceeding by filing with
TDCJ a step one grievance on February 5, 2003 and a step two
grievance on March 3, 2003. Both grievances were ultimately denied.
Having exhausted the available state remedies, Morgan filed the
instant § 2254 habeas corpus petition in district court, arguing
that his right to due process was violated in a disciplinary action
taken by prison officials. Respondent filed for summary judgment,
and Morgan answered by filing both a response and his own motion
for summary judgment. The district court granted Respondent’s
motion for summary judgment, dismissed Morgan’s petition, and
stated that a COA would not issue. Morgan appealed to this court
and requested that we issue a COA. We granted Morgan’s request with
respect to two issues, but denied it as to the other three.1 Thus,
1
This Court lacks jurisdiction to consider issues on appeal
that were not before the district court when it made its COA
decision, and a COA will not issue with respect to an issue
unless the petitioner makes a substantial showing of the denial
of a constitutional right. Morgan v. Dretke, No. 04-20254 (5th
Cir. Oct. 12, 2004) (order granting COA in part). Two of the five
issues presented on appeal were not raised below, and we
therefore denied the motion for a COA as to those claims. Id.
Further, Morgan did not make the requisite showing with respect
the issues on appeal are (1) whether the evidence was sufficient to
sustain Morgan’s disciplinary conviction and (2) whether the
district court erroneously construed the disciplinary code.
II.
Morgan argues that the evidence was insufficient to sustain
his disciplinary conviction because there was no evidence to show
that the officer he assaulted was injured. He also argues that the
district court erred by determining that the offender handbook in
question had no provision for disciplining an offender who assaults
an officer without injury resulting. On appeal, we review a
district court’s findings of fact for clear error and questions of
law de novo. Salazar v. Dretke, 419 F.3d 384, 394 (5th Cir. 2005).
Because we find in favor of Morgan with respect to both arguments,
we reverse and remand with instructions for the district court to
grant habeas corpus relief.
A.
Morgan’s sufficiency of the evidence argument amounts to a due
process challenge.2 It is well established that “‘[p]rison
to one of the five issues he appealed, so we also denied the COA
as to that claim. Id.
2
We note here for completeness’ sake that it is the
protected liberty interest in good time credits that implicates
due process concerns and that state law determines whether good
time credits constitute a protected liberty interest in a given
state. Hudson v. Johnson, 242 F.3d 534, 536 (5th Cir. 2001).
Although we have not decided whether good time credits (more
specifically, Texas’s mandatory supervision scheme for earned
good time credits) constitute a protected liberty interest under
current Texas law, we need not address the issue here because
Respondent waived the issue by failing to raise it either in the
disciplinary proceedings are not part of a criminal prosecution,
and the full panopoly of rights due a defendant in such proceedings
does not apply.’” Broussard v. Johnson, 253 F.3d 874, 876 (5th Cir.
2001) (quoting Wolff v. McDonnell, 418 U.S. 539, 556 (1974)). For
example, a prisoner does not have “a due process right to
confrontation or cross-examination during prison disciplinary
proceedings.” Id. However, there are some rights that are
nonetheless protected, including the right not to suffer an adverse
disciplinary decision absent sufficient proof: “due process does
require, at a minimum, that there be ‘some evidence’ in the record
to support the disciplinary decision.” Id. (citing Superintendent,
Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985)).
The “some evidence” standard is extremely deferential — we
have found a single report or testifying witness sufficient to
support an adverse disciplinary decision. See, e.g., Hudson v.
Johnson, 242 F.3d 534, 537 (5th Cir. 2001) (finding one officer’s
incident report sufficient); Smith v. Rabalais, 659 F.2d 539, 545
(Former 5th Cir. 1981) (finding “unsupported and generalized
testimony based entirely on information from an unidentified prison
informant” sufficient). However, it is not the quantum or quality
of evidence that is at issue in this case. This case is unique
among disciplinary hearing cases in this Circuit in that the
evidence in the record does not fit the charge.
district court or on appeal. Id. Thus, we assume that Morgan has
a constitutional interest in his good time credits and that the
loss of those credits implicates due process concerns.
The Texas prison disciplinary rules, which are published by
the Correctional Institutions Division of the TDCJ, stated at the
time of Morgan’s disciplinary conviction that “assaulting an
officer, or any other person who is not an offender, without a
weapon, which results in a non-serious injury” was a Code 3.3
offense. TEX. DEP’T CRIMINAL JUSTICE, DISCIPLINARY RULES AND PROCEDURES FOR
OFFENDERS 24 (rev. ed. Sept. 2003) (emphasis added). A Code 3.3
offense, therefore, required as an element that the officer suffer
a non-serious injury.3 There is no question that there is “some
evidence” to support the factual conclusion in this case, that
Morgan “assaulted Sgt. M. Hunt by charging [Hunt] with his left
shoulder. The assault did not result in any injuries.” (R. at 217.)
