Brown v. Braxton

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

DEMARCUS M. BROWN, 
Petitioner-Appellant,
v.
 No. 03-6763
DANIEL BRAXTON, Warden, Red
Onion State Prison,
Respondent-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, Senior District Judge.
(CA-02-47-7)

Argued: May 4, 2004

Decided: July 1, 2004

Before WILKINSON, KING, and GREGORY, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion,
in which Judge King and Judge Gregory joined.

COUNSEL

ARGUED: Charles E. Luftig, Third Year Law Student, Appellate
Litigation Clinic, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,
Charlottesville, Virginia, for Appellant. Susan Foster Barr, Assistant
Attorney General, OFFICE OF THE ATTORNEY GENERAL, Rich-
mond, Virginia, for Appellee. ON BRIEF: Neal L. Walters, Char-
lottesville, Virginia, for Appellant. Jerry Walter Kilgore, Attorney
General of Virginia, Richmond, Virginia, for Appellee.
2 BROWN v. BRAXTON
OPINION

WILKINSON, Circuit Judge:

DeMarcus M. Brown, an inmate incarcerated at Red Onion State
Prison in Pound, Virginia, was found guilty at a prison disciplinary
hearing of assaulting a fellow inmate, Johnnie Lee Beavers. The offi-
cer in charge of the hearing denied Brown’s request to call Beavers
as a witness, but allowed Brown to submit Beavers’ written statement
in lieu of live testimony. Brown claims that his inability to present
Beavers as a live witness denied him due process of law, but we dis-
agree. Prison officials have the discretion, indeed the duty, to protect
the inmates committed to their care. Among other concerns, prison
authorities justifiably feared reprisal against Beavers in the event that
his testimony was not as Brown hoped, and they were not constitu-
tionally required to expose Beavers to the threat of a second beating.
We therefore affirm the judgment.

I.

The State of Virginia classifies its correctional facilities at six dif-
ferent levels. Level 1 correctional units provide dormitory-style living
for minimum-security inmates convicted of relatively minor offenses.
By contrast, Level 5 and 6 prisons house maximum-security inmates
convicted of much more serious offenses. Red Onion State Prison,
where Brown and Beavers are incarcerated, is Virginia’s only Level
6 facility. It provides maximum-security celled living for inmates who
have severe behavioral problems; who are serving extremely long
sentences; or who present escape risks.

On September 9, 2000, Beavers had completed his duties as an
inmate recreation worker and was returning to his cell. When Correc-
tional Officer Samie Fleming opened Beavers’ cell door, Brown fol-
lowed Beavers inside. Fleming heard slapping and hollering from
inside the cell, so he closed the cell door and reported an emergency
on the cell intercom. Lieutenant James Robinson, Sergeants Gregory
Deel and Dwight Moore, and several other correctional officers
responded immediately to Fleming’s call. According to Lieutenant
Robinson, he saw Brown and Beavers fighting on the bottom bunk of
the cell. When Brown and Beavers ignored repeated orders to stop
 BROWN v. BRAXTON 3
fighting, the officers entered the cell and separated the pair. Both
Brown and Beavers were then examined by the prison’s medical staff.

According to Lieutenant Robinson’s Incident Report, signed and
dated the day of the fight, the prison nurses who examined Beavers
found that his left back tooth had been chipped during the altercation
and his left wrist had been cut. Beavers also told the nurses, "I was
hit with an adapter." As for Brown, he sustained a bite mark on his
right forearm and a few small cuts and abrasions. Brown was later
placed in administrative detention, while Lieutenant Kelly Chris
investigated the altercation.

On September 18, 2000, Brown was served with a copy of Lieuten-
ant Chris’s Disciplinary Offense Report, which stated that Brown was
being charged with aggravated assault. Upon being served, Brown
requested that Beavers appear as a witness on his behalf. Then on
September 22, Beavers submitted to prison officials a written state-
ment that said simply: "At no time did inmate D. Brown assault me
with his adapter or in any other way."

