     Case: 15-40562      Document: 00513516088         Page: 1    Date Filed: 05/23/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-40562
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            May 23, 2016
JORGE ALBERTO MARTINEZ,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Petitioner-Appellant

v.

SCOTT YOUNG, Warden of Federal Correctional Institution Texarkana,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 5:14-CV-20


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       Petitioner-Appellant Jorge Alberto Martinez, federal prisoner # 26745-
051, appeals the dismissal of his 28 U.S.C. § 2241 habeas corpus petition
challenging his having been found guilty in a prison disciplinary proceeding.
He complains that he was denied procedural due process, based on Wolff v.
McDonnell, 418 U.S. 539 (1974), when his staff representative failed to obtain
evidence that would have exonerated him from the charge of viewing


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40562

pornography on a computer in the prison computer laboratory. Martinez
asserts that after his disciplinary hearing and release from administrative
segregation, he obtained new evidence that he presented in his final appeal to
the Central Office which should have resulted in a reversal of the finding of
guilt.
         “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.” Jeffers
v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001). Because Martinez lost earned
good time credits, he was entitled to due process as recognized in Wolff. See
Wolff, 418 U.S. 563-70; Henson v. United States Bureau of Prisons, 213 F.3d
897, 898 (5th Cir. 2000). A review of the disciplinary record reflects that
Martinez received all of the procedural process to which he was due under
Wolff. The record shows that Martinez was given (1) written notice of the
charges, (2) the opportunity to call witnesses and present documentary
evidence in his defense, and (3) a written statement of the evidence relied on
and the reasons for the disciplinary action taken. Wolff, 418 U.S. at 563-70.
         Martinez   cannot   complain    about    the   adequacy     of   his   staff
representative’s assistance because he was not entitled to retained or
appointed counsel for the disciplinary proceedings. Wolff, 418 U.S. at 570.
Neither did Martinez show that he was illiterate or that the case was so
complex that he was unable to present evidence. Id. His assertion made for the
first time on appeal that he was not fluent in English is not subject to review.
See Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Disc. Ctrs., Inc., 200 F.3d
307, 316-17 (5th Cir. 2000). Because Martinez was not constitutionally entitled
to representation, the failure of his staff counsel to seek a continuance did not
result in a denial of due process. Further, the record reflects that Martinez
indicated to the disciplinary hearing officer that he was prepared to proceed



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                                        No. 15-40562

with the hearing, and he provides no valid explanation for his failure to request
more time to obtain evidence. Martinez’s argument, made for the first time in
his notice of appeal, that the Accardi 1 doctrine required the Bureau of Prisons
to provide him with adequate staff representation to assist him in obtaining
evidence is not subject to review. See Stewart Glass & Mirror, Inc., 200 F.3d at
316-17.
      Martinez next contends that the new evidence he obtained conclusively
demonstrated that he was innocent of committing the prohibited act. Martinez
argues that, when the evidence is in conflict, the decision must be made based
on the greater weight of the evidence, which he contends proves his innocence
and a decision otherwise would be arbitrary and capricious.
      The findings of a prison disciplinary hearing should not be disturbed
unless they are arbitrary and capricious. See Stewart v. Thigpen, 730 F.2d
1002, 1005 (5th Cir. 1984). We need not undertake a de novo review of the
DHO’s findings of fact and must consider only whether there are at least “some
basis in fact” or a “modicum of evidence” to support the disciplinary conviction.
Superintendent, Massachusetts Corr. Inst. v. Hill, 472 U.S. 445, 454-56 (1985).
      The record reflects that the disciplinary hearing officer relied on the
written statement and subsequent memorandum of the charging officer
regarding her eye witness observation of the inmates who were involved in the
viewing of pornography and photographs of the physical evidence subsequently
recovered from the hard drives of the computer. The records shows that there
was evidence presented that supports Martinez’s disciplinary conviction. See
Hill, 472 U.S. at 454-56. Contrary to Martinez’s contention, we may not
consider the weight of the evidence or make credibility determinations in
reviewing the finding of guilt in the disciplinary proceeding. Id. at 455.


      1   United States ex. rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954).


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                                No. 15-40562

Martinez has not shown that the disciplinary decision was arbitrary or
capricious. See Stewart v. Thigpen, 730 F.2d 1002, 1005 (5th Cir. 1984). The
judgment of the district court is AFFIRMED.




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