Summary: An inmate stripped of good-time credit for his alleged involvement in gang activity petitioned this court under 28 U.S.C. § 2254 for restoration of his good-time credits. The respondent filed a motion to dismiss, averring that the inmate had not petitioned the North Dakota Supreme Court for relief and therefore had failed to exhaust his state court remedies. In the alternative, the respondent asserted that the petition failed on the merits. The magistrate judge recommended that: (1) the motion as it pertained to exhaustion be granted; (2) the motion as it pertained to the petition’s merits be denied without prejudice because the inmate’s due process claims may have merit; and (3) the inmate’s petition be stayed and held in abeyance to give the inmate an opportunity to exhaust his state court remedies.
Case Name: Alex v. Schuetzle
Case Number: 1-05-cv-113
Docket Number: 8
Date Filed: 6/5/06
Nature of Suit: 550
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHWESTERN DIVISION
Adrian Alex,
Timothy Schuetzle, Warden, North Dakota State Penitentiary
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) ) REPORT AND RECOMMENDATION ) ) ) Case No. 1:05-cv-113 ) ) ) ) ) |
Petitioner Adrian Alex (“Alex”) filed a Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody seeking restoration of his good-time credits. Respondent answered and moved to dismiss the petition. The Honorable Daniel L. Hovland, Chief Judge of the District Court, has referred this matter to the undersigned for preliminary consideration.
In his motion to dismiss, Respondent argues that Alex’s petition must be dismissed for failure to exhaust state-court remedies. In the alternative, Respondent urges the court to dismiss the petition on the merits arguing that there has been no violation of Alex’s constitutional rights.
I. BACKGROUND
Alex was convicted in state court of the offense of murder, a class AA felony, in August 1996, and sentenced to fifty years’ imprisonment, with twenty-six years suspended. See Respondent’s Motion to Dismiss, Ex. 1. He was also convicted of the offense of robbery, a class B felony, and sentenced to ten years’ imprisonment. See Respondent’s Motion to Dismiss, Ex. 2. He is currently incarcerated at the North Dakota State Penitentiary (“NDSP”), where he is serving these sentences concurrently.
On November 19, 2004, Alex was given a copy of an incident report charging him with threatening another inmate, an A-42 infraction, and advised that the NDSP’s Adjustment Committee (“Committee”) was convening a disciplinary hearing to address the matter. See Respondent’s Motion to Dismiss, Ex. 3. The report indicated the incident occurred on November 17, 2004, involved a threat to another person, and provided the following limited facts:
On the above date I completed an investigation with [sic] clearly indicates that inmate Adrian Alex made threat to another inmate that they were going to jump him.
The name of the inmate to whom Alex allegedly made the threat was not disclosed. See id.
On November 22, 2004, the Committee convened a disciplinary hearing to address the charge contained in the incident report. See Respondent’s Motion to Dismiss, Ex. 3. Upon considering the incident report, a confidential investigative report, Alex’s testimony, and staff testimony, the Committee found “there was enough evidence within the confidential information and the staff supplemental information that this report should be reheard as an A-27 for gang related activities.” See Respondent’s Motion to Dismiss, Ex. 4. The Committee continued the hearing with instructions to revise the incident report. Id.
Based on the record before the court, the only information disclosed to Alex prior to, or during, the first hearing was the incident report and possibly the staff testimony for which there is no record. There is no indication that the other information considered by the Committee was disclosed, including the confidential investigative report that contained, among other things, an admission allegedly made by Alex to penitentiary officer Lt. Radenz, that he was the leader of the “Native Nation.” Alex complained to the Committee about the lack of information that had been provided to him. See Respondent’s Motion to Dismiss, Ex. 3.
Pursuant to the Committee’s instructions, Unit Manager Jean Sullivan revised the incident report to state:
On the above date [November 17, 2004], I completed an investigation which clearly indicates that inmate Adrian Alex made threats to another inmate that they were going to jump him. Adrian Alex delivered this message to the inmate as directed to by and for two other inmates.
