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Wall v. Kiser

United States District Court, W.D. Virginia, Roanoke Division

March 31, 2019

GARY WALL, Petitioner,
v.
WARDEN JEFFREY KISER, Respondent.

          MEMORANDUM OPINION

          ELIZABETH K. DILLON UNITED STATES DISTRICT JUDGE.

         Petitioner Gary Wall, a Virginia inmate proceeding pro se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging institutional disciplinary convictions he received while confined at Red Onion State Prison (Red Onion) on August 14, 2015. Wall was transferred to Wallens Ridge State Prison (Wallens Ridge) on August 17, 2015, and his charges were heard there. Wall complains of his loss of good conduct time and alleges due process violations in the disciplinary proceedings. This matter is before the court on respondent's amended motion to dismiss and Wall's response in opposition.[1] Having considered the record, the court will grant respondent's amended motion to dismiss.

         I. BACKGROUND

         On August 14, 2015, Wall was involved in an “altercation” at Red Onion, involving him, Officer Hicks, and Officer Rasnick. Both officers and Wall were injured.[2] Following the incident, Wall was charged with several disciplinary infractions. Two of these disciplinary infractions, one for aggravated assault on Officer Hicks and the other for aggravated assault on Officer Rasnick, resulted in the loss of good conduct time and are the subject of this habeas corpus proceeding. For each of the two charges, Wall was given notice of the charges in advance of his hearings. (Pet., Dkt. No. 1, 16; Disciplinary Offense Rep., Dkt. No. 1, 34, 56, 93-95.)

         With regard to the charge concerning Officer Hicks, Wall requested an advisor, a witness, documentary evidence, and to appear at the hearing. Wall was assigned CIRC Pendleton as an advisor to assist at his hearing, and Lt. King served as Wall's advisor concerning his witnesses and documentary evidence. As a witness, Wall requested a control booth officer. The officer submitted a statement, indicating that he did not see the incident. Thereafter, Hearing Officer Hensley denied Wall's request for a witness after determining that the witness's statement was not relevant to the offense. As documentary evidence, Wall requested three rapid-eye security videos and Virginia Department of Corrections (VDOC) policy, memos, or directives governing inmate movement. The Hearing Officer denied his requests for the evidence after determining that the items requested were restricted for security reasons or were not relevant.[3]

         A hearing was held on September 8, 2015. Wall was present, and Officer Hicks, the reporting officer, testified. At the hearing, Officer Hicks stated that when he arrived at the vestibule door, he ordered Wall to get on the wall. When Officer Hicks reached for Wall, Wall spun around and swung at Officer Hicks, but missed. Officer Hicks said that Wall would have “cleaned [his] clock” if the blow had connected. Officer Hicks grabbed Wall around the waist, and the two fell to the ground. Officer Hicks said that Officer Rasnick tried to gain control of Wall's feet in order to subdue him. Officer Hicks had Wall's left arm and was attempting to find the right arm when Wall struck him in the eye. Wall stated that he and Officers Hicks and Rasnick were walking toward the vestibule door with Wall in front and the two officers behind him. When they arrived at the door, Wall turned around and Officer Rasnick came forward and grabbed Wall's arm and a scuffle ensued. Wall stated that Officer Rasnick swung at him, striking him on his left eye. Officer Hicks came in to assist Officer Rasnick. Wall testified that at no time did Officer Hicks ever tell him to present himself to be handcuffed. Wall also testified that while he and the two officers were on the floor, Wall rolled to his side to avoid the blows and collided with Officer Hicks. Wall stated that he did not attempt to throw, or actually throw, a punch at either officer. When the Hearing Officer asked Wall why Officer Rasnick assaulted him “out of the blue, ” Wall explained that Officer Rasnick was in an agitated state because they had been cursing at each other, back and forth. (Disciplinary Offense Rep., Dkt. No. 1, 56, 63; Witness Req., Dkt. No. 1, 60; Req. for Doc. Evid., Dkt. No. 1, 58-59; Memo., Dkt. No. 1, 67-73.)

