Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-12-2006

Garrett v. Smith
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4194




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Recommended Citation
"Garrett v. Smith" (2006). 2006 Decisions. Paper 1113.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1113


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                                                               NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                      NO: 05-4194

                                 MICHAEL GARRETT,

                                             Appellant

                                             v.

                               JOSEPH V. SMITH, Warden
                                   _______________

                     On Appeal From the United States District Court
                         For the Middle District of Pennsylvania
                              (D.C. Civ. No. 05-cv-00642)
                         District Judge: Honorable Yvette Kane
                     _______________________________________

                       Submitted Under Third Circuit L.A.R. 34.1(a)
                                     April 14, 2006

          Before; MCKEE, FUENTES AND NYGAARD, CIRCUIT JUDGES

                                 (Filed : May 12, 2006)
                               _______________________

                                       OPINION
                               _______________________

PER CURIAM

       Appellant Michael Garrett appeals from the District Court’s denial of his motion

for habeas corpus under 28 U.S.C. § 2241. For the reasons that follow, we will affirm the

order of the District Court.

       The parties are familiar with the facts, thus we only briefly recite them here. On
April 28, 2003, a call was placed from FCI-Ft. Dix using the PIN number of inmate

Jamelle Peters. Prison officials monitored the call, believing that Garrett was

impermissibly using Peters’ PIN to make calls while he was on phone restriction. During

the conversation, the inmate placing the call mentioned that it was his birthday the

following day. It was in fact Garrett’s birthday. The caller also asked to see “Karen.”

Not only is there a Karen on Garrett’s visitor list, the person receiving the call referred to

the caller as “Rab,” Garrett’s nickname. Garrett appeared before a disciplinary hearing

officer (DHO) on charges of phone abuses and refusing to accept program assignments.

Garrett requested a staff representative and asked to call Peters as a witness. The DHO

postponed the hearing to accommodate the requests. At the subsequent hearing, Garrett

waived his right to representation and to call Peters. The DHO found that Garrett placed

the call and sanctioned him with an aggregate of 67 days disallowance of good-conduct

time, 139 days forfeiture of non-vested good-conduct time, a six-year loss of visiting and

phone privileges, and 90 days of disciplinary segregation.

       After exhausting his administrative remedies, Garrett brought the instant petition

alleging due process violations for the denial of his request to present Peters as a witness

and denial of access to the tape of the phone call. He also alleges that the evidence was

insufficient and that the penalty was arbitrary and capricious. The District Court rejected

the claims and denied relief. Garrett appeals pro se.1



       1
         We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over
the District Court’s legal conclusions. See Wilson v. U.S. Parole Comm’n, 

,
197 (3d Cir. 1999).
       With respect to his due process claim, a prisoner must be given the opportunity to

call witnesses and present documentary evidence in his own defense. See Wolff v.

McDonnell, 

, 566 (1974); 28 C.F.R. § 541.17(c). Garrett argues that he was

denied access to the recording and the right to have an expert analyze the tape of the

phone conversation. While line seventeen of the incident report shows that Garrett

“would like someone to analyze my voice and his [Peters’] voice because he calls that

number frequently,” Garrett never requested a copy of the tape. However, since he did

request an evidentiary analysis, we must still determine if the denial of the request

violates due process.

       Garrett cites no authority, nor have we found any, that establishes a due process

right to have the prison find, retain, and present an expert witness on the prisoner’s

behalf. Rather, the Eighth Circuit has held that such a right does not exist. See Spence v.

Farrier, 

, 755-56 (8th Cir. 1986); see also 

(stating

reasonable penological needs may limit the right to present evidence). We agree with the

Eighth Circuit, and thus, Garrett was not denied due process.

       Garrett also alleges that the DHO prevented him from calling Peters as a witness

by threatening additional disciplinary sanctions if the DHO did not find Peters’ testimony

credible. We agree with the District Court that Garrett fails to present any evidence

contradicting his apparent voluntary choice to waive his right to call Peters, and his

arguments on appeal are unpersuasive.

       Next Garrett claims that the evidence is insufficient to sustain the discipline. A

prison disciplinary decision will be upheld if there is “some evidence” to support the
finding. See Superintendent Mass. Corr. Inst., Walpole v. Hill, 

, 454 (1985).

The record exhibits more than enough evidence to meet this relatively deferential

standard including, but not limited to, the three incriminating facts gleaned from the tape

and that Garrett was prohibited from using the phone.

       Finally, Garrett claims that the sanctions were arbitrary and capricious. Although

he does not raise this issue in his informal brief, we agree with the District Court that the

sanctions were neither arbitrary nor capricious. Garrett was sanctioned in accordance

with the provisions of 28 C.F.R. § 541.13. The DHO noted that this was Garrett’s sixth

offense for violation of Code 297, allowing the DHO to impose any sanction authorized

for the most severe offenses. 28 C.F.R. § 514.13 Table 5. A lighter, but still severe

penalty may be imposed for a third violation of Code 307. Both penalties are clearly

explained in the DHO’s report and are consistent with the regulations. Thus, the

sanctions were not arbitrary.