In addition, she re-coded the infraction as an A-27, the possession and/or practice of any gang-related paraphernalia or activities. See Respondent’s Motion to Dismiss, Ex. 5. It does not appear she provided Alex with more specific information relating to the gang charge, including notice of the admission allegedly made to Lt. Radenz.
On November 29, 2004, the Committee reconvened Alex’s disciplinary hearing to address the new charge. See Respondent’s Motion to Dismiss, Ex. 6. Alex chose not to participate. See Respondent’s Motion to Dismiss, Exs. 5 and 6. Relying upon the revised incident report and the confidential investigative report, which contained the report of the admission purportedly made to Lt. Radenz, the Committee concluded:
Inmate Alex admitted to Lt. Tom Radenz on 11-19-04 that “if he was the leader of the native nation an [sic] Alex stated “yes.” Alex refused to appear before the disciplinary committee. Mr. Alex is guilty of practice of gang related activities by his own admission. 15 A-27 Report. The investigation also shows that he (Alex) is the leader of the gang. This is serious as he is organizing a threat group inside the institution.
See Respondent’s Motion to Dismiss, Ex. 6. The Committee recommended that Alex lose one month of good time and receive fifteen days of disciplinary detention. This recommendation was summarily approved by Respondent the same day. See id.
Alex claims that he first learned of his alleged admission to Lt. Radenz when he received a copy of the Committee’s written decision following the hearing. There is nothing in the written record provided to the court that contradicts this claim. And, while it is conceivable the alleged admission could have been disclosed to Alex orally during the first hearing, there is nothing that indicates this occurred.
Alex then appealed the decision to Respondent asserting he did not threaten the other prisoner as initially charged but only intended to warn him of action that may be taken by others. Alex also denied any involvement in gang activity and offered to take a lie-detector test to prove his innocence on the gang charge. In particular, he denied making any admission to Lt. Radenz claiming that Radenz must have misunderstood him. Finally, he argued that he had not been treated fairly at the initial disciplinary hearing, noting the failure of the Committee to provide him with any of the details relating to the charge. He said it was for these reasons, and the fact he believed the Committee had already made up its mind, that he did not attend the reconvened hearing. See Respondent’s Motion to Dismiss, Ex. 8.
Respondent denied Alex’s appeal on December 14, 2004. In his written denial, Respondent provided details regarding some of the evidence that had been used to find Alex guilty of the infraction, including the existence of certain photographs, which only days earlier the Committee elected not to share with Alex, claiming confidentiality. Respondent acknowledged the disputed evidence regarding whether Alex had threatened the other inmate or was merely warning him. However, Respondent went on to conclude that “your comments to Lt. Radenz and pictures we have of you with these known gang members is ample evidence for the committee to find you guilty of the A-27.” As for Alex’s written explanations, Respondent stated these should have been provided at the hearing before the Committee. In making this comment, it is not clear whether Respondent assumed that more information would have been provided to Respondent at the reconvened hearing. Respondent did not address Alex’s complaints regarding the lack of evidence made available to him. See Respondent’s Motion to Dismiss, Ex. 8.
Alex then appealed the administrative conviction to Elaine Little, the Director of the Department of Corrections and Rehabilitation, again denying any gang involvement, offering to take a lie detector test, and complaining about the unfairness of the process. See Respondent’s Motion to Dismiss, Ex. 10. This appeal was also denied. See Respondent’s Motion to Dismiss, Ex. 10.
In May 2005, Alex petitioned the state district court for a writ of habeas corpus pursuant to N.D.C.C. Chapter 32-22. See Respondent’s Motion to Dismiss, Exs. 11 & 12. His petition was denied initially on June 21, 2005, and again on reconsideration in July 2005. See Respondent’s Motion to Dismiss, Exs. 15 & 15A. The reasons for the denial are discussed in more detail later herein.
On October 31, 2005, Alex filed a Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody with this court. See Docket No. 1. The petition sets forth the following claims:
GROUND ONE: Due Process Violation; The Petitioner was not allowed to see any evidence against him prior to hearing.
