                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS



Jason E. Waybright,
                                                                                     FILED
                                                                                    March 14, 2014
Petitioner Below, Petitioner                                                    RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
vs) No. 13-0899 (Fayette County 13-C-127)

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

                                MEMORANDUM DECISION

        Petitioner Jason E. Waybright, appearing pro se, appeals the August 1, 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. Petitioner filed a reply.

        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 an inmate at Mt. Olive Correctional Complex. On January 2, 2013,
Investigator Curtis Dixon charged petitioner with violating disciplinary rule 1.03(3) which
provides, in pertinent part, that no inmate shall “engage in any sexual act, such as, but not limited
to . . . kissing, fondling[.]”1 Investigator Dixon issued a violation report following his interview of
Correctional Officer Brittany Taylor who stated that on December 21, 2012, she observed
petitioner and two other inmates “kiss each other on the cheek, grab each other on the butt, and hug
each other” in Oak Hall.

       A disciplinary hearing occurred on January 14, 2013. Petitioner moved to dismiss the
charge because (1) the employee making the violation report (Investigator Dixon) was not the
charging employee (Correctional Officer Taylor); and (2) Policy Directive 325.00 was not
followed.2 The hearing officer denied each motion and found that “Policy Directive 325.00 was


       1
           Disciplinary rule 1.03 is entitled, “rape/sexual assault/sexual abuse/sexual acts.”
       2
        Policy Directive 325.00 delineates the various disciplinary violations and sets forth the
procedure for disciplining inmates.
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followed.” Petitioner also offered to plead guilty to the reduced charge of “physical contact,” but
the hearing officer denied his motion to reduce the charge.

        Pursuant to disciplinary rule 2.36, “physical contact” constitutes a lesser disciplinary
violation that is defined as “purposeful physical contact (i.e. embracing, holding hands, etc.) with
any other person.” As noted in the January 14, 2013 hearing report, Correctional Officer Taylor
described the inmates’ activity on December 21, 2012, as horseplay rather than a sexual act.
However, the hearing officer credited Investigator Dixon’s testimony that Correctional Officer
Taylor was only a temporary officer who had not received any training under the Prison Rape
Elimination Act of 2003 (“PREA”), 42 U.S.C. §§ 15601 to 15609. Investigator Dixon indicated
that petitioner was charged with the more severe rule violation under 1.03(3), in part, because of
the PREA.3

        Petitioner denied he committed any “rape/sexual assault/sexual abuse/sexual act” under
disciplinary rule 1.03 and desired to call the two other inmates as witnesses. The correctional
hearing officer ruled that the other inmates were excused from testifying at petitioner’s hearing as
“they were all involved in the sex act.” Based on the report and testimony of Investigator Dixon, as
well as petitioner’s own testimony, the hearing officer found petitioner guilty of violating rule
1.03(3). The hearing officer sentenced petitioner to sixty days of punitive segregation with loss of
all privileges from January 3, 2013, to March 3, 2013.4

        Petitioner administratively appealed his disciplinary conviction and sanction. 5 The
Commissioner of Corrections affirmed the correctional hearing officer’s decision prior to the
issuance of Respondent Warden’s decision. Pursuant to disciplinary rule 7.01(b)(2), Respondent
Warden had thirty days to answer petitioner’s appeal. Once that time period expired, petitioner
proceeded to appeal to the Commissioner without a ruling from Respondent Warden. As found by
the circuit court, the Commissioner has the practice of treating a lack of a decision from a warden
as a “unfavorable answer” to an inmate’s appeal. The Commissioner followed his practice in the
instant case and proceeded to affirm the hearing officer’s decision. Subsequently, on March 14,
2013, Respondent Warden answered petitioner’s appeal and also upheld the hearing officer’s
decision.

       On May 20, 2013, petitioner filed a petition for a writ of habeas corpus in the circuit court
challenging his disciplinary conviction and sanction under rule 1.03(3). The circuit court
       3
          The PREA was enacted to “protect the Eighth Amendment rights of Federal, State, and
local prisoners,” and to “establish a zero-tolerance standard for the incidence of prison rape in
prisons in the United States[.]” 42 U.S.C. §§ 15602(1) and (7) (Emphasis added.).
       4
         According to petitioner, the two other inmates were also charged under rule 1.03(3) and
each received thirty days of punitive segregation with loss of all privileges.
       5
         While petitioner has been released from punitive segregation, he has not been placed
back in the general prison population. Rather, petitioner has been placed in administrative
segregation.
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conducted a preliminary review of the petition6 and dismissed it in an order entered August 1,
2013. The circuit court specifically refuted numerous arguments raised by petitioner, which
included (a) finding that sufficient evidence existed to support petitioner’s conviction of
disciplinary rule 1.03(3) and (b) concluding that petitioner’s disciplinary proceeding comported
with the due process standards set forth by this Court in Syllabus Point 1 of Harrah v. Leverette,
165 W.Va. 665, 271 S.E.2d 322 (1980).7 The circuit court indicated that any argument it did not
specifically address did not merit any discussion.

