The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Petitioner Elvin Lebron ("Lebron" or "petitioner") has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a prison disciplinary determination which resulted in a loss of "good time" credits. The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).
The Tier III prison disciplinary proceeding at issue occurred on December 8, 2003. At that time, Lebron was incarcerated at Southport Correctional Facility ("Southport"). The charges against Lebron stemmed from his alleged misconduct in connection with his attempts to use the prison library.
On September 9, 2003, Beth Tomic ("Tomic" or "the librarian"), the senior librarian at Southport, wrote a misbehavior report charging Lebron with impersonation (Prison Rule 111.10), solicitation of services (Prison Rule 103.20), correspondence procedure violations (Prison Rule 180.11), and smuggling (Prison Rule 114.10). According to the misbehavior report, Lebron had written to Steele Memorial Library using inmate Darrell Wood's name and identification number, had disguised the envelope by labeling it "Legal Mail," and had enclosed four (4) letters requesting services from that library without prior permission of the prison superintendent. R.87, 140.*fn1 In these letters, Lebron had requested the addresses and phone numbers of several individuals, as a well as newspaper articles about "alleged suspect Elvin Lebron." Id. After Tomic compared the four letters with samples of Lebron's handwriting, she determined that he had sent the letters under the assumed name. Id.
Hearing Officer James Esgrow ("H.O. Esgrow" or "the hearing officer") commenced the hearing on December 3, 2003. After being read his rights and obligations, Lebron informed H.O. Esgrow that he had not been served with a copy of the misbehavior report. Noting that the proceedings were actually a re-hearing regarding the September 9th misbehavior report, H.O. Esgrow adjourned the hearing to determine whether petitioner had been served with a copy of the report. R.123-24.
The hearing resumed on December 5, 2003. R.125. In the course of reviewing Lebron's requests for witnesses and documents, R.125-38, Lebron stated that his hearing assistant had failed to provide him with copies of certain documents which he had requested. Lebron also declared, "I object to my assistance. I've been provided with inadequate assistance." R.137. H.O. Esgrow adjourned the hearing temporarily to look into the issues raised by Lebron. R.139.
When H.O. Esgrow resumed the hearing later that morning, he stated on the record that Lebron had been served with a copy of the misbehavior report on November 26, 2003, and that he had "been provided with adequate, the opportunity for meaningful assistance." R.139. Lebron, after being read the charges, pleaded "not guilty." R.141. He objected to the hearing officer's finding on the adequacy of the assistance he had been provided. R.144.
After dealing with a number of procedural objections raised by Lebron, H.O. Esgrow announced that for "reasons of security," he was not going to have Lebron and any other inmate-witness in the same room together during the hearing. R.152. Lebron objected to this ruling.
R.152-53. Lebron then provided H.O. Esgrow with the questions he would like asked of the inmates whom he had called to testify (Wood, Russell, Reddick, and Perry). R.152-60.
Inmate Wood, whom Lebron was alleged to have impersonated, testified first. He stated that he had addressed and mailed the envelope that had been sent to Steele Memorial Library and that the letters therein contained requests for information about Lebron. R.162. Wood testified that he "was helping [Lebron] with his case" and that he wrote the letters for him. R.162-63. Wood confirmed twice that the information requested was not anything he himself wanted; rather, it was something he was doing for Lebron R.162-63. Wood claimed that Lebron had not written the letters and that the handwriting on the letters was Wood's handwriting. R.164.
Tomic, the librarian who had filed the misbehavior report, testified via telephone. Tomic testified that the Southern Tier Library System had sent her an envelope that had been mailed to the Steele Memorial Library. Tomic explained that when a local library receives a letter from an inmate, the letter is forwarded to the library system, which provides library services to inmates in the region. She stated that when she received the envelope from the Southern Tier Library System, it already had been opened. R.171-72. After reading the contents of the envelope, she recalled that petitioner previously had sent her nearly identical requests. She had many exemplars of Lebron's handwriting from his earlier requests. After comparing them with the letters contained in the envelope, she concluded that the handwriting was the same on all the materials. She also was able to conclude that the material requested from the Steele Memorial Library related to petitioner's conviction. R.165-68.
Tomic explained that the proper procedure for an inmate to follow in order to obtain permission to access outside library services is to first write to the prison superintendent's office, which then forwards the letter to Tomic. In this case, Tomic noted, the letter had not been forwarded from the superintendent's office. R.173. Tomic therefore concluded that Lebron had violated the prison's correspondence rules by writing directly to Steele Memorial Library.
Lebron then cross-examined Tomic. Many of his questions were disallowed by the hearing officer as improper or irrelevant. Lebron asked whether Tomic had written the misbehavior report out of animosity towards him as a result of Lebron having filed a number of written complaints about her. Tomic testified that she had no knowledge of the complaints and had written the misbehavior report because it was part of her duties, as an employee, to do so upon discovering a rule violation had occurred. R.178-79.