GROUND TWO: Due Process Violation; Impartial Tribunal
GROUND THREE: Due Process; Use of false statement by a Corrections Officer were [sic] used against me
Id. Accompanying the petition are a number of exhibits and a memorandum of law. Alex claims in his memorandum that he never received the documentation relied upon by the Committee in reaching its decision and did not learn of his purported admission of gang involvement until after the Committee had found him guilty of the A-27 infraction. He argues that the failure of the Committee to provide him with this and other information treated as confidential violated the due process safeguards implemented by the seminal case of Wolff v. McDonnell, 418 U.S. 539, 555 (1974) for prison disciplinary proceedings. He also claims that his due process rights were violated because the Committee was biased and assumed a prosecutorial role.
On December 8, 2006, the court directed Respondent to answer or otherwise respond to Alex’s § 2254 petition. See Docket No. 4. In compliance with the court’s directive, Respondent filed an answer on February 6, 2006. See Docket No. 5. In addition, he filed a Motion to Dismiss. See Docket No. 6. Therein, Respondent asserts that Alex has failed to exhaust his federal constitutional claims in state court and, in the alternative, that Alex’s claims fail on the merits. See id.
On April 12, 2006, the court ordered Respondent to file under seal for in camera inspection
the “confidential information” considered by the Committee.
II. LEGAL DISCUSSION
A. Scope of Review
Under 28 U.S.C. § 2254, a federal court may review state-court criminal proceedings to
determine whether a person is being held in violation of the United States Constitution or other
federal law. This review is limited because, as a matter of federalism and comity, primary
responsibility for ensuring compliance with federal law in state-court criminal proceedings rests with
the state courts. Consequently, federal-court intervention is limited under § 2254(d) to the instances
in which a person is being held in custody pursuant to a state-court decision that (1) is directly
contrary to established federal law as enunciated by the United States Supreme Court, (2) is an
objectively unreasonable application of Supreme Court precedent, or (3) is based on an unreasonable
determination of the facts based on the evidence presented in the state-court proceeding. See
generally Woodford v. Visciotti, 537 U.S. 19, 26-27 (2002)(per curiam); Williams v. Taylor, 529
U.S. 362, 399-413 (2000); Williams v. Taylor, 529 U.S. 420, 436-437 (2000).
Also, in keeping with the policy of state courts having primary responsibility for enforcement
of federal rights in state-court proceedings, § 2254 contains a number of additional rules and
procedures for ensuring that state-court convictions are given the maximum effect as allowed by law
and to limit federal-court “retrials” of state-court criminal proceedings under the guise of federal
habeas corpus. See Bell v. Bradford, 535 U.S. 685, 693 (2003). For example, under § 2254(b), a
federal court may only consider habeas claims that have been first properly presented to the state
courts and exhausted using available using available state-law procedures. E.g., Rhines v. Weber,
125 S.Ct. 1528, 1533 (2006); Dixon v. Dormire, 263 F.3d 774, 777 (8th Cir. 2001).
And, in most
cases, claims that have been procedurally defaulted at the state level are not subject to review in
federal court.
Petitioners are also required in most cases to develop the factual bases for their federal claims in the state-court proceedings. A federal evidentiary hearing will generally not be available to develop the necessary facts unless a petitioner can show that the claims rely upon a new, retroactive law or that the petitioner could not have previously discovered the facts by the exercise of due diligence. 28 U.S.C. § 2254(e)(2). Finally, state-court factual findings carry a presumption of correctness that can only be rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
B. Analysis
1. State-court remedies have not been fully exhausted
Prior to seeking habeas relief in this court, Alex brought a petition for state habeas relief pursuant to N.D.C.C. ch. 32-22 alleging an unconstitutional deprivation of good-time credits. In that proceeding, Respondent, among other things, argued that habeas relief under ch. 32-22 was inappropriate. In particular, Respondent argued that §§ 32-22-02 and 32-22-17 prohibit the granting of habeas relief for the deprivation of good-time credits under ch. 32-22 when a person is legally in custody and the minimum period of incarceration that must be served before good-time reductions become effective has not yet expired. See Respondent’s Motion to Dismiss, Ex. 14.
