     Case: 17-41063       Document: 00514929007         Page: 1     Date Filed: 04/24/2019




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

                                       No. 17-41063                             FILED
                                                                            April 24, 2019
                                                                           Lyle W. Cayce
DAVID ANDREW SCHMIDT,                                                           Clerk

               Petitioner - Appellee

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

               Respondent - Appellant




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No.: 1:14-CV-286


Before BARKSDALE, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       At issue is the habeas relief, under 28 U.S.C. § 2254, granted to David
Andrew Schmidt, a prisoner of the Texas Department of Criminal Justice (TDCJ).
Schmidt was charged by TDCJ with stealing powdered milk and destroying state
property by removing the milk from its original container. A disciplinary hearing




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 17-41063
was held, which Schmidt did not attend, but at which he was represented by
counsel substitute.
      At the hearing, counsel substitute stated Schmidt had pleaded guilty and
did not want to attend the hearing, and submitted a service-investigation
worksheet to that effect. An offense report, prepared by the officer who found the
milk, was also submitted. The report stated Schmidt “[d]id intentionally take 2
bread bags of milk[,] such property belonging to the State”, and “did intentionally
destroy 2 bread bags of powder[ed] milk by removing the powdered milk from its
original container[,] said property belonging to State”. The report further stated:
while conducting a cell audit, the officer “open[ed] [Schmidt’s] locker and found 2
large bags of powder[ed] milk and 2 small sandwich bags of powder[ed] milk”; and
Schmidt told the officer “he got it from someone to sell”.
      The disciplinary hearing officer (DHO) found Schmidt guilty of stealing and
of destruction of state property, resulting in, inter alia, the loss of 20-days’
previously-earned good-time credit. Schmidt filed two grievance forms, claiming
the following due-process violations: no one took his statement; he told counsel
substitute he was not guilty of the offenses, and wanted to attend his hearing; and
an investigation would have shown the powdered milk was purchased in the
commissary and was not the State’s property. Both grievances were denied, based
on finding there was substantial evidence to support the DHO’s finding of guilt,
“includ[ing] [Schmidt’s] multiple admissions of guilt”.
      Schmidt filed a pro se § 2254 petition challenging the disciplinary finding
and the loss of 20-days’ good-time credit, asserting: he was actually innocent of
the theft and destruction-of-state-property offenses because the milk was
purchased through the commissary and given to him; his due-process rights were
violated during the disciplinary hearing; and counsel substitute was ineffective
for failing to ensure he was present at the hearing, writing incorrectly in her
report that he admitted guilt and declined to attend, failing to defend or
investigate properly, and failing to try to resolve the case informally, pursuant to
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                                  No. 17-41063
prison policy. Schmidt requested the district court, inter alia, reinstate his lost
good-time credits.
      The magistrate judge’s report and recommendation stated:             Schmidt
contended the milk had been given to him by another inmate and was not state
property, and he told counsel substitute he was not guilty and did want to attend
the hearing; and the offense report merely described the items found in Schmidt’s
locker, and, therefore, there was no evidence proving the powdered milk belonged
to the State. The magistrate judge recommended, inter alia: TDCJ had not met
its evidentiary burden; Schmidt’s § 2254 petition should be granted; and the 20-
days’ lost good-time credit should be restored. Schmidt v. Director, TDCJ-CID,
No. 1:14-CV-286, 2017 WL 4127680, at *2–3 (E.D. Tex. 13 Apr. 2017).
      The TDCJ Director objected to the report and recommendation, contending
Schmidt’s guilty plea reflected in counsel substitute’s investigation worksheet and
statements at the hearing, along with the charging officer’s report, constituted
“some evidence” of Schmidt’s guilt.
      The district court, after de novo review, granted Schmidt’s § 2254 petition
in part, finding: in the light of Schmidt’s contention he was improperly prevented
from attending his disciplinary hearing based on counsel substitute’s actions,
Schmidt’s alleged statement to counsel substitute could not be used as evidence
of his guilt. Schmidt, No. 1:14-CV-286, 2017 WL 4124064, at *1 (E.D. Tex. 18
Sept. 2017). Further, the court found insufficient the charging officer’s conclusory
statement that the property belonged to the State because there was “no factual
evidence to support the statement”. Id. The district court granted Schmidt’s
petition in part, ordering the lost good-time credit be restored, and denying
Schmidt’s request for the disciplinary record to be expunged. Id. at *2.
      As an initial matter, Schmidt exhausted all state remedies: he filed the
requisite grievance forms; and the Texas Court of Criminal Appeals has “refused
to consider matters such as loss of good time credit, disciplinary proceedings and
inmate classification by way of a writ of habeas corpus”. Ex parte Palomo, 759
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S.W.2d 671, 674 (Tex. Crim. App. 1988) (en banc) (citing Ex parte Brager, 704
S.W.2d 46 (Tex. Crim. App. 1986) (en banc)). Therefore, Schmidt has satisfied the
exhaustion requirement of § 2254 because there is not an “available State
corrective process”. See 28 U.S.C. § 2254(b)(1)(B)(i), (c); Anthony v. Johnson, 177
F.3d 978, 978 (5th Cir. 1999) (per curiam) (“Accordingly, a Texas prisoner seeking
to challenge the outcome of a prison disciplinary hearing in habeas corpus
proceedings need exhaust only prison grievance procedures.” (citation omitted)).
      Because Schmidt was granted habeas relief, the district court’s findings of
fact are reviewed for clear error; its conclusions of law, de novo. Richards v.
Dretke, 394 F.3d 291, 293 (5th Cir. 2004) (citation omitted). Due process requires
there be “some evidence” to support the hearing officer’s disciplinary decision. Id.
(citing Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455–56 (1985)).
“Whether there is ‘some evidence’ is an issue of law reviewed de novo.” Id. (citation
omitted).
      The TDCJ Director contends this “some evidence” standard is satisfied.
(Schmidt did not file a response brief.)
      Essentially for the reasons stated in the magistrate judge’s report and
recommendation and the district court’s order, the judgment is AFFIRMED.




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