by Matthew T. Clarke


A federal district court in Austin, Texas, held that: (1) pending
administrative remedies toll the 28 U.S.C. §2254(d)(2) one-year limitations
period; (2) a prisoner's transfer to another prison is not a valid reason
to deny him as a witness in a major disciplinary proceeding; (3) theft is
not a lesser included disciplinary offense of trafficking and trading; (4)
a disciplinary charge cannot be changed in mid-proceeding to another charge
which is not lesser included; and (5) a prisoner may be awarded costs after
successful litigation of a federal habeas action.

Terrence Hazel, a Texas state prisoner, filed a habeas corpus action under
28 U.S.C. § 2254 in federal district court after he was convicted of theft
in a prison disciplinary hearing and punished with the loss of visitation
and commissary privileges for 45 days, reduction in good time earning class
from S-4 to L and the loss of 180 days of good time. Hazel alleged that
there was no evidence he committed theft, he was denied his right to call
witnesses, he was recharged with a new charge without an opportunity to
present a new defense, and the disciplinary case was in retaliation for his
assisting another prisoner in litigation. After numerous delays by the
state and a failure of the state to produce court-ordered evidence, the
court ruled in Hazel's favor.

Hazel was accused of putting another prisoner's letters and attached
request for indigent postage into the prison mail system. Unbeknownst to
Hazel, the other prisoner had been transferred to another prison eleven
days earlier. Hazel never denied that he placed the indigent supplies
request in the mail system, but contended that he did no wrong as he had
merely helped the other prisoner fill out the request which the other
prisoner signed and was authorized by the other prisoner to mail the
request and letters upon completion of the § 1983 forms they contained.
Hazel was charged with a major disciplinary infraction: trafficking and
trading (T&T). During the disciplinary hearing, the disciplinary officer
(DO) realized that the evidence did not support a charge of T&T, so he
changed the charge to theft, found Hazel guilty, and punished him as noted
above. The DO refused to allow Hazel to call the other prisoner as a
witness because the other prisoner had been transferred to another prison.
Hazel exhausted state administrative remedies, then filed a federal habeas
corpus action under 28 U.S.C. § 2254. As a preliminary matter, the court
held that the state's defense of limitations was invalid. The state
contended that, because the habeas action was filed more than one year
after the disciplinary hearing was held, it was barred by limitations under
28 U.S.C.§ 2254(d). The government's position was that the nine months
during which Hazel exhausted administrative remedies did not toll the
limitations period.

The court held that "the government's position defies common sense. Under
its theory, the TDCJ could prevent habeas review of its decisions by
prolonging the review process over one year, as it nearly did in this
case." The wording of § 2254(d)(2) states that the limitations period is
tolled during the pendency of post-conviction or other collateral reviews
of the pertinent judgment or claim. Thus, Congress clearly included
"claims" reviewed by "other" means to be included in the tolling provision.
"In short, quibbling over the wordplay in section 2254(d)(1) is full of
sound and fury, signifying nothing." Therefore, the nine months were tolled
and Hazel's habeas petition was timely

The court held that Hazel had no liberty interest in his commissary and
visitation privileges or his good time earning class. However, because
Hazel was eligible for and had a liberty interest in mandatory supervision,
he did have a liberty interest in his good time which entitled him to due
process.

The court held that, under Wolff v. McDonnell, 418 U.S. 539 (1974), Hazel's
due process rights were violated when he was denied the right to call as a
witness the prisoner he was accused of stealing from. Rule 1V.B.6 of the
TDCJ Disciplinary Rules and Procedures provides that "any witness,
including the charging officer, who is unable to attend the hearing may be
interviewed by telephone during the hearing." The government showed no
valid reason why the other prisoner would not have been allowed to testify
by telephone. "Considering Petitioner was charged with stealing from this
inmate, prison officials would have a difficult time proving Petitioner's
infraction without this inmate's testimony." Therefore, the denial of the
witness was a Due Process violation.

The changing of the charge in mid-hearing was also a violation of Due
Process as explained in Wolff. Hazel was initially charged with T&T and
failure to obey an order. The DO dismissed the failure to obey charge and
found Hazel not guilty of T&T. The government attempted to justify the
change in charge by claiming that theft was a lesser included offense of
T&T. However, the court found that theft required the intent to deprive
another individual of his property which T&T did not. Therefore, theft
could not be a lesser included offense of T&T and the change in charge
without 24-hours notice violated the Due Process Clause.

Because there was no evidence of an intent to deprive, there was
insufficient evidence to support the charge of theft even under the "some
evidence" standard. The finding of guilty with respect to the theft charge
was arbitrary and capricious. Therefore, the court ordered TDCJ to provide
Hazel with a new hearing or expunge his record of the disciplinary charges
within 90 days. The court refused to address the retaliation issue. The
court also granted Hazel $74.11 in costs for postage, envelopes, paper, and
typewriter ribbons. See: Hazel v. Johnson, A-97-771-SS (U.S.D.C.-W.D.Tex.
Austin 1999).

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