The state district court dismissed Alex’s state habeas petition. In doing so, it accepted Respondent’s argument that habeas relief under ch. 32-22 was not available, but also went on to conclude that Alex’s constitutional claims lacked merit in any event. Alex v. Schuetzle, Order dated June 21, 2005, Case No. 05-C-0881, District Court, South Central Judicial District, Burleigh County (Hagerty, J.). See Respondent’s Motion to Dismiss, Ex. 15.
Following dismissal of his state habeas petition by the district court, Alex proceeded directly to this court by filing his § 2254 petition. He did not attempt to first seek relief from the North Dakota Supreme Court. Anticipating the argument that he has failed to exhaust his state-court remedies, Alex argues in the legal memorandum accompanying his petition that such efforts would have been futile relying upon the habeas proceedings in Schultz v. Schuetzle, Case No. 08-04-K-1582, District Court, South Central Judicial District, Burleigh County and Schultz v. Schuetzle, N.D. Supreme Court, Case No. 20050214. See Docket No. 1.
In Schultz, a state prisoner sought habeas relief under N.D.C.C. ch. 32-22 alleging an
unconstitutional deprivation of good-time credits. Respondent opposed the petition arguing, among
other things, that habes relief under ch. 32-22 was not available for the same reasons as argued in
Alex’s state district court proceeding. In Schultz, the district court not only agreed with
Respondent’s argument that relief under ch. 32-22 was not appropriate because petitioner was in
legal custody and the minimum period of his sentence before consideration of good-time reduction
had not been reached, but also went on to conclude that court review of a deprivation of good-time
credits is not appropriate because eligibility for good-conduct reduction is a matter within the
exclusive discretion of prison officials. Schultz v. Schuetzle, Order dated February 11, 2005, Case
No. 08-04-K-1582, District Court, South Central Judicial District, Burleigh County (Anderson, J.).
However, the district court in Schultz also concluded that no constitutional violations had occurred.
After being denied relief in district court, the petitioner in Schultz filed for a supervisory writ of habeas corpus from the North Dakota Supreme Court. Among other things, Respondent again argued to the supreme court that habeas relief under N.D.C.C. ch. 32-22 was not available and also defended the petition on the merits. The North Dakota Supreme Court denied the application without giving any reason for its denial. Schultz v. Schuetzle, N.D. Supreme Court, Case No. 20050214.
Alex argues that the state district court holding in Schultz that state courts do not have the power to correct an unlawful deprivation of good-time credits, coupled with the North Dakota Supreme Court’s refusal to grant any relief in that case, indicates “it would have been a futile and expensive burden to apply to the North Dakota Supreme Court when they had just refused to entertain a Petition for a Supervisory Writ with almost the same exact issues.” See Docket No. 1. In his motion to dismiss, Respondent argues that Alex failed to exhaust his available state remedies by not seeking a writ of habeas corpus under N.D.C.C. ch. 32-22 from the North Dakota Supreme Court, but does not explain why a petition to the state supreme court would be any more cognizable under ch. 32-22 than a petition to the district court, which Respondent argued in Alex’s state district court proceeding and in Schultz was not available. Respondent also argues that Alex’s reliance on the district court and North Dakota Supreme Court proceedings in Schultz is misplaced because the state district court in Schultz concluded there was no constitutional violation. However, in making this argument, Respondent neglects to point out the other holdings of the state district court in Schultz that the North Dakota Supreme Court did not address when it denied Schultz’s habeas petition without explanation.
Based on the foregoing, the court sympathizes with Alex’s confusion regarding what state remedies are now available to challenge a deprivation of good-time credits, and the appropriateness of state habeas relief under ch. 32-22. Nevetheless, it appears there still is a state remedy available that should be exhausted, but to understand why requires some explanation of how prisoner challenges to alleged unlawful deprivations of good-time credits have been dealt with in the past.
