                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


Thomas Talbert,
Petitioner Below, Petitioner                                                         FILED
                                                                                   August 29, 2014
                                                                                RORY L. PERRY II, CLERK
vs) No. 13-1191 (Fayette County 13-C-285)                                     SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA

David Ballard, Warden, Mt. Olive Correctional Complex,
Respondent Below, Respondent


                                MEMORANDUM DECISION

        Petitioner Thomas Talbert, appearing pro se, appeals the November 15, 2013, order of the
Circuit Court of Fayette County that dismissed his petition for a writ of habeas corpus challenging
his conviction on a prison disciplinary violation. Respondent Warden, by counsel John H.
Boothroyd, filed a summary response.

        The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        Petitioner is a former inmate at Mt. Olive Correctional Complex. 1 According to
petitioner’s petition for a writ of habeas corpus, on or about July 17, 2012, three other inmates
attempted to escape from Mt. Olive. After the other inmates were detected and apprehended,
petitioner was charged with violating disciplinary rule 1.13 for allegedly being an “accessory” to
the attempted escape. While petitioner did not attach a copy of Investigator Curtis Dixon’s incident
report to his petition, he quoted from the report in his petition, as follows:

       I Investigator Curtis Dixon was in my office and was reviewing the video of the
       attempted escape that occurred on July 17, 2012. While watching the video it
       appeared [petitioner] distracted librarian Sherry Cox so inmate Daniel Smith could
       sneak into the library and hide.[2] The video also shows that [petitioner] enter[ed]
       the law library and turn[ed] off a fan [while] inmate [Keith] Lowe was there. As
       [petitioner] left the room, inmate Lowe hid under the desk. Due to these actions it

       1
           Petitioner is currently housed at Huttonsville Correctional Center.
       2
           At the time, petitioner was working as a legal aide in the prison library.

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        appears that [petitioner] is in direct violation of Policy Directive 325. And
        [petitioner] is being charged with 1.13 Accessory to Escape.

         At petitioner’s disciplinary hearing, the petitioner alleged that Investigator Dixon testified
that it appeared that petitioner blocked Librarian Cox’s view when Inmate Smith entered the
library and that petitioner and Inmate Lowe said something when petitioner turned off the fan in
the law library. Petitioner’s petition further alleged that Librarian Cox testified that, in hindsight,
she felt that petitioner was attempting to obstruct her view. However, petitioner testified that he did
not try to block Librarian Cox’s view and that he was innocent of the charge. Petitioner also
presented the testimony of Inmate Jason Hubbard who testified that he and another inmate—not
petitioner—were the last inmate workers to leave the library the night of the attempted escape.

        Also, according to petitioner’s petition, the three inmates who attempted escape were not
permitted to testify at his disciplinary hearing. Petitioner claimed that he obtained affidavits from
the three inmates indicating that he did not aid their attempted escape. Petitioner did not attach
copies of the affidavits to his petition. Petitioner alleged that the correctional hearing officer failed
to consider the affidavits because they were not “properly before” the hearing officer at the
hearing. The circuit court later determined that petitioner’s argument on this point assumed that the
correctional hearing officer knew of the contents of the affidavits, but did not find them persuasive
that petitioner was not an accessory to the attempted escape.

       Petitioner quoted in his petition the correctional hearing officer’s findings as follows:
“Incident report and testimony of Investigator II Curtis Dixon that [petitioner] was blocking the
view of inmate Smith from librarian Sherry Cox, testimony of [petitioner], testimony of librarian
Sherry Cox all supports [sic] the finding of guilty.” According to petitioner’s petition, he was
sentenced to sixty days of punitive segregation and subsequently exhausted his administrative
remedies by filing appeals with the warden of Mt. Olive and the Commissioner of Corrections. No
documents confirming administrative exhaustion were attached to petitioner’s petition.

        On November 1, 2013, petitioner filed his habeas petition in the Circuit Court of Cabell
County, which transferred the case to the Circuit Court of Fayette County.3 On November 15,
2013, the Circuit Court of Fayette County dismissed petitioner’s petition because petitioner (1) did
not attach any supporting documentation that he had exhausted his administrative remedies;4 and
(2) did not include any portion of the administrative record from which the circuit court could
adjudicate his substantive claim that his conviction on the disciplinary charge of being an
accessory should be expunged from his record.

       Petitioner appeals the circuit court’s November 15, 2013, order dismissing his petition. We
review a circuit court’s dismissal of a habeas petition under the following standard:

                 In reviewing challenges to the findings and conclusions of the
        3
            Mt. Olive is located in Fayette County.
        4
            See W.Va. Code § 25-1A-2 (providing that administrative exhaustion is required).
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                circuit court in a habeas corpus action, we apply a three-prong
                standard of review. We review the final order and the ultimate
                disposition under an abuse of discretion standard; the underlying
                factual findings under a clearly erroneous standard; and questions of
                law are subject to a de novo review.

Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006). In addition, the standard for
upholding a disciplinary conviction is only that some evidence exists to support the conviction. See
Snider v. Fox, 218 W.Va. 663, 666-67, 627 S.E.2d 353, 356-57 (2006).

        On appeal, petitioner argues that rather than dismissing his petition for a lack of supporting
documentation, the circuit court should have allowed him the opportunity to prove that he was not
guilty of being an accessory to the attempted escape. Respondent warden counters that given the
deferential standard of review set forth in Snider, the present record allows petitioner’s claim to be
adjudicated. We agree.

       First, the “some evidence” standard is highly deferential because the relevant question is
whether there is “any evidence” in the record that supports the disciplinary conviction. Id. at 667,
627 S.E.2d at 357 (internal quotations and citations omitted).

        Second, while petitioner did not include supporting documentation with his petition, it
appears that he fully reported Investigator Dixon’s and Librarian Cox’s testimony against him.
Petitioner also does not dispute that a video recording exists of his actions at the relevant times in
the prison library.

        Finally, petitioner’s petition was sufficiently clear to allow the circuit court to ascertain the
nature of petitioner’s pro se argument. For example, from our own reading of the petition, we find
that the circuit court correctly determined that petitioner’s argument assumed that the correctional
hearing officer knew of the contents of the affidavits of the three escapees, but did not find them
persuasive.5

         As to the application of the “some evidence” standard to the facts herein, as reported by
petitioner in his petition, the correctional hearing officer found petitioner guilty of being an
accessory under disciplinary rule 1.13 based on (1) Investigator Dixon’s incident report (which
petitioner quoted); (2) Investigator Dixon’s testimony; (3) Librarian Cox’s testimony; and (4)
petitioner’s own testimony. Credibility determinations are not for this Court to make. See Snider,
218 W.Va. at 667, 627 S.E.2d at 357; State v. Guthrie, 194 W.Va. 657, 669 n. 9, 461 S.E.2d 163,
175 n. 9 (1995) (“An appellate court may not decide the credibility of witnesses or weigh evidence
as that is the exclusive function and task of the trier of fact.”). Thus, this Court finds that there was
some evidence supporting petitioner’s conviction under disciplinary rule 1.13. Therefore, the
Court concludes that the circuit court did not abuse its discretion in dismissing petitioner’s habeas
petition.
        5
          On appeal, petitioner indicates that one of the affidavits was available at the time of his
disciplinary hearing.
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      For the foregoing reasons, affirm.

                                                Affirmed.

ISSUED: August 29, 2014

CONCURRED IN BY:

Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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