         During the hearing, Wall requested that the video footage be reviewed, and the Hearing Officer told Wall that he would need to “convince him” that it was necessary. Wall asked if the security camera would show if the blow that struck the officer in the face had been intentional or not, since he had been charged with aggravated assault. The Hearing Officer commented that neither Officer Hicks nor the video would be able to make that determination. However, the Hearing Officer asked Officer Hicks if he thought the blow was intentional, and Officer Hicks stated that he had been trying to restrain Wall and any activity from Wall would have been intentional, in his opinion. The Hearing Officer ultimately determined that the video was not necessary because Officer Hicks' injuries, an eye injury requiring three stitches and a fractured hand, were consistent with an assault upon an officer. Further, the reporting officer, Officer Hicks, testified at the hearing, and Wall was given the opportunity to question him. (Memo., Dkt. No. 1, 67, 71-72.)

         Hearing Officer Hensley found Officer Hicks' testimony more credible and, consequently, found Wall guilty of the charge. As a penalty, Wall lost 180 days of good conduct time. The conviction and penalty were reviewed and approved by Captain Tate on September 8, 2015. Wall received written notice of the Hearing Officer's determination, penalty, and reasoning on September 11, 2015. Wall appealed, and the Warden upheld the conviction and penalty. Wall further appealed, and the Regional Administrator also upheld the conviction and penalty. (Disciplinary Offense Rep., Dkt. No. 1, 63; Certification, Dkt. No. 24-3, 86; Memo., Dkt. No. 1, 66-73; Letter, Dkt. No. 1, 76-77.)

         With regard to the charge concerning Officer Rasnick, Wall requested an advisor, documentary evidence, and to appear at the hearing.[4] Wall was assigned CIRC Rose as an advisor to assist at his hearing. As documentary evidence, Wall requested the rapid-eye security videos and interview statements of both officers from an interview with Captain Still. On August 18, 2015, a Hearing Officer denied Wall's requests on the basis that they were restricted from inmate access. (Disciplinary Offense Rep., Dkt. No. 1, 34; Req. Doc. Evid., Dkt. No. 1, 36-37.)

         A hearing was held on August 25, 2015, where Wall was present and Captain Still, the reporting officer, testified.[5] Captain Still testified that he had reviewed the rapid-eye videos and saw Wall take a swing at Officer Rasnick when Officer Rasnick attempted to handcuff Wall. Officer Hicks then came to aid Officer Rasnick, and all three of them fell to the floor while Wall continued to fight the officers. Officer Rasnick sustained injuries to his knee and eye. Wall did not say much at the hearing because he “seemed concerned” about a “street charge” and that his testimony at the hearing might be used against him in the criminal case. During the hearing, Wall requested that the video footage be reviewed, and Hearing Officer Franks determined that it was not necessary because Captain Still had reviewed the videos and testified as to what the video showed, and Wall had the opportunity to question him. (Disciplinary Offense Rep., Dkt. No. 1, 38; Memo., Dkt. No. 1, 44-50.)

         Ultimately, Hearing Officer Franks found Captain Still's testimony credible and, consequently, found Wall guilty of the charge. As a penalty, Wall lost 90 days of good conduct time. The conviction and penalty were reviewed and approved by Captain Cope on August 27, 2015. Wall received written notice of the Hearing Officer's determination, penalty, and reasoning on September 2, 2015. Wall appealed, and the Warden upheld the conviction and penalty. Wall further appealed, and the Regional Administrator also upheld the conviction and penalty. (Disciplinary Offense Rep., Dkt. No. 1, 38; Certification, Dkt. No. 24-3, 86; Memo., Dkt. No. 1, 43-50; Letter, Dkt. No. 1, 55.)

         Wall filed the instant habeas petition on November 8, 2016. Wall alleges that: (1) he is actually innocent, in light of “newly-discovered reliable” evidence; (2) the disciplinary proceedings violated his due process rights because he was not allowed to present evidence or call witnesses; (3) the disciplinary proceedings violated his due process rights because the hearing officer was not impartial; (4) Wallens Ridge personnel did not have subject matter jurisdiction over his alleged violations that occurred at Red Onion; and (5) his due process rights were violated when he was denied an advisor for two of his disciplinary hearings. (Pet., Dkt. No. 1, 5, 15.)

         II. DISCUSSION

         The Due Process Clause of the Fourteenth Amendment prohibits a state from depriving “any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “To state a procedural due process violation, a plaintiff must (1) identify a protected liberty or property interest and (2) demonstrate deprivation of that interest without due process of law.” Prieto v. Clarke, 780 F.3d 245, 248 (4th Cir. 2015). “A liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word ‘liberty,' or it may arise from an expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Federal habeas courts recognize a protected liberty interest in good conduct time earned, requiring ...


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