On September 25, 2000, Inmate Hearing Officer Brett Edmonds
conducted a disciplinary hearing on Brown’s assault charge. Lieuten-
ant Chris testified about Fleming’s report of the fight, as well as the
nurses’ report on Beavers’ injuries and Beavers’ statement to the
nurses that he had been hit with an adapter. Chris also testified that
during his investigation he had interviewed Beavers. According to
Chris, Beavers said that he and Brown had argued prior to the fight,
and that later Brown had run into Beavers’ cell and attacked Beavers
with an adapter wrapped in a sock. As Chris had noted in his Disci-
plinary Offense Report, an adapter with Brown’s name and inmate
number was found in Beavers’ cell following the fight. Finally, Chris
testified that he had also interviewed Brown, who said that he was in
Beavers’ cell with the permission of Beavers’ cellmate to watch tele-
vision. However, Brown denied making such statements to Chris (and
Beavers’ cellmate denied knowing Brown, much less giving him per-
mission to watch his television).

Edmonds then gave Brown an opportunity to present evidence in
his defense. Brown requested that Beavers be called as a live witness,
but Edmonds denied Brown’s request. Edmonds then read Beavers’
4 BROWN v. BRAXTON
written statement into the record. Accordingly, Brown argued that he
should not be found guilty of assault since Beavers himself denied
being assaulted in any way. When Edmonds asked Brown whether he
had anything else to present, Brown said no; he presented no other
witnesses or arguments.

Edmonds proceeded to find Brown guilty of aggravated assault,
sentencing him to the loss of 180 days of good conduct time. Accord-
ing to Edmonds’ written findings, (1) Brown had been identified by
Officer Fleming as the inmate who had entered Beavers’ cell; (2)
Beavers had sustained injuries consistent with fighting; (3) Beavers
had stated to nurses immediately following the fight that he was
attacked with an adapter; (4) Brown’s adapter was found in Beavers’
cell after the fight; and (5) when Beavers was subsequently inter-
viewed by Lieutenant Chris, Beavers confirmed that Brown had
assaulted him with an adapter.

Brown presented a host of claims in a state habeas petition to the
Supreme Court of Virginia. That court dismissed his petition on
November 8, 2001. Brown then reiterated his claims in a habeas peti-
tion filed in the United States District Court for the Western District
of Virginia, which also dismissed Brown’s petition on March 19,
2003. We issued a certificate of appealability on October 24, 2003 to
consider whether Brown’s right to due process was violated by
Edmonds’ refusal to call Beavers as a witness.

II.

Brown challenges the constitutionality of Virginia Department of
Corrections Division Operating Procedure ("DOP") 861.14(B)(1).
Brown alleges that Edmonds relied on DOP 861.14(B)(1) in denying
his request to call Beavers as a witness. DOP 861.14(B)(1) provides
that in all disciplinary hearings for certain types of charged offenses

[t]he IHO [Inmate Hearing Officer] shall examine each wit-
ness’ statement for relevance and repetitiveness. A witness’
written statement shall not be used in lieu of the witness’
testimony at a Disciplinary Hearing, except at Level 5 and
6 institutions and segregation units; the statement from an
inmate witness is sufficient. Staff witnesses requested by the
 BROWN v. BRAXTON 5
inmate should appear at the Disciplinary Hearing at Level
5 and 6 institutions and in segregation units.

DOP 861.14(B)(1) thus regulates the use of witness testimony in
disciplinary hearings, and it draws distinctions based upon the type of
institution at which the accused inmate is housed, the type of witness
sought by the accused inmate, and the type of testimony to be offered
by the witness. Specifically, DOP 861.14(B)(1) allows inmates at all
Virginia correctional institutions an unqualified right to call staff wit-
nesses at disciplinary hearings. However, only inmates at Level 1, 2,
3 and 4 facilities are guaranteed the right to call willing fellow
inmates as live witnesses. Prisoners at Level 5 and 6 facilities who
wish to present testimony from their fellow inmates may be required
to submit written statements in lieu of live testimony.

A.

