United States Court of Appeals
                                                                                         Fifth Circuit
                                                                                      F I L E D
                           UNITED STATES COURT OF APPEALS
                                                                                      January 12, 2004
                                FOR THE FIFTH CIRCUIT
                                                                                  Charles R. Fulbruge III
                                  _________________________                               Clerk
                                         No. 03-40740
                                    SUMMARY CALENDAR
                                  _________________________

DANIEL RAMIREZ

                       Petitioner - Appellee

   v.

DOUG DRETKE, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

                       Respondent - Appellant.

______________________________________________________________________________

                  Appeal from the United States District Court for the
                             Southern District of Texas
                                   (C-02-CV-497)
______________________________________________________________________________

Before REYNALDO G. GARZA, DAVIS, and BARKSDALE, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:1

        In this appeal we review the magistrate judge's decision granting Petitioner-Appellee,

Daniel Ramirez, habeas corpus relief from his disciplinary conviction for aiding and abetting an

attempt to escape. For the following reasons, we reverse and remand.




        1
        Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.
47.5.4.

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                                                  I.

                       FACTUAL AND PROCEDURAL BACKGROUND

       Ramirez, Texas prisoner #627467, was charged with aiding an attempt to escape by

stealing, possessing, and then selling a set of medical clothing he obtained while working in the

prison laundry. The relevant prison regulations define an attempt to escape as “possession of

contraband intended to be used in attempting to escape,” and contraband as “clothes that are not

approved for an offender to have.”

       The accusing officer testified at the disciplinary hearing that Ramirez admitted to him that

he took the medical clothing from the prison laundry and sold it to Corey Hamilton, who later

sold the clothing to another inmate, Brooks, on whom the contraband clothing was eventually

found. Ramirez contradicted the officer’s testimony, and claimed that prison officials received

their information from an unnamed informant.

       After being found guilty by the disciplinary hearing officer, Ramirez received 30 days’

commissary restriction, 30 days’ cell restriction, 15 days’ solitary confinement, and loss of 730

days of good-conduct time. Ramirez exhausted his administrative remedies through the prison

grievance procedure and subsequently filed a federal habeas petition.

       Ramirez alleged in his petition that prison authorities received false information from a

confidential informant, and that neither he, Hamilton, nor Brooks had tried to escape. He also

alleged that there was no evidence to support a finding of guilt because the medical clothing was

not found in his possession, and there was no written confession acknowledging that he had ever

possessed the clothing. The government responded that the incident report and the accusing

officer’s testimony were sufficient to support a finding of guilt.


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       Both parties moved for summary judgment and the magistrate judge granted habeas relief

on Ramirez’s claim that there was no evidence to support the finding of guilt. The government

timely appealed.

                                                 II.

                                    STANDARD OF REVIEW

       We review de novo whether there was any evidence to support a prison disciplinary

board’s finding. Hudson v. Johnson, 

, 535 (5th Cir. 2001). We need not examine the

entire record, independently assess the credibility of witnesses, or weigh the evidence, but instead,

the relevant question is whether there is any evidence in the record to support the conclusion

reached by the disciplinary board. Superintendent, Massachusetts Correctional Inst. v. Hill, 

, 455-56 (1995).

                                                 III.

                   EVIDENCE SUPPORTING DISCIPLINARY CONVICTION

       By requiring that all evidence from the prison disciplinary hearing bear a certain indica of

reliability, the magistrate judge determined that there was no evidence that Ramirez aided an

attempt to escape. Federal courts cannot, however, make independent determinations or weigh

the evidence. 

.

       The court below based its ruling on Broussard v. Johnson, 

(5th Cir. 2001), in

which a prisoner was granted habeas relief from a conviction for attempting to escape. In that

case, bolt cutters were found in a common area and prison officials received information that the

inmate was going to try to escape. 

The accusing officer who testified at the hearing

had not spoken to the informant. 

concluded that Broussard’s right to process had


                                                 -3-
been violated because neither the confidential informant, nor a credibility witness, testified at the

hearing, and because the bolt cutters had been found in a common area accessible by many

inmates. 

        This case is distinguishable though, because the accusing officer testified that Ramirez

admitted to him that he stole, possessed, and then sold the contraband clothing. Further, the

officer testified as to the medical clothing’s usefulness in an attempt to escape. Ramirez presented

no evidence at the hearing or in his petition that prison officials relied on an informant’s tip.

While the evidence is not overwhelming, there is some evidence, and therefore, the standard for

upholding the disciplinary conviction is met.

                                                  IV.

                                           CONCLUSION

        For the foregoing reasons, we reverse and remand.




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