In Smith v. Satran, 295 N.W.2d 118 (N.D. 1980), the North Dakota Supreme Court considered an original petition for habeas corpus that challenged an alleged erroneous application of good-time credits. The court considered the merits of the challenge, but stated that, henceforth, such challenges must first be brought in district court pursuant to the Uniform Post-Conviction Procedure Act that was codified at former N.D.C.C. ch. 29-32 [since repealed and replaced by ch. 29-32.1]. Thereafter, in at least two cases, the North Dakota Supreme Court addressed the merits of claims of unlawful deprivation good-time credits that were presented to it by way of appeals from district proceeding initiated under former ch. 29-32. Matz v. Satran, 313 N.W.2d 740, 741 & n.1 (1981); Shulze v. Satran, 368 N.W.2d 531 (N.D. 1985).
However, since these decisions, former N.D.C.C. ch. 29-32 has been repealed and replaced by ch. 29-32.1. And, unlike its predecessor, ch. 29-32.1 contains language which suggests that a motion for post-conviction relief is not an appropriate remedy for challenging deprivations of good-time credits. Section 29-32.1-01(2) states in relevant part the following:
A proceeding under this chapter is not available to provide relief for disciplinary measures, custodial treatment, or other violations of civil rights of a convicted person occurring after the imposition of sentence.
Assuming that post-conviction relief under ch. 29-32.1 is not available, the next logical state remedy would seem to be an application for a writ of habeas corpus under N.D.C.C. ch. 32-22, which is what Alex attempted in this case. However, as noted above, two state district court judges have now concluded at the urging of Respondent that habeas relief under N.D.C.C. ch. 32-22 is not available to challenge a deprivation of good-time credits when a prisoner is legally in custody and the minimum period of incarceration that must be served before good-time reductions become effective has not yet expired. But, it does not appear the North Dakota Supreme Court has yet addressed this argument.
In the absence of habeas relief being available under ch. 32-22, there may be other
possibilities for obtaining state district court relief, including, separately or in combination: an action
for a declaratory judgment under ch. 32-23; a request for an affirmative injunction under ch. 32-06;
or a request for a writ of mandamus under ch. 32-34.
While the court is not aware of any North
Dakota cases that have permitted a challenge to a deprivation of good-time credits under these
statutes, the North Dakota Supreme Court has held that a declaratory judgment action could be
brought by a prisoner to litigate past and continuing rights to receive medical care. Ennis v.
Dasovick, 506 N.W.2d 386 (N.D. 1993). Also, courts in other states have relied upon these kinds
of remedies to consider challenges to the administration of prisoners’ sentences, including the denial
of parole and deprivation of good-time credits. See e.g., Wayne v. Missouri Board of Probation and
Parole, 83 F.3d 994, 996-97 (8th Cir. 1996) (recognizing that Missouri law sanctions several devices
for challenging a parole denial–the filing of a declaratory judgment action, petitioning for habeas
corpus relief, and seeking a writ of mandamus); Scott v. Sumner, 887 F.2d 1089, 1989 WL 123648
(9th Cir. October 3, 1989) (unpublished) (observing that mandamus proceedings are available in
Nevada to state prisoners challenging alleged misinterpretations of statutes regulating the grant of
credits for good behavior); Chapman v. Norris, 2005 WL 1922582, *3 (E.D.Ark. July 25, 2005)
(noting that declaratory and mandamus proceedings can be used in Arkansas to challenge a denial
of good-time credits); Jones v. Watkins, 945 F.Supp. 1143, 1149 (N.D. Ill. 1996) (acknowledging
that an Illinois prisoner seeking a review of a prison administrative decision can file in state court
a petition for a writ of habeas corpus, mandamus, or for declaratory judgment); Eugene v. Beck, 627
S.E.2d 284 (N.C. App. Ct. 2006) (denying on the merits an inmate’s petition for declaratory relief
and writ of mandamus wherein the inmate had alleged that a decrease in his good-time credits
constituted a violation of his constitutional rights).
