                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4421-18T1

BLAINE HOLLEY,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
____________________________

                    Submitted May 18, 2020 – Decided July 7, 2020

                    Before Judges Ostrer and Susswein.

                    On appeal from the New Jersey Department of
                    Corrections.

                    Blaine Holley, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Sookie Bae-Park, Assistant Attorney
                    General, of counsel; Christopher Josephson, Deputy
                    Attorney General, on the brief).

PER CURIAM
      Petitioner, Blaine Holley, appeals from a final agency decision by the

Department of Corrections (DOC) imposing disciplinary sanctions for fighting

with another inmate during a recreation period. Petitioner pleaded guilty to the

infraction. The disciplinary hearing officer also took testimony and found

petitioner guilty. The hearing officer imposed ninety-one days of administrative

segregation, a ninety-one day loss of commutation time, and a ninety-one day

loss of recreation privileges (LORP). Petitioner's conviction and sanctions were

upheld on administrative appeal. After carefully reviewing the record in view

of the legal principles governing this appeal, we affirm the administrative

conviction and the sanctions that were imposed.

                                       I.

      The facts adduced at the disciplinary hearing show that petitioner and

another inmate began arguing over a phone during a recreation period. The

argument escalated to a physical altercation during which both inmates

exchanged close-fisted blows. Corrections Officer Gallegos observed the fight

and sounded an alarm. The Officer ordered petitioner and the other inmate to

stop fighting. They both ignored the command and continued to fight until a

response team arrived.




                                                                        A-4421-18T1
                                       2
      Petitioner was charged with committing a prohibited act *.004, fighting

with another person, in violation of N.J.A.C. 10A:4-4.1(a)(2)(i). Petitioner was

represented at the hearing by counsel substitute.      Petitioner pled guilty to

fighting and did not argue that he had acted in self-defense. He was offered but

declined the opportunity to call witnesses on his behalf at the hearing.

      Counsel substitute requested leniency, citing the fact that petitioner did

not have any disciplinary infractions in the last six years of incarceration. The

hearing officer did in fact extend a measure of leniency by imposing only half

the period of LORP that might have been imposed under N.J.A.C. 10A:4-

5.1(s)(8). The hearing officer determined that the sanctions that were imposed

were necessary to deter fighting.

                                       II.

      Petitioner raises the following points for our consideration:

      POINT I

            REQUEST TO VACATE ADJUDICATION MUST BE
            GRANTED, WHERE THE HEARING OFFICER
            FAILED TO TAKE INTO CONSIDERATION
            APPELLANT'S CLAIM THAT APPELLANT WAS
            DEFENDING HIMSELF.

      POINT II

            APPELLANT WAS NOT PROVIDED                        WITH
            COMPETENT COUNSEL SUBSTITUT[E].

                                                                           A-4421-18T1
                                        3
                                      III.

      We begin our analysis by acknowledging the legal principles we must

apply, including the deference we owe to administrative agencies. "The judicial

capacity to review administrative agency decisions is limited." Brady v. Bd. of

Review, 152 N.J. 197, 210 (1997) (citing Pub. Serv. Elec. v. N.J. Dep't of Envtl.

Prot., 101 N.J. 95, 103 (1985)).      We defer to administrative agencies in

recognition of their "expertise and superior knowledge of a particular field."

Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992) (citations

omitted).   Accordingly, we will disturb the agency's decision only if we

determine it is "arbitrary, capricious or unreasonable," or is unsupported "by

substantial credible evidence in the record as a whole." Henry v. Rahway State

Prison, 81 N.J. 571, 580 (1980) (citing Campbell v. Dep't of Civil Serv., 39 N.J.

556, 562 (1963)).

      The deference we afford to DOC's decision making is supported by DOC's

important mission to safeguard prison safety and security. See Blanchard v. N.J.

