     Case: 15-30232      Document: 00514439654         Page: 1    Date Filed: 04/20/2018




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

                                      No. 15-30232
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            April 20, 2018

FREDERICK L. BODISON,                                                      Lyle W. Cayce
                                                                                Clerk
              Petitioner - Appellant

v.

T. G. WERLICH,

              Respondent - Appellee



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:14-CV-2848


Before HIGGINBOTHAM, JONES, and GRAVES, Circuit Judges.
PER CURIAM:*
       This is an appeal from the denial of a habeas petition stemming from a
prison disciplinary hearing. We REVERSE and REMAND for further
proceedings consistent with this opinion.
                            FACTUAL BACKGROUND
       On June 17, 2013, staff at a federal correctional facility in Florida found
several pieces of white fabric in an envelope addressed to Appellant. Prison
staff claimed that the fabric tested positive for cocaine using an ION Scan


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-30232

400B. The next day, another card arrived addressed to Appellant with more
white fabric. Again, prison staff claimed that the fabric tested positive for
cocaine. A search of Appellant’s possessions ensued, resulting in correctional
officers finding more greeting cards, one of which allegedly tested positive for
cocaine.
      Correctional staff then reviewed Appellant’s phone conversations with
his wife. Staff noted that on June 6, 2013, Appellant told his wife, “You know
those little card things? If you double them up that would be great!” When his
wife responded that the cards “will get too puffy,” Appellant said, “[i]t might
seem like that to you, but they don’t necessarily know.”
      Based on that evidence, prison officials determined that Appellant’s wife
was mailing him cocaine and charged him in a disciplinary proceeding with
attempt to introduce narcotics. At his disciplinary hearing, Appellant argued
that the evidence in the investigative report was false, claiming that the
substance on the fabric was used for cleaning gold teeth. Appellant alleges he
sought to call a number of witnesses to support that defense. For reasons
unexplained in the record, the hearing officer denied Appellant’s request to call
witnesses. The hearing officer then, apparently relying on the alleged drug test
results, which were not presented at the hearing, found that the weight of the
evidence supported a conviction. As punishment, Appellant lost forty-one days
of good time credit.
      Appellant filed a habeas petition challenging that decision before the
district court, arguing that the disciplinary hearing violated his due process
rights and that there was insufficient evidence to convict him. The district
court denied the petition and this appeal timely followed.




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                                 No. 15-30232

                          STANDARD OF REVIEW
      “In an appeal from the denial of habeas relief, this court reviews a
district court’s findings of fact for clear error and issues of law de novo.”
Gallegos-Hernandez v. United States, 688 F.3d 190, 194 (5th Cir. 2012)
(internal quotations omitted).
                                 DISCUSSION
      Appellant argues that the disciplinary proceedings violated his due
process rights in three ways. We need address only one. Because we find that
the district court erred in considering Appellant’s claim regarding his right to
call witnesses, we reverse and remand for reconsideration of Appellant’s
habeas petition consistent with this opinion.
I.    Prison officials must explain reasons for denying witnesses.
      Appellant argues that prison officials violated his due process rights by
denying him the ability to call witnesses. The district court found no violation
because “even assuming the witnesses would have testified as [Appellant]
claims . . . it would not have affected the outcome of his disciplinary hearing.”
      The Supreme Court set out the due process owed at prison disciplinary
proceedings in Wolff v. McDonnell, 418 U.S. 539 (1974). “Chief among the due
process minima outlined in Wolff was the right of an inmate to call and present
witnesses and documentary evidence in his defense before the disciplinary
board.” Ponte v. Real, 471 U.S. 491, 495 (1985). Nonetheless, “the prisoner’s
right to call witnesses . . . [can] be denied if granting the request would be
‘unduly hazardous to institutional safety or correctional goals.’” Id. (quoting
Wolff, 418 U.S. at 566). However, prison officials must articulate the reasons
they denied a request to present witnesses. Id. at 495-99. “[T]hey may do so
either by making the explanation a part of the ‘administrative record’ in the
disciplinary proceeding, or by presenting testimony in court if the deprivation


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                                    No. 15-30232

of a ‘liberty’ interest is challenged because of that claimed defect in the
hearing.” Id. at 497.
      Here, there is no indication in the record why prison officials denied
Appellant his right to call witnesses. The prison officials’ failure to provide any
explanation does not meet the requirements of Ponte. See id. at 495-99.
      “However, even in the event of a constitutional violation, a habeas
petition may not be granted unless the petitioner demonstrates that he was
prejudiced by the violation.” Mascitti v. Thaler, 416 F. App’x 411, 415 (5th Cir.
2011) (citing Simpson v. Ortiz, 995 F.2d 606, 609 (5th Cir. 1993)). According to
the district court, Appellant cannot show any prejudice because he alleged the
witnesses would testify that Appellant did not sell drugs at the facility. The
district court believed that this would “not have affected the outcome of
[Appellant’s] disciplinary hearing since his conviction was not based on the
sale of drugs.”
      While it is true that Appellant originally argued only that the witnesses
would testify he was not selling drugs, Appellant later expanded on that
argument    in    his   objection   to   the   magistrate    judge’s   report   and
recommendation. The district court failed to consider these further arguments.
See United States v. Woods, 870 F.2d 285, 288 n.3 (5th Cir. 1989) (“Pro se
habeas corpus petitions must be construed liberally.”).
      In his objections to the R&R, Appellant argued that his witnesses “would
have testified that the alleged cocaine was in fact used by the petitioner to
clean his gold teeth.” It is clear from Appellant’s objections, read liberally as a
whole, that his defense to the drug charge was that the test showing cocaine
residue was false and that the material on the cloth was in fact jewelry cleaner.
These facts, which rebut whether any narcotics were sent to Appellant in the
first place, are relevant to the charges lodged against him.


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                                 No. 15-30232

      Further, denial of the right to call witnesses potentially prejudiced
Appellant. The only evidence that the cloth tested positive for cocaine was the
statements of prison officials who asserted they had conducted an Ion 400B
scan on the material. There were “no lab results or report.” To rebut these
officers’ testimony, Appellant sought to introduce his own witnesses to show
that the material was jewelry cleaner, not a narcotic. Appellant was denied the
right to do so. Further, in affirming Appellant’s conviction, the Regional
Director noted that Appellant had “not provided any evidence to substantiate
[his] contention” that the incident reports falsely stated the material contained
cocaine. Appellant alleges he failed to present such evidence because he was
denied the right to call witnesses.
      Accordingly, we reverse the district court’s conclusion that Appellant has
not alleged a potential violation of due process rights. Without an explanation
why the hearing officer denied the request to call witnesses, however, we
cannot determine whether Appellant’s due process rights have been violated.
We leave consideration of that question to the district court in the first
instance.
                                CONCLUSION
      The district court’s opinion is REVERSED and REMANDED for further
proceedings consistent with this opinion.




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