United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 14, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-21067
DANNY RICHARDS,
Petitioner-Appellee,
versus
DOUG DRETKE, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before GARWOOD, JOLLY and BARKSDALE, Circuit Judges.
GARWOOD, Circuit Judge:
Doug Dretke, Director of the Texas Department of Criminal
Justice, Correctional Institutions Division, appeals a district
court judgment granting a petition for writ of habeas corpus by
inmate Danny Richards (Richards). The judgment vacated a guilty
finding against Richards in a prison disciplinary hearing. We
conclude that there is some evidence to support the disciplinary
decision, and accordingly reverse the district court’s judgment.
Facts and Proceedings Below
Richards has been serving a fifty-year Texas prison sentence
since 1989 for possession of a controlled substance. On July 20,
2002, a fight occurred in a day room at the prison in which an
inmate named Jerry Rotenberry (Rotenberry) was injured from being
hit and kicked. None of the prison’s staff witnessed the fight.
On August 29, 2002, Richards was notified that he was charged with
participating in an assault on Rotenberry during the July 20
fight.1 A “counsel substitute” assigned to Richards obtained
statements from three witnesses Richards named. Richards read two
of these statements into the record at the hearing held on August
30, 2002, but did not read the third, from Rotenberry. Richards’s
counsel substitute admitted at the hearing that Rotenberry’s
statement was “definitely detrimental to” Richards.
The offense report prepared by the charging officer, Sergeant
Burson, was submitted at the hearing. The report includes the
statement that “Offender Rotenberry identified offenders Adams,
Richards and Formby as the offenders who kicked him while he was on
the floor of the dayroom.” Sgt. Burson testified at the hearing
that he did not witness the assault, and that his conclusion that
Richards had been involved in the assault was based on his
investigation. Richards was unable to elicit at the hearing the
1
At the time Richards was notified, he signed a waiver of his right to 24-
hour notice of the hearing, but the hearing was held more than 24 hours later
nonetheless.
2
name of anyone (other than Rotenberry) who had identified him to
Sgt. Burson as having participated in the assault. The hearing
officer found Richards guilty and assessed punishment including a
loss of thirty days good-time credit. On the hearing record, the
hearing officer listed as his evidence and reasons for
determination of guilt “Officer’s report” (by circling a preprinted
option), “officer’s live testimony,” and “IOC’s Sgt Burson STGO and
Mr. Knight O.I.G./pictures.”2
The interoffice communication from Sgt. Burson listed by the
hearing officer was a report filed with the district court under
seal, to protect the identities of the inmates interviewed by
Burson.3 The report summarizes Sgt. Burson’s interviews of twelve
inmates, including Richards and Rotenberry. With one exception,
the report gives the name, age, race, and nature of the sentence
being served for each of the inmates interviewed.4 Five of the
inmates, including Rotenberry, identified Richards as one of
Rotenberry’s attackers. At least three of these inmates, including
Rotenberry, identified Richards using a photo line-up. Five of the
inmates, including Richards, though acknowledging being present in
the day room during the incident, claimed not to know anything
2
I.O.C. stands for Inter-Office Communication, STGO for Security Threat
Group Office, which Sgt. Burson was affiliated with, and O.I.G. for Office of the
Inspector General, which Mr. Knight was affiliated with. The “pictures” were
apparently photographs of Rotenberry’s bruises.
3
The report is also referred to herein as the “confidential report.”
4
One inmate is identified as a “Confidential Informant,” with his age, race
and sentence given.
3
about who was involved. The other two inmates gave some details
about the overall altercation, which had several participants, but
apparently did not witness the assault on Rotenberry and gave no
information on Rotenberry’s assailants.
After exhausting appeals within the prison system, Richards
filed a petition for writ of habeas corpus with the district court
in November of 2002. Finding that Sgt. Burson’s report did not
include information on the reliability of the interviewed inmates
or their statements, the court held that due process requirements
were not met. The court granted Richards’s petition for writ of
habeas corpus and ordered the Department of Criminal Justice to
vacate the finding of guilt in the disciplinary hearing, and to
either grant a new hearing or reinstate Richards’s good-time
credit. Finally, the court granted in part a motion by Richards
for discovery in the event of a new hearing, with respect to any
statements Rotenberry made to investigating officers.