Aside from what remedies might be available in state district court, it appears the North Dakota Supreme Court can grant habeas corpus relief for an unlawful deprivation of good-time credits under the original jurisdiction conferred upon it by Art. VI, § 2 of the North Dakota Constitution. See Smith v. Satran, supra; cf. Jensen v. State, 373 N.W.2d 894, 897 (N.D. 1985). Further, there is an argument that such relief can be granted despite any limitations imposed by ch. 32-22 upon a state district court granting relief. See Jensen v. State, 373 N.W.2d at 900 (stating there are limits on the legislature’s ability to restrict the court’s exercise of its original jurisdiction to issue a writ of habeas corpus).
In this case, although the state district court determined Alex was not entitled to the issuance
of a writ, in part, because N.D.C.C. ch. 32-22 was not an appropriate remedy, the district court
proceeded to address the merits of his constitutional claims. Consequently, it would be futile to
require Alex to return to state district court seeking some other remedy. However, it does appear that
Alex may yet have a remedy that he can pursue before the North Dakota Supreme Court by the filing
of an original petition for habeas corpus pursuant to the authority conferred by Art. VI, § 2 of the
North Dakota Constitution, and there does not appear to be a time limit on this remedy. Also, the
North Dakota Supreme Court may not agree with Respondent’s argument that N.D.C.C. ch. 32-22
bars consideration of Alex’s habeas claims. For these reasons, Alex should be required to exhaust
his habeas remedies before the North Dakota Supreme Court unless the court wishes to exercise its
discretion under AEDPA and dismiss Alex’s claims on the merits.
2. Whether the court should exercise it discretion to consider the merits and dismiss the petition
Respondent also argues that Alex’s petition is subject to dismissal on the merits. The court does have the discretion under 28 U.S.C. § 2254(b)(2) to consider Alex’s petition on the merits notwithstanding his failure to exhaust available state-court remedies, but only if the court believes the petition should be denied.
What follows is a preliminary review of Alex’s principal due process claim. The ultimate conclusion is that Alex has raised a serious, non-frivolous due process claim the proper resolution of which may require the gathering of additional facts and possibly an evidentiary hearing. For these reasons, it is recommended that the court not exercise its discretion to consider the merits of Alex’s claims and that he be required to first exhaust any available remedies before the North Dakota Supreme Court.
One of the due process requirements established by Wolff is the right to advance written
notice of the disciplinary charges.
Wolff and its progeny have made clear that this notice must be
something more than a conclusory allegation of an administrative violation and that some notice of
the factual bases underlying the accusation must also be given. See, e.g., Wolff, 418 U.S. at 564;
Sira v. Morton, 380 F.3d 57, 70-72 (2nd Cir. 2004); Northern v. Hanks, 326 F.3d 909, 910 (7th Cir.
2003); Freitas v. Augur, 837 F.2d 806, 809 (8th Cir. 1988); see Jensen v. Satran, 332 N.W.2d 222,
228 (N.D. 1983) (concluding that the factual information contained in the incident report in that case
was sufficient to allow the prisoner to prepare a defense). Recently, the Supreme Court in Wilkinson
v. Austin emphasized, “For more than a century the central meaning of procedural due process has
been clear: ‘Parties whose rights are to be affected are entitled to be heard; and in order that they
enjoy that right they must first be notified.’” 545 U.S. 209,125 S.Ct. 2384, 2396 (2005)(quoting
Fuentes v. Shevin, 407 U.S. 67, 80 (1972)).
On the other hand, due process in this context does not require that all of the evidence against the prisoner be disclosed prior to the hearing. Rather, the ultimate test of the adequacy of the pre-hearing disclosure is whether it provides the prisoner with a meaningful opportunity to marshal the facts and prepare a defense. See, e.g., Wolff v. McDonnell, 418 U.S. at 559-564; Sira v. Morton, 380 F.3d at 72; Freitas v. Augur, 837 F.2d at 809.