An analysis of the constitutionality of DOP 861.14(B)(1) must
begin with the Supreme Court’s seminal case on the due process
rights of prisoners, Wolff v. McDonnell, 418 U.S. 539 (1974). In
Wolff, the Supreme Court considered how prison disciplinary hearings
must be structured in order to comport with the demands of the Due
Process Clause of the Fourteenth Amendment. The Court was clear
that inmates retain rights under the Due Process Clause, but that their
rights are "subject to restrictions imposed by the nature of the regime
to which they have been lawfully committed." Wolff, 418 U.S. at 556.
Prison disciplinary hearings, unlike criminal prosecutions or parole
revocation hearings, "take place in a closed, tightly controlled envi-
ronment peopled by those who have chosen to violate the criminal
law. . . ." Id. at 561. In many prisons, the inmates can be dangerous
to each other, and they are confined to a setting that is often rife with
tension between inmates, guards, and prison officials. Id. at 561-62.
As the Court recognized, "[i]t is against this background that disci-
plinary proceedings must be structured by prison authorities; and it is
against this background that we must make our constitutional judg-
ments. . . ." Id. at 562.

In defining the balance between inmates’ due process interests and
prison authorities’ penological needs, the Wolff Court drew some firm
lines. On the one hand, inmates are entitled to advance written notice
6 BROWN v. BRAXTON
of the claimed violation, as well as a written statement concerning the
evidence relied upon and the reasons for the disciplinary action taken.
Id. at 563. On the other hand, inmates are not entitled to confront the
witnesses against them, nor are they guaranteed the right to retained
or appointed counsel. Id. at 567-70; see also Baxter v. Palmigiano,
425 U.S. 308, 315-22 (1976) (discussing limited range of inmate
rights in prison disciplinary proceedings).

But with regard to an inmate’s right to present evidence in his
defense, the Court took a more nuanced view. An inmate facing disci-
plinary proceedings has the qualified right "to call witnesses and pre-
sent documentary evidence in his defense when permitting him to do
so will not be unduly hazardous to institutional safety or correctional
goals." Wolff, 418 U.S. at 566. The purpose of the qualification was
manifest: "Prison officials must have the necessary discretion to keep
the hearing within reasonable limits and to refuse to call witnesses
that may create a risk of reprisal or undermine authority, as well as
to limit access to other inmates to collect statements or to compile
other documentary evidence." Id. Thus after Wolff, it was clearly
established that prison officials had the discretion to deny witness
requests, where legitimate penological interests justified excluding a
witness.

Wolff did leave open an important question that has divided the cir-
cuits: whether prison officials had to consider witness requests on a
case-by-case basis, or whether they could formulate regulations
designed to deal with such requests categorically. Compare Ramer v.
Kerby, 936 F.2d 1102, 1104 (10th Cir. 1991) (Wolff demands an "in-
dividualized determination" whether to grant an inmate’s witness
request); King v. Wells, 760 F.2d 89, 93 (6th Cir. 1985) ("Wolff
requires that officials make an individualized decision on the facts of
each case. . . ."); Dalton v. Hutto, 713 F.2d 75, 78 (4th Cir. 1983)
(Wolff deems "per se proscriptions against the calling of certain cate-
gories of witnesses" violative of due process); Bartholomew v. Wat-
son, 665 F.2d 915, 918 (9th Cir. 1982) (Wolff demands "a case-by-
case analysis of the potential hazards" of calling a particular witness),
with Whitlock v. Johnson, 153 F.3d 380, 386-87 (7th Cir. 1998) (rec-
ognizing room for generalized rules that exclude certain types of wit-
nesses); McGuinness v. Dubois, 75 F.3d 794, 799-800 & n.7 (1st Cir.
1996) (questioning the case-by-case requirement); Powell v.
 BROWN v. BRAXTON 7
Coughlin, 953 F.2d 744, 749 (2d Cir. 1991) (upholding policy against
calling prison mental health clinicians in inmates’ presence).* How-
ever, we need not revisit that debate here, because Wolff establishes
beyond doubt all that is necessary to resolve this case: hearing offi-
cers like Edmonds may decide that legitimate penological interests
justify the denial of an individual inmate’s witness request, and their
decisions are not to be lightly second-guessed by courts far removed
from the demands of prison administration.

B.

The parties dispute whether Inmate Hearing Officer Edmonds
applied DOP 861.14(B)(1) as a categorical rule against live testimony
by inmate witnesses at Level 5 and 6 facilities. However, the district
court reviewed the tapes of Brown’s disciplinary hearing and found
as a factual matter that Edmonds had individually considered Brown’s
request. In all events, it is clear that Edmonds acted under the author-
ity of the regulation in declining to call Beavers in person. The simple
question before us is whether we should defer to his decision. For at
least three reasons, we conclude that we must.