Discussion
I. Standard of Review
With regard to requests for federal habeas corpus relief, we
review a district court’s findings of fact for clear error and
decide issues of law de novo. Dyer v. Johnson, 108 F.3d 607, 609
(5th Cir. 1997). The legal standard for due process in prison
disciplinary hearings is that there be “some evidence” to support
the disciplinary decision. Superintendent, Mass. Correctional
4
Inst. v. Hill, 105 S.Ct. 2768, 2774 (1985). Whether there is “some
evidence” is an issue of law reviewed de novo. Hudson v. Johnson,
242 F.3d 534, 535 (5th Cir. 2001).
II. Due Process in Prison Disciplinary Hearings
Whether a denial of good-time credits creates a liberty
interest protected by procedural due process is determined by state
law. Hudson, 242 F.3d at 535–36. Under the Texas statutory scheme
in place at the time of Richards’s conviction in 1989, Richards was
eligible for release to mandatory supervision at a date determined
in part by his accrued good conduct time. Tex. Code Crim. Proc.
Ann. art. 42.18, §8(c) (Vernon 1988). We therefore assume that
Richards has a liberty interest in his good-time credits. Malchi
v. Thaler, 211 F.3d 953, 957–58 (5th Cir. 2000).5
When there is a protected liberty interest in good-time
credit, the United States Supreme Court has held that due process
demands only that there be “some evidence” to support a
disciplinary officer’s decision. Superintendent, Mass.
Correctional Inst. v. Hill, 105 S.Ct. 2768, 2774 (1985). “The
fundamental fairness guaranteed by the Due Process Clause does not
require courts to set aside decisions of prison administrators that
5
A 30-day delay of a mandatory supervision release might be de minimis and
therefore not give rise to a due process claim. The Malchi court held that while
a few days might be de minimis, six months was not. Malchi, 211 F.3d at 958.
That issue, however, is not before us as it has not been raised by Dretke, who
has not contested Richards’s liberty interest or that he would be entitled to
some federal habeas relief if there were not the requisite “some evidence” to
support the disciplinary decision or if the proceedings otherwise violated his
due process rights.
5
have some basis in fact.” Id. The Court noted that a reviewing
court is not required to examine the entire record of a proceeding,
independently assess witness credibility, or weigh the evidence.
Id. Minimum procedures that must be followed in disciplinary
hearings include 1) providing advance written notice to the accused
of the claimed violation, 2) providing a written statement by the
factfinder of the evidence relied upon and reasons for the
disciplinary action taken, and 3) allowing the accused inmate to
“call witnesses and present documentary evidence in his defense
when permitting him to do so will not be unduly hazardous to
institutional safety or correctional goals.” Wolff v. McDonnell,
94 S.Ct. 2963, 2979 (1974).
III. Richards’s Disciplinary Hearing
In holding that Richards was denied due process based on a
finding that Sgt. Burson’s confidential report did not include
information on the reliability of the inmates interviewed, the
district court apparently applied a standard imposed when guilty
findings are based on the word of confidential informants. In this
circuit and others, “some evidence” must constitute more than
information from a confidential informant, when no evidence is
presented to the disciplinary official tending to support the
informant’s reliability. Broussard v. Johnson, 253 F.3d 874,
876–77 (5th Cir. 2001). Testimony as to the reliability of a
confidential informant and the informant’s firsthand knowledge can
6
be sufficient evidence of the informant’s reliability. Smith v.
Rabalais, 659 F.2d 539, 541, 546 (5th Cir. 1981). An
identification of an accused inmate in a written report by an
officer who witnessed the infraction can also be sufficient
evidence to support a finding of guilt. Hudson v. Johnson 242 F.3d
534, 536–37 (5th Cir. 2001).
The problem with application of this reliability standard in
the instant appeal is that Richards was not found guilty based on
the word of confidential informants. Although the identities of
the interviewed inmates were withheld from Richards for their
protection, the investigating officer knew all of the inmates’
identities and the hearing officer knew all but one.6 This is in
contrast to the situation in Broussard, in which neither the
investigating officer nor the hearing officer knew the identity of
a confidential informant (known only to the warden) accusing the
disciplined inmate. Broussard, 253 F.3d at 875. Because most of
the inmates interviewed by Sgt. Burson were not “confidential” with
respect to either the hearing officer or Sgt. Burson, it is not
clear that the reliability determination described in Broussard is
required in the case of Richards’s hearing. Id. at 876.
