     Case: 12-30227     Document: 00512035797         Page: 1     Date Filed: 10/29/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 29, 2012
                                     No. 12-30227
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

EDDIE MILTON GAREY,

                                                  Petitioner - Appellant

v.

WARDEN SHERROD,

                                                  Respondent - Appellee


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:11-CV-914


Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
        Rehearing is granted, the previous opinion is withdrawn, and the following
is substituted.
        Proceeding pro se and in forma pauperis, Eddie Milton Garey, federal
prisoner # 91876-020, contests the with-prejudice dismissal of his 28 U.S.C.
§ 2241 petition challenging three disciplinary convictions and the resulting loss
of good-time credits. The district court denied relief pursuant to the magistrate



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 12-30227

judge’s report and recommendation and subsequently denied Garey’s post-
judgment motions.
      Garey challenges, on due process grounds, the disciplinary procedures
used to find him guilty of: possession of a weapon or unauthorized item inside
the prison (incident report # 1770777); assault/fighting (incident report
# 1988963); and fighting (incident report # 2080824).
      Because federal prisoners have a liberty interest in their accumulated
good-time credits, Henson v. U.S. Bureau of Prisons, 213 F.3d 897, 898 (5th Cir.
2000), the Fifth Amendment’s Due Process Clause entitled Garey to: adequate
notice of the alleged violation; an opportunity to present evidence; written
findings in support of the ruling; and the requirement that upon review, some
evidence support the ruling. Superintendent, Massachusetts Correctional
Institution v. Hill, 472 U.S. 445 (1985); Wolff v. McDonnell, 418 U.S. 539, 563-65
(1974). Under the “some evidence” standard, there is no requirement to examine
the entire record,   assess independently witness credibility, or weigh the
evidence. Hill, 472 U.S. at 455. “[P]rison disciplinary proceedings will be
overturned only where there is no evidence whatsoever to support the decision
of the prison officials”. Reeves v. Pettcox, 19 F.3d 1060, 1062 (5th Cir. 1994).
Whether “some evidence” exists in the record to support prison-disciplinary
findings is reviewed de novo. Teague v. Quarterman, 482 F.3d 769, 773 (5th Cir.
2007).
      Garey contends officials violated prison rules by notifying him more than
24 hours after discovery of a weapon in his cell, and by holding a hearing more
than three days after that discovery. An inmate charged with committing a
prohibited act is entitled to notice and hearing, “ordinarily” within 24 hours and
three days, respectively. 28 C.F.R. § 541.15(a) & (b) (2008).
      The magistrate judge recommended that these temporal requirements
were discretionary. Moreover, a prison’s “failure to follow its own procedural
regulations does not establish a violation of due process, because constitutional

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minima may nevertheless have been met”. Jackson v. Cain, 864 F.2d 1235, 1251
(5th Cir. 1989) (internal quotation marks and citation omitted). Garey fails to
show the record evidence supports a claim that he did not receive notice or an
opportunity to present evidence; nor does the record support that due process
was violated by the prison’s failure to follow any other procedural regulations.
In addition, Garey has not shown prejudice by the lack of notice within 24 hours
or by a hearing held more than three days after discovery of his prison-code
violation. E.g., Hallmark v. Johnson, 118 F.3d 1073, 1080 (5th Cir. 1997)
(prejudice flowing from constitutional violation a prerequisite to habeas relief).
      Garey challenges the magistrate judge’s application of the “some evidence”
standard. The disciplinary hearing officer provided written findings in support
of the ruling, and the magistrate judge recommended that the weapon found in
his cell constituted “some evidence” to support Garey’s disciplinary conviction.
Garey’s assertion that the disciplinary-hearing officer was required to find a
nexus between him and the unauthorized item is meritless, as “[t]he Federal
Constitution does not require evidence that logically precludes any conclusion
but the one reached by the disciplinary board”. Hill, 472 U.S. at 457.
      Garey claims a due process violation for being punished for behavior he
could not have known was prohibited or required, but he fails to identify the
prohibited or required behavior of which he was unaware. It appears from his
§ 2241 petition that Garey refers to the alleged requirement that a prisoner
search his cell for contraband before occupying it. He does not establish that
this is required, however, and a prisoner’s possession of a weapon obviously
constitutes an “act[] of clear disobedience” of which Garey was aware. Cf. Adams
v. Gunnell, 729 F.2d 362, 369 (5th Cir. 1984) (prisoners who signed a petition
could not have known such act constituted illegal or disobedient conduct).
      Regarding the second incident, Garey grabbed a food tray from an officer’s
hand and threw it at the officer’s feet. He was found guilty of fighting/assault
and was sanctioned with a 27-day loss of good-time credit.