1.

Initially, DOP 861.14(B)(1) serves legitimate penological interests.
The regulation is designed above all to prevent inmates from force-
fully coercing testimony out of their fellow prisoners. Simply put, it
protects inmates’ safety. "Retaliation is much more than a theoretical
possibility" for inmates who are called as witnesses in disciplinary
hearings, Wolff, 418 U.S. at 562; it is a "very real danger[ ]," Ponte

*In Ponte v. Real, 471 U.S. 491, 496 (1985), the Supreme Court inti-
mated that broader policies designed to deal with witness requests might
be constitutionally permissible. Accordingly, in Ponte’s wake, there has
been a growing recognition that prisons may develop witness request
policies for sensible reasons. See, e.g., Whitlock, 153 F.3d at 387
(explaining how Ponte "allow[ed] for the possibility that some [blanket]
policies, if sensitively designed and administered, could be constitu-
tional"); Powell, 953 F.2d at 749 (same). In view of the grounds for our
decision here, we need not address the continuing viability of our deci-
sion in Dalton in the face of Ponte and its progeny.
8 BROWN v. BRAXTON
v. Real, 471 U.S. 491, 495 (1985). As the Supreme Court has recog-
nized, prisoners are "subject to the unwritten code that exhorts
inmates not to inform on a fellow prisoner," and they are vulnerable
should they elect to violate that code. Wolff, 418 U.S. at 562. Cer-
tainly inmate witnesses do not always testify under threat of coercion.
Yet the broader concern of reprisal necessitates protection for inmate
witnesses, especially at prisons like Red Onion that are filled with the
State’s most hardened criminals. Virginia has rightly sought to dimin-
ish the risk to maximum security inmates’ safety by allowing them to
testify in writing.

The regulation also attempts to reduce the shuffling of inmates
inside maximum security prisons. Disciplinary hearings have placed
a serious administrative burden on prisons, whose caseloads can
require standing disciplinary boards that convene daily to hear hun-
dreds of cases a week. See, e.g., Whitlock v. Johnson, 153 F.3d 380,
389 (7th Cir. 1998). In this context, it is truer than ever that "the unre-
stricted right to call witnesses from the prison population carries obvi-
ous potential for disruption and for interference with the swift
punishment that in individual cases may be essential to carrying out
the correctional program of the institution." Wolff, 418 U.S. at 566.
Again, DOP 861.14(B)(1) quite reasonably attempts to minimize the
substantial disruption and administrative burden that would flow from
an unrestricted right to live witness testimony.

2.

Secondly, the State has tailored its regulation to meet its penologi-
cal concerns. The twin dangers of retaliation and disruption are pres-
ent to some degree whenever inmates are allowed to call their fellow
prisoners as witnesses in disciplinary proceedings. Yet the Virginia
Department of Corrections has not sought to limit live testimony from
all kinds of witnesses, nor has it sought even to limit live testimony
from inmate witnesses at all kinds of facilities.

Rather, the State has simply vested prison officials like Edmonds
with the discretion to decide whether some relatively few inmates —
those inmates held at maximum security facilities — should testify in
person or in writing. For while both oral and written testimony pre-
sent some danger of retaliation and disruption, the face-to-face, con-
 BROWN v. BRAXTON 9
frontational nature of oral testimony creates more serious difficulties
for prison officials. In sum, the State has tailored its regulation to
meet its most pressing needs by placing limits on the live testimony
of its most dangerous inmates — those inmates who pose the severest
threat to personal and institutional safety. The bounds that prison
authorities have placed on live witness testimony thus represent a sen-
sible "mutual accommodation between institutional needs and objec-
tives and the provisions of the Constitution. . . ." Wolff, 418 U.S. at
556.