Further, prison officials have the right to withhold evidence from the prisoner when there is a reasonable justification for doing so, most commonly when disclosure would create a risk of violence or retaliation against inmates or staff. Sira v. Morton, 380 F.3d at 72; Freitas v. Augur, 837 F.2d at 809; see Ponte v. Real, 471 U.S. 491 498-499 (1971). And, while a court should give substantial deference to judgments made by prison officials regarding institutional security and the need to withhold evidence in particular cases, there are limits upon the discretion that prison officials can exercise in this area and “prison officials who decide to circumscribe inmates’ procedural rights at disciplinary hearings must offer a reasonable justification for their actions, if not contemporaneously, then when challenged in a court action.” Sira v. Morton, 380 F.3d at 75.
In this case, the only thing that appears to have been disclosed to Alex prior to the reconvened hearing with respect to the gang charge (at least based upon the record presently before the court) is the bare allegation of involvement in gang activity without any of the underlying particulars, such as the identity of the gang, the time period of alleged involvement, or any summary of the acts alleged to constitute gang activity or membership. In particular, the primary evidence relied upon by Respondent in upholding the Committee’ conclusion that Alex was guilty of the gang charge does not appear to have been disclosed to Alex in advance of the reconvened hearing, i.e., his admission and the photographs.
There may be cases in which prison officials are justified in withholding virtually all of the evidence against a prisoner on grounds of institutional security with the ultimate protection of due process rights being the opportunity to have this confidential information later reviewed in camera by the court. In fact, in a recent action involving another prisoner, this court concluded, based upon the adoption of a report and recommendation of the undersigned, that prison officials were justified in not disclosing most of the evidence relied upon to find the prisoner guilty of the disciplinary violation in that case based on grounds of institutional security and the need to protect an ongoing investigation as to the use of drugs at the prison. See Schultz v. Schuetzle, Case No. 1:05-cv-092.
In this case, however, even giving Respondent the benefit of the doubt with respect to the photographs, it is difficult to understand what safety or security concerns would justify not providing Alex with advance notice of the claimed admission, particularly given that not only the admission, but also the identify of Lt. Radenz, were disclosed in the Committee’s written decision immediately following the hearing.
Respondent argues Alex should have attended the reconvened hearing, but there is no
indication the admission or any of the other confidential information would have been disclosed at
that time, particularly since it had not been disclosed at the earlier hearing that Alex attended.
Moreover, even assuming he would have been advised of the admission during the hearing, it is not
clear this would have afforded him sufficient opportunity to make a meaningful response, including
requesting that witnesses be called, such as, Lt Radenz, who Alex believed either fabricated the
admission or misunderstood what he had been told. It is precisely because of these kinds of concerns
that cases have suggested that disclosure at the hearing may be too late. See, e.g., Wolff v.
McDonnell, 418 U.S. at 454; Sira v. Morton, 380 F.3d at 70-72.
Finally, Respondent argues that Alex’s admission satisfies the “some evidence” standard set
forth in Superintendent v. Hill, 472 U.S. 445 (1985); hence, the court need not concern itself with
any of Alex’s claims of constitutional violation. However, based on the authority cited above, it
does not appear the cases have gone so far as to conclude that satisfaction of the “some evidence”
standard trumps a violation of the initial notice requirement of Wolff, at least when prison officials
do not have a reasonable justification for withholding the information.
Upon examination of the record before the court, Alex has raised a serious, non-frivolous
issue with respect to whether the prison officials complied with the requirements of Wolff v.
McDonnell, and its progeny, in terms of the initial disclosure of information to him regarding the
charge for which the discipline ultimately was imposed.
Further, the record before the court may
not be sufficient to properly resolve this claim. Consequently, given the strong preference under
AEDPA for giving state courts the first opportunity to consider possible constitutional deficiencies
and to make the necessary record, it is recommended that the court not proceed at this time to
consider the merits pursuant to § 2254(b)(2).
