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Williams v. Pszczolkowski

Supreme Court of West Virginia

June 17, 2019

Rocky H. Williams, Petitioner Below, Petitioner
v.
Karen Pszczolkowski, Superintendent, Northern Correctional Facility, Respondent Below, Respondent

          Marshall County 17-C-48

          MEMORANDUM DECISION

         Petitioner Rocky H. Williams, pro se, appeals the September 22, 2017, order of the Circuit Court of Marshall County dismissing his petition for writ of habeas corpus. Respondent Karen Pszczolkowski, Superintendent, Northern Correctional Facility, [1] by counsel John H. Boothroyd, filed a response in support of the circuit court's order. Petitioner filed a reply.

         The Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         Petitioner is an inmate at the Northern Correctional Facility, who has been convicted of disciplinary offenses which are classified as class I violations pursuant to Section 5(A)(1) of DOC policy directive 325.00 involving misconduct that "threaten[s] life or limb" and/or "seriously breach[es] facility security." Based on evidence seized by the mailroom supervisor, petitioner attempted to smuggle an intoxicating substance into the facility by sending a girlfriend $200 to purchase five grams of a compound known as "JWH" which, according to respondent, produces the same high as marijuana, and an additional $10 to purchase a small spray bottle and non-scented fingernail polish remover.[2] In the letters to his girlfriend, petitioner instructed her to combine the powdered JWH and the fingernail polish remover in the spray bottle until the mixed substance looked like milk and spray the liquid onto sheets of notebook paper to infuse the sheets with JWH. Petitioner requested his girlfriend to send him three sheets of the infused paper at a time, until the supply of JWH was gone, "because it's three sheets per gram."

         On September 28, 2016, the mailroom supervisor issued a disciplinary violation report to petitioner that charged him with "trafficking" in "any substance which may be injected, consumed, 'huffed,' inhaled, or ingested by any means with an intoxicating effect," in violation of disciplinary rule 1.11 of DOC policy directive 325.00, and with "trading or selling" with another person involving an "offer for trade, sale[, ] loan, gift[, ] or receipt [of] any good[s] . . . of any nature . . . other than through the system established by the [Superintendent] for that purpose," in violation of disciplinary rule 1.23. Following a hearing, a correctional hearing officer dismissed the disciplinary violation report because it "[did] not properly describe a rule violation." Thereafter, the mailroom supervisor issued a revised disciplinary violation report to petitioner on October 6, 2016.

         At a second disciplinary hearing, petitioner argued that the evidence against him was inadmissible because of alleged procedural errors in its seizure and in the chain of custody. However, a different correctional hearing officer at the second hearing ruled that DOC policy directive 325.00 did not require the exclusion of the evidence.[3] The correctional hearing officer subsequently found petitioner guilty of "trafficking" and "trading or selling." For each disciplinary conviction, the correctional hearing officer sentenced petitioner to sixty days of loss of privileges and sixty days of punitive segregation. The correctional hearing officer further ordered the loss of 180 days of credit for good conduct. Pursuant to disciplinary rule 5.01, respondent approved this loss of "good time" credit. Petitioner appealed his disciplinary convictions and sanctions to respondent who affirmed the correctional hearing officer's disposition. Petitioner further appealed to the Commissioner of Corrections who also affirmed the disposition, finding "no reason to deviate from the decision of [respondent]." On March 21, 2017, petitioner filed a petition for a writ of habeas corpus challenging the disciplinary convictions and sanctions. Following an August 15, 2017, hearing, at which petitioner was represented by an attorney, the circuit court dismissed the habeas petition, finding "[no] probable cause exists to believe that . . . petitioner may be entitled to any relief whatsoever."

         Petitioner now appeals pro se the circuit court's September 22, 2017, dismissal of the habeas petition. We apply the following standard of review in habeas appeals:

"In reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three-prong standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard; the underlying factual findings under a clearly erroneous standard; and questions of law are subject to a de novo review." Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, Anstey v. Ballard, 237 W.Va. 411, 787 S.E.2d 864 (2016).

         On appeal, petitioner raises numerous issues. We address only those four issues that could conceivably have merit and summarily reject all others.[4] Petitioner first argues that his disciplinary convictions violated his right to due process of law because a second hearing was held after he was issued a revised disciplinary violation report. The parties agree that the disciplinary charges were dismissed following petitioner's first hearing, but disagree as to the reason for the dismissal. Petitioner argues that the dismissal was based on a finding that the evidence against him was inadmissible. Respondent counters that the first disciplinary violation report was dismissed because it failed to state an offense. Based on our review of the record, we agree with respondent and find that the correctional hearing officer dismissed the first disciplinary violation report because it did not properly describe a rule violation. Disciplinary rule 6.11 of DOC policy directive 325.00 provides that a correctional hearing officer may remand a disciplinary violation report to the relevant personnel for revision "[i]n the event the violation report does not properly describe a disciplinary rule violation[.]" Disciplinary rule 6.11 further provides that the revised disciplinary violation report be issued to the inmate. Therefore, after reviewing the record, we find that the correctional hearing officer's remand to allow the issuance of a revised disciplinary violation report did not violate DOC policy directive 325.00.

         We further find that petitioner's due process rights were not violated. In syllabus point one of Nobles v. Duncil, 202 W.Va. 523, 505 S.E.2d 442 (1998), we reiterated that minimum due process standards for prison disciplinary hearings are:

"(a) Written notice to the inmate of the claimed violation; (b) Disclosure to him of the evidence against him; (c) Opportunity to be heard and to present witnesses and documentary evidence; (d) The right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) A neutral and detached hearing body; (f) A written statement by the fact-finders of the evidence relied on and reasons for discipline; and (g) The right to counsel if the state is represented by a lawyer." Syllabus Point 1, Harrah v. Leverette, 165 W.Va. 665, 271 S.E.2d 322 (1980).

         Here, we find that only the first of these standards was implicated by the correction hearing officer's remand of the disciplinary violation report for revision by the relevant personnel. Based on our review of the record, we find that the revised disciplinary violation report was issued to petitioner. Therefore, given that disciplinary rule 6.11 authorized a remand for that purpose, we conclude that the issuance of a revised disciplinary violation report did not violate petitioner's due process rights.

         Second, petitioner argues that the evidence against him was inadmissible because of alleged procedural errors in its seizure and in the chain of custody. However, the correctional hearing officer at the second hearing ruled that DOC policy directive 325.00 did not require the exclusion of the evidence. Disciplinary rule 6.11 provides that the correctional hearing officer "may" exclude evidence because of irrelevancy, redundancy, or disruption to institutional order or security. In Rosen v. Rosen,222 W.Va. 402, 409, 664 S.E.2d 743, 750 (2008), we found that "the word 'may' is inherently permissive in nature and connotes discretion." Also, an abuse of discretion standard normally applies to evidentiary rulings. See Syl. Pt. 1, McD ...


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