6
The district court was unsure whether Sgt. Burson’s report was submitted
to the hearing officer. However, both the hearing officer’s written record of
the disciplinary hearing and his statement on the hearing tape cite an
interoffice communication from Sgt. Burson as being among the evidence
considered. The only interoffice communication from Sgt. Burson in the record
is the confidential report.
7
Even to the extent a reliability determination might be
needed, the confidential report contains sufficient indicia of
reliability. Contrary to the district court’s finding, the report
does contain information that could be used by the hearing officer
in assessing reliability of the interviewed inmates. For example,
because Sgt. Burson’s report describes the fight as being between
black and white inmates, the information provided as to the race of
each inmate interviewed may be relevant to reliability in this
case. The report further indicates that each interviewed inmate
was present in the day room during the fight and therefore had
firsthand knowledge. Firsthand knowledge is an indicator of
reliability. Smith, 659 F.2d at 541, 546. Moreover, the multiple
inmate statements implicating Richards tend to corroborate each
other on various details of the fight, such as the specific
argument that set off the fight, which inmates it started with, and
the sequence of the inmates involved. Some of these details are
further corroborated by the statements of the two inmates who had
information on parts of the fight but not specifically on the
assault on Rotenberry. Multiple corroborating accounts have also
been recognized as an indicator of reliability. Wells v. Israel,
854 F.2d 995, 1000 (7th Cir. 1988) (“[L]etters from different
inmates corroborate and confirm material details.”).
Not only is the confidential report “some evidence” in support
of Richards’s guilty finding, but there is other evidence as well.
8
In the witness statements he submitted at the disciplinary hearing
and in his briefs to the district and appellate courts, Richards
makes clear that the fight did take place on the date in question
in the day room, and that he was present at the time. Richards
further admits that Rotenberry has identified him as an assailant.
Richards disputes Rotenberry’s credibility on the ground that
Rotenberry did not identify Richards immediately after the fight,
but a month later after Sgt. Burson had interviewed other inmates.
Credibility determinations are the province of the hearing officer,
however. Hudson, 242 F.3d at 537.
Comparison of the case against Richards to those against
accused inmates in some of our previous cases further illustrates
that there is sufficient evidence to support the hearing officer in
finding Richards guilty. In Broussard, an informant told the
warden that an inmate planned an escape attempt and had hidden bolt
cutters in the kitchen area of the prison. Broussard, 253 F.3d at
875. The warden relayed the information to the investigating
officer, withholding the name of the informant. The investigating
officer found the bolt cutters in the kitchen, and the accused
inmate was found guilty in a disciplinary hearing and lost all of
his accumulated good-time credit. Id. This court held that the
inmate did not receive due process because neither the
investigating officer nor the hearing officer knew the identity of
the confidential informant, and no information on the reliability
9
of the informant was provided to the hearing officer. Id. at
876–77. Without the informant’s information, the bolt cutters were
linked to the accused inmate only by the fact that he, along with
about one hundred other inmates, had access to the area in which
they were found. Id. at 877. The case against Richards is far
stronger than that against the inmate in Broussard: the identities
of all but one of the witnesses implicating Richards were known to
the hearing officer (and the identities of all were known to the
investigating officer), and Richards was undisputedly present in
the day room at the time of the incident, rather than being
connected only through having access to the room.
In Smith, an inmate was found guilty in a disciplinary hearing
of dealing in narcotics. Smith, 659 F.2d at 541. The only
evidence against the inmate was testimony from the investigating
officer that one or more confidential informants had implicated
him. Id. The disciplinary board making the decision knew neither
the identities of the informants nor any details of the
confidential information. Id. at 546 n.20. Nor was the defendant
informed of the identity of any of them. Because the investigating
officer testified that the informants had firsthand knowledge and
had been reliable in the past, this court held that the
disciplinary hearing met constitutional requirements. Id. at 546.
Again, the case against Richards is stronger than that against the
inmate in Smith. The hearing officer knew identities of almost
10
all of the witnesses against Richards, and had complete details of
their statements.
Conclusion
The evidence against Richards, including the offense report
and confidential report of the investigating officer and Richards’s
own admissions, is more than sufficient to meet constitutional due
process requirements. The judgment of the district court is
accordingly
REVERSED.
11