IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40134
Summary Calendar
CLIFTON RAY CHOYCE,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
(C-00-CV-86)
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September 30, 2002
Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Clifton Ray Choyce, Texas prisoner #
380334, appeals from the denial of his 28 U.S.C. § 2254 petition.
The district court granted Choyce a certificate of appealability
(COA) as to whether his due process rights were violated by (1) the
use of Officer Hester’s unsworn, hearsay statement at Choyce’s
prison disciplinary hearing or (2) the refusal of prison officials
to permit Choyce to call Officer Hester as a disciplinary hearing
*
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this opinion should not be published and is not precedent except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.
witness. In addition, Choyce requests on appeal that we address
whether he was deprived of effective assistance of counsel
substitute at the prison disciplinary hearing.
An inmate is afforded only circumscribed due process rights in
a prison disciplinary proceeding. The Supreme Court has refused to
hold, in the context of prison disciplinary proceedings, that an
inmate’s due process rights are coextensive with those of free
citizens. Wolff v. McDonnell, 418 U.S. 539, 556, 563-66 (1974).
Among other things, the Court does not forbid the use of unsworn
hearsay statements in prison disciplinary hearings.
Wolff also forecloses Choyce’s argument that the refusal of
prison officials to permit him to call Officer Hester as a defense
witness violated his due process rights. Choyce complains that he
was not allowed to question Officer Hester about his (Hester’s)
version of the events. In Wolff, however, the Court refused to
construe the Constitution as imposing the requirement that inmates
be allowed the right of confrontation and cross-examination in
disciplinary proceedings. Id. at 567.
Choyce also contends that Officer Ambriz’s telephone testimony
violated Choyce’s due process rights. Choyce was not, however,
granted a COA by the district court on that issue, and he has not
expressly sought to expand that court’s grant of COA to include it.
We are therefore without jurisdiction to consider it. See United
States v. Kimler, 150 F.3d 429, 431 (5th Cir. 1998).
Finally, we reject Choyce’s argument that he was denied
effective assistance of counsel substitute. As a prison inmate
does not have a right to either appointed or retained counsel at
prison disciplinary hearings, there is no constitutional violation
on which habeas relief could be granted on the basis of ineffective
assistance of counsel substitute at a disciplinary hearing. See
Enriquez v. Mitchell, 533 F.2d 275, 276 (5th Cir. 1976). His
request for COA on this issue is DENIED.
AFFIRMED.