Indeed, it is the moderateness of Virginia’s regulation that sets it
apart from other witness request policies. For example, in Dalton v.
Hutto, 713 F.2d 75, 77-78 (4th Cir. 1983), this court invalidated a
Virginia prison guideline — in fact, a less artfully crafted predecessor
to DOP 861.14(B)(1) — that denied all inmates the right to call any
witness who would not appear voluntarily. Pursuant to Guideline No.
861, two corrections officers had refused to testify at prisoner James
Dalton’s disciplinary hearing as Dalton had requested. Dalton, 713
F.2d at 76. The court concluded that for an inmate’s due process right
to be meaningful, prison officials could not stand idly by while any
witness refused to testify for any reason or even no reason at all. Id.
at 78.

However, the differences between DOP 861.14(B)(1) and the
guideline at issue in Dalton are stark. Unlike DOP 861.14(B)(1),
Guideline No. 861 made no provision for the submission of written
statements in lieu of live testimony. Thus Dalton and the prison tribu-
nal were wholly without the benefit of Dalton’s desired testimony.
See id. at 77. Guideline No. 861 also made no attempt to distinguish
between inmate, staff, and outside witnesses. In fact, in Dalton it was
two corrections officers who were refusing to testify — witnesses
who would be compelled to testify under DOP 861.14(B)(1), which
accords inmates at all Virginia correctional institutions an unqualified
right to call staff witnesses at disciplinary hearings.

In short, Dalton’s right to call witnesses was essentially eviscer-
ated, which Wolff does not permit; but Brown’s right to call witnesses
was instead qualified, which Wolff expressly sanctions. The distinc-
tion is crucial, because the majority of regulations invalidated by our
sister circuits have been absolute prohibitions on the calling of wit-
10 BROWN v. BRAXTON
nesses or certain categories of witnesses. Those regulations have
applied system-wide to all disciplinary hearings, and they have
resulted in the loss of testimony altogether. See, e.g., Whitlock v.
Johnson, 153 F.3d 380, 388 (7th Cir. 1998) (invalidating "policy of
denying virtually all requests for live witnesses"); Mitchell v. Dupnik,
75 F.3d 517, 525 (9th Cir. 1996) (invalidating "a blanket policy of
prohibiting inmates from calling any witnesses under any circum-
stances to testify at disciplinary hearings"); Forbes v. Trigg, 976 F.2d
308, 318 (7th Cir. 1992) (invalidating policy that allowed inmates and
staff members to refuse to testify at disciplinary hearings); King v.
Wells, 760 F.2d 89, 93 (6th Cir. 1985) (invalidating prison’s "policy
of not permitting witness testimony under any circumstances").

Virginia’s policy suffers no similar infirmity. In truth, it is difficult
to imagine how Virginia could draft a narrower regulation: DOP
861.14(B)(1) permits prison officials to limit only a type of testimony
(live testimony) from a type of witness (an inmate witness) at a type
of facility (a Level 5 or 6 prison). If any regulation dealing with wit-
ness requests at prison disciplinary hearings is to survive constitu-
tional scrutiny — and Ponte suggests some do — surely it is this one.
Invalidating DOP 861.14(B)(1) would preclude virtually any policy
that dealt with inmates’ witness requests, encasing disciplinary pro-
ceedings in the sort of "inflexible constitutional straitjacket" that the
Supreme Court has condemned. Wolff, 418 U.S. at 563. It makes
sense to treat inmate witnesses differently from other types of wit-
nesses, and maximum security inmate witnesses differently still.

3.

Thirdly, the reasonableness of Virginia’s regulation could hardly
be clearer than in its application to the present case. Numerous offi-
cers witnessed the fight between Brown and Beavers; both were
treated for their injuries; physical evidence at the scene substantiated
the officers’ account; and Beavers himself initially said that he had
been attacked by Brown. Why then would Beavers change his story?
As the district court found, Edmonds believed that Beavers feared
what would happen to him in the event that he did not recant. After
all, Beavers had already been assaulted once. Had he informed on
Brown, either in his written statement or in live testimony at the hear-
ing, it was not difficult for him to imagine how Brown would repay
 BROWN v. BRAXTON 11
his forthrightness. Granted, Beavers may well have altered his testi-
mony for reasons other than the risk of retaliation, but that makes it
no less reasonable for Edmonds to have taken the risk seriously. If
Wolff and Ponte teach anything, it is that the dictates of due process
do not require prison officials to turn a blind eye to the stubborn reali-
ties of prison life.

