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Smalls v. Kanode

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

September 9, 2019

EUGENE V. SMALLS, SR., Petitioner,
v.
BARRY KANODE, WARDEN, Respondent.

          Eugene V. Smalls, Sr., Pro Se Petitioner.

          Laura Maughn, Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Respondent.

          OPINION

          JAMES P. JONES UNITED STATES DISTRICT JUDGE.

         In this 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.

         I.

         Smalls is serving a lengthy prison term imposed for violations of Virginia law that occurred in December of 1995.[1] 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.

         Mem. Supp. Mot. Dismiss Stapleton Aff. Enclosure A, ECF No. 9-1. Smalls declined a penalty offer and was placed on prehearing detention.

         In 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.

         On July 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.[2] 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.

         MacVean 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.

         MacVean 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 time.[3]

         Smalls 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.

         An 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 ...


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