Dep't of Corr., 461 N.J. Super. 231, 238–39 (App. Div. 2019) (admonishing

reviewing court to "not substitute its own judgment for the agency's" (quoting

In re Stallworth, 208 N.J. 182, 194 (2011))). We note that safety and security

of the institution is directly threatened when inmates engage in fighting,

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                                       4
especially when, as in this case, the altercation requires the intervention of a

response team.

                                        IV.

      The DOC urges us to disregard petitioner's claims because he failed to

raise them at the disciplinary hearing. We are not required to consider an issue

raised for the first time on appeal, provided there was an opportunity to present

the issue, unless it goes to the jurisdiction of the trial court or concerns matters

of substantial public interest. State v. Robinson, 200 N.J. 1, 20 (2009) (citing

Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Although we do not

believe the arguments petitioner presents to us concern a matter of substantial

public interest, we choose to consider petitioner's claims on the merits, applying

the plain-error standard of review. R. 2:10-2.

      To a large extent, petitioner's claims rest on the assumption that the fight

was recorded on surveillance video. He argues, for example, that such video

would show that he acted in self-defense. However, the current record does not

include a video recording or video summary of the incident.

      Petitioner contends his counsel substitute was ineffective by not

demanding production of any surveillance video, by not raising a self-defense




                                                                            A-4421-18T1
                                         5
claim,1 and by allowing the hearing officer to impose a LORP sanction longer

than the maximum period authorized by regulation. We reject these contentions.

      An inmate is not entitled to "formal retained or assigned counsel," Avant

v. Clifford, 67 N.J. 496, 537 (1975), let alone the effective assistance of such

counsel.   See generally Strickland v. Washington, 466 U.S. 668 (1984)

(describing the standard for effective assistance of counsel guaranteed by the

Sixth Amendment). Rather, an inmate is entitled to a counsel substitute. Avant,

67 N.J. at 537. Although that person must be trained as a paralegal, 2 a counsel

substitute cannot be held to the standards of knowledge or diligence of an

attorney. Furthermore, a disciplinary decision should be disturbed only if a

counsel substitute's failure to provide a minimal level of competence causes the



1
   Although it is unclear whether a video of this incident exists, we believe
petitioner's self-defense claim would fail. N.J.A.C. 10A:4-9.13 provides that
the inmate claiming self-defense needs to provide evidence that "[t]he inmate
had no reasonable opportunity or alternative to avoid the use of force, such as,
by retreat or alerting correctional facility staff," among other things. Here, the
petitioner ignored orders from a corrections officer to stop fighting,
necessitating a response team. Even if a video were to show petitioner was not
the initial aggressor, the same video would show "a reasonable opportunity or
alternative to avoid the use of force" once the corrections staff arrived and
ordered the inmates to stop fighting.
2
  N.J.A.C. 10A:6-2.13 and N.J.A.C. 10A:6-2.14 provide guidelines concerning
the required training to become an inmate paralegal and for general provisions
regarding legal assistance for inmates.
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                                        6
inmate prejudice. Cf. Strickland, 466 U.S. at 687 (requiring a showing of

prejudice as one of two essential elements of an ineffective assistance of counsel

claim).

      Without charting the precise boundaries of the minimal standard of

competence of a counsel substitute, we conclude in this case that petitioner was

not deprived of his rights. It was a reasonable defense strategy for counsel

substitute to focus on seeking leniency based on petitioner's exemplary

institutional record. Petitioner has failed to show that pursuit of that defense

strategy—which was at least partially effective—was outside the range of

competence that should be expected of a counsel substitute.

      Furthermore, petitioner's contention that imposition of the ninety-one-day

LORP is not authorized under DOC regulations is incorrect.             Because the

fighting occurred during a recreation period, N.J.A.C. 10A:4-5.1(s)(8) allows

for LORP of up to 180 days.

      We conclude there was no abuse of discretion in upholding the hearing

officer's decision on the basis of substantial evidence and petitioner's guilty plea.

To the extent we have not addressed them, any additional arguments raised by

petitioner lack sufficient merit to warrant discussion in this opinion. R. 2:11-

3(e)(1)(E).


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Affirmed.




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