Michael Williams, Appellant, Shah Aziz, Petitioner Below, vs. Michael Green, Discipline Supervisor, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-530

 

 

Michael Williams,

Appellant,

 

Shah Aziz,

Petitioner Below,

 

vs.

 

Michael Green, Discipline Supervisor,

Respondent.

 

 

Filed November 16, 2004

Affirmed

Robert H. Schumacher, Judge

 

Washington County District Court

File No. CX031638

 

 

Michael Williams, #190665, 5329 Osgood Avenue North, Oak Park Heights, MN 55082 (pro se appellant)

 

Mike Hatch, Attorney General, Kari Jo Ferguson, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2128 (for respondent)

 

 

            Considered and decided by Halbrooks, Presiding Judge; Toussaint, Chief Judge; and Schumacher, Judge.

U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

            Appellant Michael Williams challenges the district court's denial of his habeas corpus petition.  He argues that his due process rights were violated by the manner in which respondent Michael Green, discipline supervisor at Oak Park Heights Correctional Facility, conducted Williams's disciplinary hearing and that the sanction he received violated his equal protection rights.  He also argues the district court erred in not granting his request for an evidentiary hearing and violated his due process rights because the judgment was the result of improper means.  We affirm.

FACTS

In 1997, Williams was convicted of kidnapping and first-degree criminal sexual conduct.  He was sentenced to 268 months.  He is currently serving his sentence at the Minnesota Correctional Facility at Oak Park Heights.  In October 2002, a fight broke out at Oak Park Heights among numerous inmates; Williams, however, was not involved.  After the fight, Oak Park Heights was placed on "lockup" status, meaning the inmates were confined to their cells for safety and security reasons. 

While Oak Park Heights was still under lockup, a second disturbance occurred.  According to the affidavit of Barb Stoltz, an Oak Park Heights Unit Director, approximately 13 inmates, including Williams, "became disorderly, banged and kicked their doors, and threw their food trays out their book passes."  For his conduct, Williams was charged with disorderly conduct and aggravated disorderly conduct under Offender Discipline Regulation 320 and inciting to riot under Offender Discipline Regulation 390. 

In January 2003, Williams received his disciplinary hearing.  According to the hearing officer, Peter Bjurstrom, "Williams testified he threw his food tray out his book pass, and that his intention was to illustrate to other inmates that such behavior would result in more segregation and more extended incarceration."  Bjurstrom's affidavit also states that Officer William Delaney testified during the hearing that Williams had received a food tray and that Williams did not have a food tray in his cell after the incident. 

Prior to the hearing, Williams requested that he be allowed to call as witnesses three inmates from nearby cells.  Bjurstrom's affidavit stated that one of the inmates testified that corrections officers indicated at the time of the incident Williams was missing his food tray.  Williams's other two requested witnesses did not testify at the hearing.  Williams stated in an affidavit to the court that the witnesses would have testified he did not yell from his cell and the worst punishment an inmate would anticipate receiving for his conduct was "bag meals" or 15 days of segregation. 

Bjurstrom stated in his affidavit that the other two proposed witnesses were no longer incarcerated at Oak Park Heights and that, in light of the testimony he had received, "testimony from the other two witnesses was not necessary."  Bjurstrom also stated:  "If I had determined that additional testimony might have been productive, I would have requested that the institution arrange for the two witnesses to appear at the hearing by telephone." 

Bjurstrom determined that Williams's act of throwing his food tray "clearly meets the definition for Disorderly Conduct . . . [and] meets the definition for aggravation due to repeat convictions of Rule #320."  Bjurstrom dismissed the first charge of disorderly conduct and the charge of inciting to riot.  Bjurstrom imposed the requested penalty of 120 days segregation believing the penalty to be "realistic [and] fair."  Williams appealed the decision to the prison warden, and the appeal was denied.

Williams filed a petition for habeas corpus, alleging the disciplinary proceedings violated his due process and equal protection rights, and requested an evidentiary hearing.  The district court denied Williams's request for an evidentiary hearing and his petition for habeas corpus.

D E C I S I O N

            In an appeal from an order involving a petition for a writ of habeas corpus, this court gives great weight to the district court's findings, which will be upheld if supported by the evidence.  State ex rel. Holecek v. Ross, 472 N.W.2d 185, 186 (Minn. App. 1991).  Appellate courts review de novo a district court's conclusions as to the application of a constitutional provision.  State v. Fort, 660 N.W.2d 415, 418 (Minn. 2003). 

            1.         Williams argues he was denied due process of law at his disciplinary hearing because he was not allowed to call two additional witnesses and his hearing was not conducted within seven days of the incident. 

