Larson v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 18, 2004
Charles R. Fulbruge III
Clerk
No. 03-40925
Summary Calendar
PAUL ALLAN LARSON,
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 Eastern District of Texas
USDC No. 9:03-CV-59
--------------------
Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Paul Allan Larson, Texas prisoner # 452522, appeals the
denial of his 28 U.S.C. § 2254 petition challenging disciplinary
proceeding # 20030044031. Larson was granted a certificate of
appealability (COA) on the issue whether he was deprived due
process when he was allegedly denied the right to call witnesses
in his defense. See Larson v. Dretke, No. 03-40925 (5th Cir.
*
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that this opinion should not be published and is not precedent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. 03-40925
-2-
Dec. 22, 2003) (unpublished). Larson has also moved to
supplement the record and for appointment of counsel.
Review of the disciplinary hearing transcript does not
support Larson’s contention that he was denied the opportunity to
call defense witnesses. The hearing officer provided Larson with
such an opportunity; inmate Daniel Johnson was called to testify
on his behalf, and Larson did not ask to present any other
witnesses. Although Larson stated that other witnesses could
testify that his property was already packed and ready for the
move to the north gym, the charging officer did not dispute this
fact. Witness testimony on that issue would therefore have been
cumulative. Consequently, the absence of testimony on this issue
did not result in a due process deprivation. See Wolff v.
McDonnell, 418 U.S. 539, 663-66 (1974).
Insofar as Larson asks this court to revisit his claims of
ineffective assistance of counsel substitute and insufficiency of
the evidence, we decline to do so as theses issues are outside
the scope of the COA grant. See Lackey v. Johnson, 116 F.3d 149,
152 (5th Cir. 1997).
AFFIRMED; ALL OUTSTANDING MOTIONS DENIED.