Moreover, Brown made no attempt at his disciplinary hearing to
explain the value of calling Beavers as a live witness. Beavers’ single
sentence — "At no time did inmate D. Brown assault me with his
adapter or in any other way" — was the sum and substance of his tes-
timony. This was not a complicated disciplinary hearing: either
Brown had assaulted Beavers, or he had not. Edmonds read Beavers’
statement into the record at the hearing and was well aware that Bea-
vers denied the assault, just as he was well aware of the ample evi-
dence that Beavers’ statement was a post hoc falsification.

While Brown asserts that Beavers would have testified at greater
length than his brief, one-sentence written statement, Brown never
specifies what else Beavers would have said. Thus even if Edmonds
somehow erred in not calling Beavers as a live witness, Brown has
not demonstrated that he was harmed by Beavers’ testifying in writing
rather than in person. See, e.g., Piggie v. Cotton, 344 F.3d 674, 678
(7th Cir. 2003) (holding potential due process violation harmless
where accused inmate could not explain how witness’ live testimony
would have helped him); McGuinness v. Dubois, 75 F.3d 794, 800
(1st Cir. 1996) (holding lack of live testimony harmless where inmate
was able to present defense, supported by witness affidavits); Powell
v. Coughlin, 953 F.2d 744, 751 (2d Cir. 1991) (holding denial of
inmate’s witness request for her psychiatrist harmless, in part because
psychiatrist’s notes were admitted instead).

In fact, as the district court noted, Brown was likely helped — not
harmed — by Beavers’ absence. Had Beavers testified in person, he
would have had to explain his statement to nurses, "I was hit with an
adapter," as well as his similar statement to Lieutenant Chris that he
had been assaulted by Brown. Surely Beavers would have been asked
to account for the flat contradictions in his earlier oral statements and
his subsequent written testimony. And then Beavers would have been
placed squarely on the hot seat that Edmonds was attempting to
12 BROWN v. BRAXTON
avoid: Beavers could have struggled to explain how he was injured
in a fight that never occurred, or he could have informed on Brown
and tempted whatever fate befalls jailhouse snitches. No matter Bea-
vers’ choice, his testimony could not possibly have added anything to
Brown’s defense.

III.

As if Brown’s task were not sufficiently Sisyphean, he asks that we
gainsay Edmonds’ decision within the context of the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214.
Under AEDPA, we may grant Brown habeas corpus relief only if the
Supreme Court of Virginia’s dismissal of Brown’s petition was "con-
trary to, or involved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court of the United
States." 28 U.S.C. § 2254(d)(1) (2000). Yet the Supreme Court’s case
law in this area dictates precisely the opposite result from that urged
by Brown.

Again and again, the Supreme Court has cautioned that we should
be hesitant to substitute our judgments for those of prison administra-
tors. See Sandin v. Conner, 515 U.S. 472, 482 (1995) ("[F]ederal
courts ought to afford appropriate deference and flexibility to state
officials trying to manage a volatile environment."); Ponte, 471 U.S.
at 499 ("Given [Wolff’s] significant limitations on an inmate’s right
to call witnesses, and given our further observation in Wolff that ‘[w]e
should not be too ready to exercise oversight and put aside the judg-
ment of prison administrators,’ it may be that a constitutional chal-
lenge to a disciplinary hearing . . . will rarely, if ever, be successful.")
(citation omitted); Jones v. North Carolina Prisoners’ Labor Union,
Inc., 433 U.S. 119, 126 (1977) ("Because the realities of running a
penal institution are complex and difficult, we have also recognized
the wide-ranging deference to be accorded the decisions of prison
administrators."); Wolff, 418 U.S. at 566-67 ("[Prison officials] must
have the necessary discretion [to limit the calling of witnesses] with-
out being subject to unduly crippling constitutional impediments.").
Here, Inmate Hearing Officer Edmonds considered the merits of
Brown’s witness request, but concluded that legitimate penological
interests warranted denying the request. Perhaps chief among those
interests, Edmonds acted to protect one of the inmates whose safety
 BROWN v. BRAXTON 13
was entrusted to his care. We cannot say that his effort ran afoul of
the constraints of due process. The judgment of the district court is
therefore

AFFIRMED.