United States District Court, W.D. Virginia, Roanoke Division
EUGENE V. SMALLS, SR., Petitioner,
BARRY KANODE, WARDEN, Respondent.
V. Smalls, Sr., Pro Se Petitioner.
Maughn, Assistant Attorney General, Office of the Attorney
General, Richmond, Virginia, for Respondent.
P. JONES UNITED STATES DISTRICT JUDGE.
Petition for a Writ of Habeas Corpus under 28 U.S.C. §
2254, Eugene V. Smalls, Sr., a Virginia inmate proceeding pro
se contends that the length of his confinement was adversely
affected by an unconstitutional prison disciplinary
proceeding. Upon review of the record, I conclude that the
respondent's Motion to Dismiss must be granted.
is serving a lengthy prison term imposed for violations of
Virginia law that occurred in December of 1995. In the summer of
2017, Smalls was incarcerated at River North Correctional
Center, a facility operated by the VDOC. On July 10, 2017,
Officer Alvarez placed a disciplinary charge against Smalls
for Aggravated Assault Upon an Offender, Offense Code 105B.
The charge was served on Smalls later that same day. The
Disciplinary Offense Report (“DOR”) described the
offense as follows:
On July 5, 2017 at 2[:]43am Captain Tincher emailed the
Investigator's Office to let us know that an offender had
been assaulted the previous afternoon. A review of the camera
system was performed by Captain Tincher and Sergeant Wolfe
and it was determined that an assault had taken place. A
review of the footage by Intel shows that on 7/4/2017, at
about 4:16pm, Small[s] 1153228 and Cheatam 1000791 were
talking next to Phone A3-1. At 4:17:35pm Small[s], having
just removed the right leg of his wheel chair, struck Cheatam
on the left side of his face with the leg of the wheel chair.
Cheatam did not hit Small[s] back. Cheatam can be seen
staggering away from phone area.
Supp. Mot. Dismiss Stapleton Aff. Enclosure A, ECF No. 9-1.
Smalls declined a penalty offer and was placed on prehearing
preparation for a disciplinary hearing, Smalls was advised of
his right to request witnesses and documentary evidence. He
submitted forms requesting medical records to show that his
right hand was broken and asking to view the camera footage
of the July 4, 2017, incident. These requests were denied
because they were not timely received by the hearing officer.
17, 2017, a hearing officer conducted Smalls'
disciplinary hearing on the assault charge. MacVean stated on
the record that Smalls' requests for medical records and
video access were denied as untimely received and as not
relevant. Alvarez, as the reporting officer, was
present and repeated verbally the events stated on the DOR.
Alvarez related his interview with the victim. Inmate Cheatam
stated that he had been talking to Smalls about use of the
telephone, and when Cheatam started to make a call to his
grandmother, Smalls struck him with the chair. Alvarez stated
that the surveillance camera footage depicted Smalls removing
the leg of the wheelchair, holding it in his right hand and
using it to strike Cheatam on the left side of his face, and
then placing it back on the chair, as Cheatam put his hand to
his face and staggered away from the phone.
gave Smalls the opportunity to question Alvarez and to make a
statement in his own defense. Smalls denied using part of his
wheelchair to strike Cheatam. He also claimed that the
incident did not occur as Cheatam had described it to Alvarez
and asked for mercy.
paused the tape for several minutes to review the video
footage. Back on the record, MacVean stated that the video
footage depicted the events as described by Alvarez. Based on
the video footage, MacVean found Smalls guilty of the offense
charged and imposed penalties of 30 days in disciplinary
segregation and loss of 27 days of good conduct
submitted a Level I appeal to the Warden, raising claims
similar to those presented in his habeas petition. In a
memorandum dated August 16, 2017, the Warden found no
procedural errors to justify overturning the conviction. He
also noted that in his opinion, the video footage clearly
showed that Smalls had assaulted Cheatam as charged. Smalls
then submitted a Level II appeal to the regional
administrator, who reviewed the documentation and recording
of the hearing and upheld the conviction by letter dated
November 21, 2017.
arrest warrant for misdemeanor assault and battery of Cheatam
was issued against Smalls in the General District Court for
Grayson County. In September of 2018, the court granted the
prosecutor's motion for a nolle prosequi. Smalls contends
that the prosecutor made this motion after viewing the video