3. Alex’s petition should be stayed pending state-court exhaustion of his claims rather than dismissed
Respondent requests that this matter be dismissed without prejudice for failure to exhaust state-court remedies. However, if this matter is dismissed, there is a good possibility that it may be time-barred under AEDPA before Alex could return to this court following exhaustion of any remaining state-court remedies.
Although it may still be an open question in the Eighth Circuit, most of the circuits that have addressed the issue have held that AEDPA’s one-year limitation period applies to § 2254 petitions challenging prison administrative decisions. E.g. Dulworth v. Evans, 442 F.3d 1265, 1267 (10th Cir. 2006) (noting that the Second, Fourth, Fifth, and Ninth circuits have applied the one-year limitation period, but the Seventh Circuit has held it does not apply in this context). And, in this case, the time spent by Alex in prosecuting his present federal habeas corpus petition does not toll the running of the one-year limitation period. Duncan v. Walker, 533 U.S. 167 (2000).
Recently, the Supreme Court in Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528 (2005) held that a federal district court may employ a “stay-and-abeyance” procedure when there is a danger that the limitation period will run prior to the prisoner being able to return to federal court. Id. at 1534-36. However, the Court stated that time limits should be imposed so that the procedure is not abused. The Court stated that, typically, the limits should be 30 days to file in state court and then 30 days from when the state-court remedies are exhausted to indicate the petitioner is ready to resume the proceedings. Id. Also, the Court indicated this procedure should be employed only in cases when the prisoner has demonstrated good cause for initially not pursuing the state remedy. Id.
In this case, Alex did not completely bypass state remedies; he filed for habeas relief in state district court and was denied. More importantly, his argument that further exhaustion of state remedies would be futile is by no means frivolous given the conclusions reached by the state district court in his case and in the recent case of Schultz v. Schuetzle, as previously discussed. In fact, even though it appears relief may still be available before the North Dakota Supreme Court, this is by no means certain and Alex may ultimately be proven correct in terms of his futility argument.
For these reasons, there is good cause for not penalizing Alex by dismissing this action with the most likely result being that he could never return to exercise his federal habeas rights. Consequently, it is recommended that Alex’s petition be stayed and held in abeyance pending his timely petitioning the North Dakota Supreme Court for habeas relief and returning to this court once any state-court remedies made available by the North Dakota Supreme Court are exhausted.
Finally, while it would be futile to require Alex to return first to state district court given that court’s denial of his constitutional claims, it is conceivable the North Dakota Supreme Court could require Alex to return to state district court for further proceedings before taking any action. In the event that should occur, Alex should be required to exhaust those remedies, as well as any remedies before the North Dakota Supreme Court that might be available thereafter.
III. RECOMMENDATION
For the reasons set forth above, it is hereby RECOMMENDED that:
1. Respondent’s Motion to Dismiss (Docket No. 6) be DENIED to the extent it requests dismissal of Alex’s Petition, but GRANTED to the extent that Respondent requests that Alex be required to exhaust any remedies made available by the North Dakota Supreme Court.
2. Alex’s Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Docket No. 1) be stayed and held in abeyance subject to the following conditions:
a. Alex filing a petition for habeas corpus relief with the North Dakota Supreme Court within 30 days of the court adopting this recommendation setting forth the claims that are made in the petition to this court and Alex exhausting any remedies made available by the North Dakota Supreme Court, including any requirement by the North Dakota Supreme Court that Alex return to state district court followed by exhaustion of any remedies thereafter available before the North Dakota Supreme Court.
b. Within 30 days of Alex having completed the exhaustion of any remedies made available by the state courts, Respondent filing a motion to lift the stay or otherwise notifying the court that exhaustion has been completed and that he desires to proceed with his petition in this court.
3. Any failure to comply with the foregoing requirements will be grounds for dismissal of Alex’s petition to this court.
NOTICE OF RIGHT TO FILE OBJECTIONS
Pursuant to Local Rule 72.1(E)(4), any party may object to this recommendation within ten (10) days after being served with a copy of this Report and Recommendation. Failure to file appropriate objections may result in the recommended action being taken.
Dated this 5th day of June, 2006.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr.
United States Magistrate Judge