After Tomic's testimony was completed, the hearing officer adjourned the hearing so that inmates Reddick, Perry, and Russell could be located. R.184.When the hearing resumed, all three witnesses refused to testify. Reddick, an inmate at Southport, stated his refusal on tape. R.184-85. Inmates Perry and Russell were no longer located at the facility, and therefore did not personally appear at the hearing. Instead, they signed forms indicating their refusal to testify which were faxed to the hearing officer. R.185. Lebron objected to the forms, so the hearing officer had the corrections officer who served the forms, Chris Clark ("C.O. Clark") testify by phone. C.O. Clark stated that he had both inmates report to the Tier Hearing Office; both told him that they did not know anything about the incident involving Lebron. R.185-89.
After C.O. Clark testified, the hearing officer asked petitioner if he had anything further he wished to put on the record. R.190. Lebron then made a number of objections; for instance, he alleged that it did not appear to be Perry's signature on the refusal form and protested the hearing officer's decision to have Wood and Tomic testify outside petitioner's presence. R.190-91. Lebron then made a closing argument and also claimed that the hearing officer had conducted an off-the-record investigation because Tomic had documents, such as the misbehavior report, questioning "how did [Tomic] know that she was going to be called as a witness?" R.191-94. The hearing officer stated, "no such investigation or off the record conversation exists" and that it "did not happen." R.194.
Lebron then requested that C.O. Annunziata testify so as to establish that Wood, not petitioner, had placed the envelope in question into the prison mail system. H.O. Esgrow stipulated that Wood had mailed the letter, so Lebron withdrew his request for C.O. Annunziata's testimony. R.197-98. Lebron next asked that the "legal mail processor," who was later identified as mail clerk K. Washburn, testify about "the practice on something that's not deemed legal mail." Lebron requested that records officer V. Grover "testify concerning what is a FOIL request." Lebron requested that Special Housing Unit Director Donald Selsky testify concerning "what is suppose [sic] to be done if no written authorization is obtained to . . . read a prisoner's mail." Finally, Lebron asked that C.O. Curran testify "[a]s a character witness to mitigate the penalties." The hearing officer denied these requests. R.199-200.
As his final point, Lebron indicated that he was "pretty sure that this hearing officer may . . . intend to rely on a previous guilty finding concerning similar charges recently done . . . ."
H.O. Esgrow stated that he had not reviewed Lebron's disciplinary record and would not do so unless and until he determined Lebron was guilty of the charges in the September 9th misbehavior report. R.200.
The hearing officer then entered his findings of fact and conclusions of law on the record, determining that Lebron was guilty of the four charges alleged. R.202-03. H.O. Esgrow relied upon the librarian's misbehavior report, the envelope addressed to Steele Memorial Library and the letters contained within it, the handwriting samples referred to in the report, the librarian's testimony concerning her investigation and the prison procedures for inmates to request outside library services, Lebron's testimony that the handwriting on the letters appeared to be written in his handwriting, R.154, and Lebron's statement that he gave the letters and envelope to a mail porter at the prison. R.203. The hearing officer also relied upon Wood's testimony that he had addressed and mailed the letters to assist Lebron. H.O. Esgrow further found that someone at the Steele Memorial Library (the addressee) had opened the letters and forwarded the envelope to the Southern Tier Library System for further action. Consequently, no further inquiry needed to be made into petitioner's claim regarding his claim that Tomic exceeded her authority and opened his mail. R.203. H.O. Esgrow credited Tomic's testimony that she had not filed the misbehavior report in retaliation, but because she had an obligation to report rule violations. He found that that Lebron had been served with a misbehavior report prior to the hearing and received an additional copy at the hearing, and that Lebron had been provided an adequate opportunity for meaningful assistance by a hearing assistant/correction officer whom he had selected. R.203.
The hearing officer wrote out his disposition and them imposed a penalty of 180 days in the Special Housing Unit ("SHU"). He further recommended a loss of six (6) months good time credits. R.202; see also R.206-08 (Hearing Officer's Written Disposition).
The Commissioner of the New York State Department of Correctional Services ("NYSDOCS") affirmed the hearing officer's determination. R.32. In January 2004, Lebron commenced a proceeding pursuant to Article 78 of New York's Civil Practice Law and Rules in New York State Supreme Court (Chemung County). Lebron's Article 78 proceeding alleged a number of substantive and procedural violations regarding both the December 8th Tier III hearing challenged in the instant habeas proceeding and a separate, unrelated Tier II hearing held in connection with a misbehavior report filed on September 8, 2003. R.2-21. In particular regard to the December 8th hearing, the Article 78 court found that Lebron appeared to be making the following claims: "unuseable evidence due to the failure to obtain a written authorization from the superintendent allowing petitioner's mail to be read; wrongful denial of documents and defense due to an inadequate assistant and the hearing officer's denial of certain documents; wrongful exclusion of witnesses and failure to obtain reasons for the refusal to testify; failure to record all portions of the hearing testimony and that the hearing officer improperly conducted investigations off the record; invalid disposition; biased hearing officer; and excessive sentence." R.233. The court dismissed Lebron's claims on the merits in a decision and order filed February 28, 2005, finding them to be contradicted by the record or without any legal basis.
R.232-36. In particular, the Article 78 court found that Lebron had instructed the court to disregard one of his claims (i.e., the allegation of insubstantial evidence) and therefore had waived it. R.233.
Lebron appealed the denial of his Article 78 petition to the Appellate Division, Third Department, of New York State Supreme Court. That court agreed with the Article 78 court's ...