        Petitioner appeals the circuit court’s August 1, 2013, dismissing the 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
               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).

    STRICT COMPLIANCE WITH POLICY DIRECTIVE 325.00 WAS NOT REQUIRED.

        Petitioner asserts that there were numerous instances where correctional officials failed to
comply with the procedures set forth in Policy Directive 325.00. Respondent Warden counters that
correctional officials met due process standards in petitioner’s disciplinary proceeding. Section I
of Policy Directive 325.00 states that while the policy is meant to serve as a procedural guideline
governing the inmate disciplinary process, “[i]t shall not be construed as vesting any inmate a
liberty or property interest greater than that, which is otherwise provided by law.” Accordingly,
this Court finds that the circuit court’s determination that petitioner’s disciplinary proceeding met


       6
         The circuit court stated that it performed the preliminary review pursuant to Rule 4 of the
West Virginia Rules Governing Post-Conviction Habeas Corpus Proceedings. However, the
correct citation is to West Virginia Code § 25-1A-4, as this is the provision that allows
pre-screening of habeas petitions in which only the terms and conditions of confinement are being
challenged.
       7
          Those standards are as follows: (a) written notice to the inmate of the claimed violation;
(b) disclosure to the inmate of the evidence against him; (c) opportunity to be heard and to present
witnesses and documentary evidence; (d) the right to confront and cross-examine adverse
witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation);
(e) a neutral and detached hearing body; (f) a written statement by the fact-finders of the evidence
relied on and reasons for discipline; and (g) the right to counsel if the State is represented by a
lawyer.

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the Harrah standards resolves all of petitioner’s procedural arguments and that strict compliance
with Policy Directive 325.00 was not required.

             PETITIONER’S EQUAL PROTECTION CLAIM LACKS SUPPORT

        Petitioner asserts that he received unequal treatment because he was sanctioned with sixty
days of punitive segregation (followed by administrative segregation) while the two other inmates
were sanctioned with only thirty days of punitive segregation even though they possessed far
worse prison records. However, this Court “may disregard errors that are not adequately supported
by specific references to the record on appeal.” Rule 10(c)(7), W.V.R.A.P. The Court has reviewed
petitioner’s appendix and finds no information with regard to the respective prison records.
Therefore, the Court disregards this alleged error.

     PETITIONER HAD NO RIGHT TO BE CHARGED WITH A LESSER VIOLATION

        Petitioner argues that the hearing officer should have reduced the charge to a lesser
violation because Correctional Officer Taylor described the inmates’ activity as horseplay rather
than a sexual act. Respondent Warden counters that the circuit court correctly found that sufficient
evidence existed to support petitioner’s conviction of “rape/sexual assault/sexual abuse/sexual
act” under disciplinary rule 1.03(3). This Court notes that the hearing officer—the finder of
fact—credited Investigator Dixon’s testimony that Correctional Officer Taylor was only a
temporary officer who had not receive any training on the PREA which was meant to reduce, if not
eliminate, inmate sexual assault. Where sufficient evidence exists, as in this case, to support
multiple disciplinary rule violations, “the [S]tate, at its option, may choose to prosecute for the
violation of one [rule] or for the violation of multiple [rules] under appropriate circumstances
where multiple punishment is . . . authorized.” Snider v. Fox, 218 W.Va. 663, 666 n. 6, 627 S.E.2d
353, 356 n. 6 (2006) (finding sufficient evidence for inmate’s conviction of “rape” under
disciplinary rule 1.03 when he grabbed the breast of a nurse) (Internal quotations and citations
omitted.). Therefore, this Court concludes that petitioner had no right to be charged with a lesser
violation.

        With respect to all other issues raised, we hereby adopt and incorporate the circuit court’s
well-reasoned findings and conclusions as to the assignments of error raised in this appeal. The
Clerk is directed to attach a copy of the circuit court’s August 1, 2013 order to this memorandum
decision

       For the foregoing reasons, we find no error in the decision of the Circuit Court of Fayette
County and affirm the circuit court’s August 1, 2013 order dismissing the petition for a writ of
habeas corpus.

                                                                                         Affirmed.




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ISSUED: March 14, 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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