United States District Court, E.D. Virginia, Norfolk Division
WAYNE D. BUTTS, Petitioner,
HAROLD W. CLARKE, Director, Virginia Department of Corrections, Respondent.
MARK S. DAVIS, District Judge.
This matter is before the Court on Petitioner Wayne D. Butts' ("Petitioner") Petition for a Writ of Habeas Corpus, filed pursuant 28 U.S.C. § 2254. Petitioner alleges violations of his due process rights pertaining to an institutional conviction he received during incarceration for fighting with another inmate.
The matter was referred to a United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b) (1)(B) and (C), Rule 72(b) of the Federal Rules of Civil Procedure, and Rule 72 of the Rules of the United States District Court for the Eastern District of Virginia for report and recommendation. The report of the Magistrate Judge was filed on February 27, 2013, recommending dismissal of the petition. By copy of the report, each party was advised of his right to file written objections to the findings and recommendations made by the Magistrate Judge. On March 18, 2013, the Court received Petitioner's Objections to the Magistrate Judge's Report and Recommendation. ECF No. 40. Petitioner appeared, with counsel, for an evidentiary hearing before the Court on October 22, 2013. After conducting a de novo review of the portions of the Magistrate Judge's Report and Recommendation to which Petitioner objects, pursuant to 28 U.S.C. 636(b)(1)(C), the Court GRANTS Petitioner's petition.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On March 3, 2011, while incarcerated at the Deep Meadow Correctional Center, Petitioner reported to Sergeant C.L. Moore that he had engaged in a physical altercation with another inmate on the previous evening. Petitioner told Sergeant Moore that the other inmate "kept coming in my cut and messing with me, I got tired of it and punched him in the face." Disciplinary Offense Report at 1, ECF No. 1-4. Petitioner was cited for violating Virginia Department of Corrections ("VDOC") Operating Procedure § 861.1(V)(B)(218), which prohibits "(flighting with any person." VDOC Operating Procedure at 13, ECF No. 19-3. The next day, a Disciplinary Offense Report was served on Petitioner. The Serving Officer read the Disciplinary Offense Report to Petitioner, who had been placed in handcuffs, and recorded Petitioner's answers to the questions listed on the Report. The first three questions on the report appeared as follows:
1. DO YOU REQUEST A STAFF OR OFFENDER ADVISOR TO ASSIST YOU AT THE HEARING?  Yes  No Advisor Name: _____________________  Refused to Respond 2. DO YOU WISH TO REQUEST WITNESSES?  Yes  No  Request the services of an advisor?  Advisor provided  Refused to Respond 3. DO YOU WISH TO REQUEST DOCUMENTARY EVIDENCE?  Request the services of an advisor?  Advisor provided  Refused to Respond
Disciplinary Offense Report at 1, ECF No. 1-4. The Serving Officer checked "Yes" for all three questions, indicating that Petitioner "request[ed] a staff or offender advisor to assist [him] at the hearing, " that he "wish[ed] to request witnesses, " and that he "wish[ed] to request documentary evidence." Id . The Serving Officer did not check any of the boxes under questions two and three, indicating whether Petitioner requested an advisor and whether an advisor was provided. Id . After the Serving Officer read the rest of the Disciplinary Offense Report to Petitioner and recorded Petitioner's responses to the remaining questions, Petitioner signed the report, affirming that he had "been informed of the charges against [him], and advised of [his] rights at the Disciplinary Hearing, " which was scheduled for March 11, 2011. Id . The Serving Officer also signed the report, affirming that Petitioner was "provided copy of report" on March 4, 2011 at 2:00 p.m. Id . Petitioner was then taken to a segregation cell at nearby Powhatan Correctional Center ("Powhatan"), where he remained until his disciplinary hearing on March 9, 2011. Petitioner was not assigned an advisor either before or at his disciplinary hearing.
Inmate Hearing Officer Blackwell presided over Petitioner's disciplinary hearing, where the following exchange occurred:
Blackwell: I indicate on the report that you do not wish to have an advisor, right?
Petitioner: Yes sir, that's correct.
Blackwell: I indicate on the report that you do not wish to have any witnesses, right?
Petitioner: I really don't think I have any. I got -
Blackwell: - Well, you didn't, you didn't list no name to me, so it's too late at this time.
Blackwell: You had to present names to me.
Petitioner: I don't know anybody's name.
Blackwell: You didn't - you did not request any documentary evidence, right?
Petitioner: Yeah, the uh... I requested the video. The video.
Blackwell: You have to send a form to me, you didn't send no form to me.
Petitioner: Well, that's what I told them at the time and I -
Blackwell: You told them but you didn't get a form from these guys here, these officers [unintelligible] work down here and send it to me.
Petitioner: I don't know that. Nobody told me.
Disciplinary Hr'g Audio at 2:04 to 2:52. Officer Blackwell asked Petitioner if he had received a copy of the charge against him. Petitioner answered, "Yes, sir." Id. at 3:27 to 3:30. After Petitioner explained his version of events surrounding the altercation, Officer Blackwell found Petitioner guilty of fighting with another person and sentenced him to seven days in isolation. At a subsequent hearing before the Institutional Classification Authority ("ICA"), Petitioner's Good Time/Earned Sentence Credit earning level was reduced from Class Level I to Class Level II, meaning that, instead of earning 4.5 days of Earned Sentence Credit for every 30 days served in Class Level I, Petitioner was only able to earn 3 ...