     Case: 13-41227      Document: 00512813863         Page: 1    Date Filed: 10/24/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 13-41227                                FILED
                                  Summary Calendar                        October 24, 2014
                                                                           Lyle W. Cayce
                                                                                Clerk
STERLING J. MCKOY,

                                                 Petitioner-Appellant

v.

JOHN B. FOX, Warden,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:09-CV-892


Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM: *
       Sterling J. McKoy, federal prisoner # 19319-047, appeals from the
district court’s denial of his 28 U.S.C. § 2241 habeas corpus petition
challenging his prison disciplinary conviction for committing a sexual act
during a prison parenting class on May 27, 2008.
       McKoy raises numerous issues as to the disciplinary hearing officer’s
(DHO) rulings during his disciplinary hearing, and he relies on both the Due


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-41227

Process Clause and on the regulations governing disciplinary hearings. First,
he argues that the DHO committed evidentiary errors, particularly as to the
list of questions he wanted teacher Laura Wheeler to answer, his request that
the entire class be called to testify, his desire to have all class members
interviewed if they were not called testify, the video footage he alleges would
have contradicted Wheeler’s incident report, and documentation showing that
he had been approved for a transfer before the incident in Wheeler’s class.
Second, McKoy argues that the DHO failed to consider his evidence or weigh
it against Wheeler’s incident report, that the DHO failed to consider his version
of events, and that the DHO employed an incorrect evidentiary standard.
      “Prison disciplinary proceedings are not part of a criminal prosecution,
and the full panoply of rights due a defendant in such proceedings does not
apply.” Wolff v. McDonnell, 418 U.S. 539, 556 (1977). Accordingly, a prisoner
is entitled to only the following: (1) written notice of the charges at least 24
hours prior to the disciplinary hearing; (2) an opportunity “to call witnesses
and present evidence in his defense when permitting him to do so will not be
unduly hazardous to institutional safety or correctional goals”; and (3) “a
written statement by the factfinders of the evidence relied on and the reasons
for the disciplinary action.” Id. at 563-70; see also Morgan v. Quarterman, 570
F.3d 663, 668 (5th Cir. 2009). In addition, there must be “some evidence” in
the record which supports the disciplinary decision. Morgan, 570 F.3d at 668.
Even if a prisoner establishes that he was denied the procedural protections
guaranteed by Wolff, he must further establish that he was prejudiced by the
constitutional violation to obtain habeas relief. See Hallmark v. Johnson, 118
F.3d 1073, 1080 (5th Cir. 1997) (upholding denial of habeas relief where
insufficient notice of disciplinary charge was provided because inmate failed to
demonstrate prejudice); see also Brown v. Collins, 937 F.2d 175, 182 (5th Cir.



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1991) (“Before we will issue the Great Writ, the petitioner must demonstrate
that he has suffered some prejudice as a result of the alleged constitutional
violation.”).
      The DHO’s report indicated that the DHO denied the request for the
testimony of the entire class, that McKoy agreed that the written statements
of other prisoners presented at the hearing were sufficient, and that he waived
the personal appearances of those prisoners. Moreover, in light of McKoy’s
own testimony and the statements provided by other prisoners in the class,
any other testimony would have been cumulative. The DHO ascertained that
there was no video recording of the class, and Wheeler stated in her sworn
declaration that there was no video camera in her classroom. The DHO could
not have obtained evidence that never existed.
      Prisoners do not have a due process right to cross-examination or
confrontation during prison disciplinary hearings. Broussard v. Johnson, 253
F.3d 874, 876 (5th Cir. 2001). McKoy had no constitutionally protected right
to question Wheeler, whether before or during the hearing. Wheeler’s incident
report succinctly stated her version of events, and McKoy had no right to obtain
any more evidence from her. See Broussard, 253 F.3d at 876.
      Next, McKoy argues that the prison staff representative appointed to
represent him at the disciplinary hearing had inadequate time to prepare for
the disciplinary hearing, failed to gather evidence, and failed to interview
potential witnesses.
      “An inmate does not have a constitutionally protected right to
representation during prison disciplinary hearings.” Arceneaux v. Pearson,
449 F. App’x 396, 398 (5th Cir. 2011) (citing Wolff, 418 U.S. at 570). However,
“[w]here an illiterate inmate is involved” or where “the complexity of the issue
makes it unlikely that the inmate will be able to collect and present the