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      Garey challenges the magistrate judge’s recommendation that he waived
his rights to call witnesses, present evidence, and select his counsel during the
disciplinary hearing on the assault/fighting charge.         Garey contends the
disciplinary-hearing officer induced his waiver by promising a finding of guilt
would not interfere with a then-approved transfer to a medium custody facility
in exchange for Garey’s signing the waiver forms. Because his transfer was
cancelled after he was found guilty, Garey asserts his waiver was involuntary.
      The transfer of a prisoner from one prison to another does not implicate
the Due Process Clause directly, Olim v. Wakinekona, 461 U.S. 238, 251 (1983);
and, absent special circumstances, an inmate does not have a right to counsel
during prison disciplinary hearings. Wolff, 418 U.S. at 570 (illiterate inmates
may have right to counsel). Garey has not shown he was entitled to staff
representation as a matter of due process. Further, Garey admits there is no
evidence in the record supporting the alleged promise to transfer in exchange for
his waiver of witness-presentation and counsel-representation rights. He fails
to demonstrate how the absence of witnesses and staff representation prejudiced
his defense. See Hallmark, 118 F.3d at 1080 (violation of rights must result in
prejudice). Accordingly, the disciplinary hearing and procedures complied with
established procedural requirements.
       For the third and final incident, Garey was charged with fighting after
allegedly being struck by another inmate, which resulted in a 27-day loss of
good-time credit.
      Garey asserts the district court erred in failing to rule on whether his self-
defense claim to this charge constituted a mitigating factor. He contends: the
disciplinary-hearing officer abused his discretion by imposing the 27-day good-
time credit sanction instead of a 14-day sanction; and a prison employee violated
his due process rights by refusing to provide sufficient postage to mail his appeal
(making his appeal untimely) and by refusing to provide him a staff memo
(indicating that the untimeliness was not his fault).

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      The evidence before the disciplinary-hearing officer – that Garey fought
with, and pursued, his alleged attacker – satisfies the “some evidence” standard
by supporting a finding that Garey did not act solely in self defense; it cannot be
said that “there is no evidence whatsoever to support the decision of the prison
officials.” Reeves, 19 F.3d at 1062. Therefore, the district court did not err in
adopting the magistrate judge’s recommendation that Garey’s due process rights
were not violated.
      Regarding Garey’s untimely appeal of this conviction, the evidence shows
his allegations of staff misconduct were referred for investigation. He does not
state whether that investigation was completed. Without information on the
outcome of the investigation, it is unclear whether this claim has been
exhausted.    Therefore, the claim is insufficiently briefed, and Garey has
abandoned it. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993) (appellant
must cite to authority or statutes to show why relief is proper).
      Garey asserts in conclusory fashion the district court erred in finding his
First Amendment and civil rights claims cannot be raised in a habeas
proceeding. He provides nothing further in the way of argument. The claim is
therefore insufficiently briefed and is abandoned. Id.
      Garey also asserts the district court failed to make specific findings of fact
and conclusions of law, and failed to identify and address the merits of his
claims.
      The magistrate judge provided the factual background for each of Garey’s
disciplinary convictions and a legal analysis for his claims, and those findings
and conclusions were sufficient for meaningful district court and appellate
review. FED. R. CIV. P. 52(a)(1) (court must find facts specially and state
conclusions of law separately); Ramirez v. Hofheinz, 619 F.2d 442, 445-46 (5th
Cir. 1980) (Rule 52(a) insures meaningful review on appeal). To the extent the




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district court did not address some of his claims, Garey has not shown these
unaddressed claims have merit.
     REHEARING       GRANTED;       PREVIOUS     OPINION      WITHDRAWN;
AFFIRMED.




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