"[T]he right to procedural due process arises only when constitutionally protected liberty or property interests are implicated."  Mortenson v. State, 446 N.W.2d 674, 677 (Minn. App. 1989).  A prison regulation providing that a disciplinary hearing "will be scheduled within seven working days" does not create a liberty interest, and therefore any delay in Williams's hearing did not deny him due process of law.  See Sandin v. Conner,515 U.S. 472, 484, 115 S. Ct. 2293, 2300 (1995) (stating creation of liberty interests based on prison regulations "will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life" (citation omitted)).

When protected interests are implicated, prison authorities must provide an appropriate level of due process.  Goff v. Dailey, 991 F.2d 1437, 1440 (8th Cir. 1993).  Inmates are entitled to the following procedural requirements in a prison disciplinary hearing:  (1) advance written notice of the claimed violation at least 24 hours before the disciplinary hearing; (2) an opportunity to present documentary evidence and call witnesses if it will not jeopardize institutional safety or correctional goals; and (3) a written statement from an impartial decision maker explaining the evidence and reasoning relied upon for the disciplinary action.  Hrbek v. Nix, 12 F.3d 777, 780 (8th Cir. 1993).

Williams contends that he was denied his due process rights because he was prevented from calling two witnesses.  Williams states in an affidavit to the district court that the witnesses would have testified that he did not yell from his cell and that the worst punishment an inmate would anticipate receiving for his conduct was bag meals or 15 days of segregation.

This testimony is not relevant to whether Williams committed disorderly conduct by throwing his food tray out of his cell while the prison was on lockup status.  See Minn. R. Evid. 401 ("'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence"). Due process rights do not entitle an inmate to present evidence he could not have presented at a criminal trial.  See Minn. R. Evid. 402 (stating that "evidence which is not relevant is not admissible"); Sandin, 515 U.S. at 484, 115 S. Ct. at 2300 (stating "lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system" (quotation omitted)).

Williams also argues that he was denied his right to due process because he was not given notice that his prior disorderly conduct sanctions would be used to aggravate his current offense and because he was sanctioned for aggravated disorderly conduct based on the "some evidence" standard.  Williams raised these issues for the first time on appeal in his reply brief.  Issues not raised or argued in an appellant's brief are waived and cannot be revived in a reply brief.  McIntire v. State, 458 N.W.2d 714, 717 n.2 (Minn. App. 1990), review denied (Minn.  Sept. 28, 1990); see also Minn. R. Civ. App. P. 128.02, subd 3 ("The reply brief must be confined to new matter raised in the brief of the respondent.").   

2.         Williams argues his equal protection rights were violated because he received a greater disciplinary sanction for throwing his food tray during lockup status than inmates involved in a racial riot that had created the lockup status.  Both the United States and the Minnesota constitutions guarantee no person shall be denied equal protection of the laws.  U.S. Const., Amend. XIV; Minn. Const., art. I, § 2.  Both clauses are analyzed under the same principles and the crux of both clauses is "the mandate that all similarly situated individuals shall be treated alike but only invidious discrimination is deemed constitutionally offensive."  Scott v. Minneapolis Police Relief Ass'n, 615 N.W.2d 66, 74 (Minn. 2000) (quotation omitted).  The challenging party bears the burden of showing government action results in "different punishments or different degrees of punishment for the same conduct committed under the same circumstances by persons similarly situated."  State v. Frazier, 649 N.W.2d 828, 837 (Minn. 2002). 

Williams states that he is similarly situated to the class of inmates disciplined for their involvement in a fight "based on his gender, race, and status as a prisoner."  Although both groups of prisoners may have been disciplined under the same rule violation, the first event occurred when the prison was not on lockup status, while the prison was on lockup status when Williams committed his violation.  Lockup status is used to ensure the security of the prison facility during times of unrest by confining inmates to their cells.  Williams has not offered any argument that despite the heightened security concerns involved when the prison is on lockup status, he is similarly situated to persons committing disorderly conduct when the prison was not on lockup status.  Because he has not shown that he committed the same act under the same circumstances, the district court properly found that Williams's equal protections rights were not violated. 

3.         Williams also argues the district court improperly denied him an evidentiary hearing.  An inmate petitioning for habeas corpus is entitled to an evidentiary hearing only if the petition shows a factual dispute exists.  Seifert v. Erickson, 420 N.W.2d 917, 920 (Minn. App. 1988), review denied (Minn. May 18, 1988).  Williams's petition does not indicate there was any factual dispute.  The district court did not err in denying his request.

4.         Williams claims he was denied due process because the district court's judgment is the result of "corruption, conspiracy, retaliation, and gender discrimination."  Williams offers no basis for this claim and there is nothing in the record that indicates that the district court acted improperly in denying Williams's petition.  We deem the issue to be waived. State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (stating assignment of error in brief based on mere assertion and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection).      

Affirmed.