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                                  No. 13-41227

evidence necessary for an adequate comprehension of the case, he should be
free to seek the aid of a fellow inmate, or if that is forbidden, to have adequate
substitute aid in the form of help from the staff or from a sufficiently competent
inmate designated by the staff.” Wolff, 418 U.S. at 570.
      The pleadings submitted by McKoy do not evince illiteracy, and the
issues in his disciplinary case were not complex. Either he was masturbating
in class or he was not. Moreover, McKoy was able to obtain the statements of
some of his classmates, and he requested other evidence. Additionally, the
DHO’s report indicated that McKoy himself prepared adequately for the
hearing.    The Due Process Clause did not require appointment of a
representative for McKoy.       See Arceneaux, 449 F. App’x at 398.          Any
shortcomings in his representative’s actions at the hearing did not violate the
Due Process Clause.
      McKoy contends that the evidence was insufficient to support his
disciplinary conviction under the “some evidence” standard. He notes that the
disciplinary report does not actually allege he was masturbating, and he
suggests in some detail that it would have been mechanically impossible for
him to masturbate at a desk in Wheeler’s classroom.
      Wheeler’s incident report indicated that McKoy had his hand inside his
pants and that he was moving his hand in a stroking motion. The finding of
guilt therefore was supported by some evidence in the record. See Morgan, 570
F.3d at 668.
      Next, McKoy contends that United States ex. rel. Accardi v.
Shaughnessy, 347 U.S. 260 (1954), should apply to the Bureau of Prisons’
(BOP) disciplinary hearing regulations. “The Accardi doctrine stands for the
unremarkable proposition that an agency must abide by its own regulations.”
Richardson v. Joslin, 501 F.3d 415, 418 (5th Cir. 2007) (internal quotation



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                                  No. 13-41227

marks and citation omitted).         Nevertheless, in the context of prison
regulations, failure to follow them, without more, does not amount to a
constitutional violation. See id.; Mackey v. Federal Bureau of Prisons, 440 F.
App’x 373, 374-75 (5th Cir. 2011). “Collateral relief is not available for failure
to comply with the formal requirements of [federal regulations and BOP policy
statements] in the absence of any indication that the petitioner was
prejudiced.” Mackey, 440 F. App’x at 374-75.
       The DHO’s report indicated a detailed consideration of the evidence
under the correct evidentiary standards, and McKoy’s contentions that the
disciplinary hearing did not comply with the Due Process Clause are
unavailing. McKoy has not demonstrated any prejudice arising from any
failure to comply with the BOP’s regulations. See Mackey, 440 F. App’x at 874-
75.
       McKoy argues that the district court failed to make findings of fact and
conclusions of law as to his claim that the DHO failed to consider the
testimonial and documentary evidence produced at the disciplinary hearing.
The district court, however, reviewed McKoy’s claims adequately, and any
failure to address a particular argument is at most harmless error, see FED.
R. CIV. P. 61.
       Finally, McKoy argues that the district court erred by not holding an
evidentiary hearing. “To receive a federal evidentiary hearing, the burden is
on the habeas corpus petitioner to allege facts which, if proved, would entitle
him to relief.” Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir. 1989) (28 U.S.C.
§ 2254 case); Wahl v. Bureau of Prisons Officers, 281 F. App’x 359, 360 (5th Cir.
2008) (applying Ellis in § 2241 context). McKoy alleges no facts warranting an
evidentiary hearing. See Ellis, 873 F.2d at 840.
       AFFIRMED.



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