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Ron v. Wilkinson

decided as amended.: November 21, 1977.

AHARON RON, APPELLANT,
v.
GEORGE C. WILKINSON, WARDEN, FEDERAL CORRECTIONAL INSTITUTION, DANBURY, CONNECTICUT, ET AL., APPELLEES



Appeal from dismissal without hearing or answer by United States District Court for the District of Connecticut, Newman, J., of petition for writ of habeas corpus brought to restore 90 days good time forfeited in prison disciplinary proceedings.

Lumbard, Moore and Feinberg, Circuit Judges.

Author: Feinberg

FEINBERG, Circuit Judge:

Aharon Ron appeals from a judgment of the United States District Court for the District of Connecticut, Jon O. Newman, J., dismissing his petition for a writ of habeas corpus. The basis of appellant's petition was that he had been unlawfully denied 90 days of statutory good time after an improper prison disciplinary proceeding. The district court considered only petitioner's papers and did not require any answer from respondents or conduct any hearing. We hold that, on this record, it was error to dismiss the petition.

I

Appellant, who was convicted of various federal offenses in 1973, is now a prisoner in the Federal Correctional Institution at Danbury, Connecticut.*fn1 The loss of good time, however, grows out of a disciplinary proceeding conducted in September 1976 at the Federal Correctional Institution at Lexington, Kentucky, after appellant was found hiding in a barn on the prison grounds with a female visitor.

It is important to focus on what the petition presented to the district court, since the judge ruled merely on the papers before him. The petition claimed that the barn was not off limits to appellant, that he had been there many times before with permission from Prison Counselor Moses, that the visitor was an authorized visitor, that appellant did nothing improper with his visitor, and that there was an innocent reason, set out in detail in the petition, for the two of them to be where they were found.*fn2 Petitioner further alleged that a three-person Unit Disciplinary Committee (UDC), including one Mary McCroskey, charged him with escape and with being in an unauthorized area, found him guilty of both charges and then referred his case for a hearing before the Institution Disciplinary Committee (IDC), apparently in accordance with procedures provided for by applicable regulations.*fn3

The petition also alleged that petitioner "does not communicate well in the English language," that he was presented with three forms before his IDC hearing, that he did not understand the forms and refused to sign any except the one requesting Prison Counselor Moses as his representative, that appellant was told that he had to sign all the papers or none, and that "accordingly [he] was not permitted to request a representative."*fn4 Still according to the petition: Petitioner had no representative at the IDC hearing, and the charges were amended to exclude escape, but to add unauthorized contact with the public and conduct in violation of posted regulations. Petitioner now admits that he made some untrue statements at the hearing out of a desire to protect "Counselor Moses who had always been kind" to him. The three-person IDC, including one Ray W. McCroskey, found petitioner guilty of the three charges and ordered forfeiture of 280 days statutory good time, transfer to a more secure institution and continued disciplinary segregation. On an administrative appeal, the Warden expunged the charge of unauthorized contact with the public and reduced from 280 to 90 the number of good time days lost.

Petitioner claimed that this penalty was imposed without due process of law because he "was denied a representative he wanted and needed . . ., because he did not understand the proceedings and could not defend himself," because the "IDC was not impartial" (apparently, the McCroskeys are related),*fn5 because petitioner did not receive adequate notice of the charges and because the finding of guilt was arbitrary and capricious.

As indicated above, the judge did not require any answer to this petition or conduct a hearing, but dismissed the petition sua sponte. The judge's written memorandum stated that petitioner's "disciplinary record now reflects only a finding of guilt on the charge of being in an unauthorized place," for which 90 days good time has been forfeited, and that the only real issues at the disciplinary hearing were whether the barn "was an authorized area" and whether petitioner "was aware that it was unauthorized." On this, the judge concluded that the papers before him and "plain common sense" allowed only answers unfavorable to petitioner.*fn6

Turning to the lack of representation at the hearing, the judge held that petitioner had no constitutional right to counsel at the prison disciplinary hearing, but acknowledged that under the Federal Bureau of Prisons Policy Statement, see note 4 supra, petitioner did have the right to substitute representation and that the hearing arguably "did not conform precisely" to the requirements there set forth. However, the judge concluded that

petitioner's recalcitrance in not acknowledging the notice forms prepared by the prison to protect other procedural rights of petitioner's substantially undermines his complaint about the . . . [prison's] failure to act upon the one form he was willing to sign. Moreover, the lack of representation does not appear to have resulted in any prejudice. Having conceded his presence in the barn, petitioner's only defense to the charge of being in an unauthorized place, as I understand it, could not have been argued persuasively by even the most forceful advocate.

Petitioner's other arguments were rejected summarily. Following commendable local practice, even though the petition was dismissed the United States Attorney was served with copies of all relevant ...


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