But that factual conclusion, without more, cannot support a finding
that Morgan committed a Code 3.3 offense, any more than it could
support a finding that Morgan committed an assault with a weapon or
attempted escape. No one contends that Hunt was injured. In fact,
both sides agree that there was no injury to Hunt. Because there is
no evidence to support a requisite element of the disciplinary
offense, there is insufficient evidence to support the adverse
disciplinary decision.
B.
3
The Texas prison disciplinary rules now state that
“assaulting an officer, or any other person who is not an
offender, without a weapon, which results in a non-serious injury
or no injury” is a Code 3.3 offense. TEX. DEP’T CRIMINAL JUSTICE,
DISCIPLINARY RULES AND PROCEDURES FOR OFFENDERS 23 (rev. ed. Jan. 2005)
(emphasis added). Injury is no longer required.
Morgan also prevails on his second argument — that the
district court erred by determining that the offender handbook in
question had no provision for disciplining an offender who assaults
an officer without injury resulting. The court below purported to
take judicial notice that the Texas prison disciplinary rules “do[]
not include a specific offense of assault against an officer where
no injury results” and concluded that Texas’s disciplinary action
deserved to be upheld because “there is no question that a prison
should be able to impose severe disciplinary sanctions on a
prisoner who assaults an officer, even with no injury resulting.”
(R. at 213.) The court therefore interpreted Code 3.3 to include an
assault that results in “no injury.”
The district court reached this decision by analogizing
Texas’s prison disciplinary rules to Texas state law, which does
not require an injury for a conviction of assault. But the
definition of assault under Texas state law is irrelevant to this
case. Although it is true that Texas Penal Code § 22.01(a)(3) only
requires intentional or knowing physical contact, not an injury,
Morgan was not convicted under § 22.01(a)(3); instead, he was found
guilty of committing an assault with the additional element of a
non-serious injury.
Moreover, the district court viewed the lack of a “no injury”
provision in Code 3.3 as an “oversight” and concluded that an
oversight in drafting the disciplinary rules “should not mean that
the Texas Department of Criminal Justice cannot appropriately
punish inmates for [assaulting an officer with no injury
resulting].” But Texas’s prison disciplinary rules do contain at
least one provision for punishing an inmate who assaults an officer
without injuring him. For example, it is a Level 2, Code 46 offense
for an inmate to make “unauthorized physical contact with any
person who is not an offender,” and it is a Level 1, Code 10
offense for an inmate to commit any felony under the laws of Texas
or the United States, one of which is assault in violation of Texas
Penal Code § 22.01(a)(3). TEX. DEP’T CRIMINAL JUSTICE, DISCIPLINARY RULES
AND PROCEDURES FOR OFFENDERS 25, 29 (rev. ed. Sept. 2003). In addition,
the disciplinary rules prohibit attempting, conspiring, or helping
others to engage in prohibited behavior. Id. at 22. However, no one
suggested that Morgan attempted to injure Hunt, and Morgan was not
charged with committing a Code 46 or a Code 10 offense.
Respondent contends that the mere fact that Morgan knew his
conduct was unlawful is sufficient to support his disciplinary
conviction. However, a Level 1 offense of “assaulting an officer
with no injury resulting” is a creation of the hearing officer and
the district court, and has no basis in the disciplinary rules.
Respondent lacked authority to punish Morgan under Code 3.3 for a
nonexistent offense.
Finally, Talib v. Gilley, 138 F.3d 211 (5th Cir. 1998), a case
cited by Respondent for the proposition that prisons may punish
inmates as they see fit, is inapposite. In Talib, an inmate was
deprived of meals by a guard for failing to follow unwritten prison
policies involving food distribution. Talib, 138 F.3d at 212. This
Court held that prison policies would be entitled to deference if
they related to a legitimate penological interest and that actions
taken to enforce such policies would be given similar deference.
Id. at 214-15. Here, Morgan does not challenge the validity of
policies, written or unwritten, designed to protect penological
interests. No one argues that Code 3.3, or any other prison
disciplinary rule for that matter, is invalid. Instead, this case
involves the sufficiency of the evidence presented at a formal
disciplinary proceeding that resulted in a loss of good time
credits, and a plain reading of the pre-2005 version of Code 3.3
makes it clear that infliction of a non-serious injury was required
as an element of the offense in question. The district court erred
in eradicating this element from the text of Code 3.3 and in
approving punishment of Morgan pursuant to Code 3.3 for a “no
injury” assault.
III.
Accordingly, we REVERSE the district court’s judgment denying
habeas relief and REMAND with instructions for the district court
to enter an order that TDCJ must either (1) provide Petitioner with
a new, constitutionally adequate hearing within ninety days of the
date of the district court’s order on remand, if TDCJ’s
disciplinary rules and Texas law provide for such a rehearing, or
(2) vacate Petitioner's disciplinary conviction and reinstate his
good time credits.