United States Court of Appeals Fifth Circuit F I L E D REVISED DECEMBER 29, 2005 UNITED STATES COURT OF APPEALS December 15, 2005 for the Fifth Circuit Charles R. Fulbruge III _____________________ Clerk

No. 04-20254 _____________________

GEORGE CLERON MORGAN,

Petitioner-Appellant,

VERSUS

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

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas _________________________________________________________________ (4:03-CV-1833)

Before JONES, DeMOSS, and OWEN, Circuit Judges.

DeMOSS, Circuit Judge:

George Cleron Morgan, Texas prisoner number 1125877, filed the

instant

habeas corpus petition to challenge a

prison disciplinary proceeding finding him guilty of assaulting an

officer with a non-serious injury resulting. The district court

granted Respondent’s motion for summary judgment, dismissed

Morgan’s petition, and denied a certificate of appealability

(“COA”). Morgan timely appealed the district court’s dismissal and

moved this court for a COA, which was granted in part and denied in

part on October 12, 2004. The two issues on which we granted a COA and that we must decide in this appeal are (1) whether the evidence

was sufficient to sustain Morgan’s disciplinary conviction and (2)

whether the district court erroneously construed the disciplinary

code. For the reasons stated herein, we reverse the district

court’s judgment denying habeas relief and remand with

instructions.

I.

Morgan is currently serving two lengthy sentences in the

custody of the Texas Department of Criminal Justice (“TDCJ”), one

for retaliation and the other for possession of cocaine with intent

to deliver. He does not contest the constitutionality of his state

court convictions or sentences. Instead, he challenges the

constitutionality of a prison disciplinary action taken against him

in which he lost good time credits.

On January 28, 2003, corrections officer Sergeant M. Hunt

(“Hunt”) stopped Morgan for inspection of an envelope Morgan was

carrying. During the inspection, Hunt took the envelope from Morgan

and ordered him to submit to a strip search. Morgan initially

refused to obey Hunt’s order but ultimately complied. After Hunt

completed the strip search, Morgan repeatedly demanded that Hunt

return his envelope, and when Hunt did not, Morgan charged Hunt and

hit Hunt’s left shoulder with his own. Officer Hunt subsequently

filed an offense report, accusing Morgan of a Level 1, Code 3.3

offense that included as an element assault resulting in a non-

serious injury, although the charging document indicated that the assault with which Morgan was charged resulted in no injury. The

disciplinary hearing officer found Morgan guilty of the charged

offense and prescribed a punishment of 45 days of recreation and

commissary restrictions, 42 hours of extra duty, 15 days of

solitary confinement, a reduction in his line class status from LI

to LIII, and the forfeiture of 180 days of earned good time

credits.

Morgan challenged the disciplinary proceeding by filing with

TDCJ a step one grievance on February 5, 2003 and a step two

grievance on March 3, 2003. Both grievances were ultimately denied.

Having exhausted the available state remedies, Morgan filed the

instant § 2254 habeas corpus petition in district court, arguing

that his right to due process was violated in a disciplinary action

taken by prison officials. Respondent filed for summary judgment,

and Morgan answered by filing both a response and his own motion

for summary judgment. The district court granted Respondent’s

motion for summary judgment, dismissed Morgan’s petition, and

stated that a COA would not issue. Morgan appealed to this court

and requested that we issue a COA. We granted Morgan’s request with

respect to two issues, but denied it as to the other three.1 Thus,

1 This Court lacks jurisdiction to consider issues on appeal that were not before the district court when it made its COA decision, and a COA will not issue with respect to an issue unless the petitioner makes a substantial showing of the denial of a constitutional right. Morgan v. Dretke, No. 04-20254 (5th Cir. Oct. 12, 2004) (order granting COA in part). Two of the five issues presented on appeal were not raised below, and we therefore denied the motion for a COA as to those claims. Id. Further, Morgan did not make the requisite showing with respect the issues on appeal are (1) whether the evidence was sufficient to

sustain Morgan’s disciplinary conviction and (2) whether the

district court erroneously construed the disciplinary code.

II.

Morgan argues that the evidence was insufficient to sustain

his disciplinary conviction because there was no evidence to show

that the officer he assaulted was injured. He also argues that the

district court erred by determining that the offender handbook in

question had no provision for disciplining an offender who assaults

an officer without injury resulting. On appeal, we review a

district court’s findings of fact for clear error and questions of

law de novo. Salazar v. Dretke,

(5th Cir. 2005).

Because we find in favor of Morgan with respect to both arguments,

we reverse and remand with instructions for the district court to

grant habeas corpus relief.

A.

Morgan’s sufficiency of the evidence argument amounts to a due

process challenge.2 It is well established that “‘[p]rison

to one of the five issues he appealed, so we also denied the COA as to that claim.

2 We note here for completeness’ sake that it is the protected liberty interest in good time credits that implicates due process concerns and that state law determines whether good time credits constitute a protected liberty interest in a given state. Hudson v. Johnson,

(5th Cir. 2001). Although we have not decided whether good time credits (more specifically, Texas’s mandatory supervision scheme for earned good time credits) constitute a protected liberty interest under current Texas law, we need not address the issue here because Respondent waived the issue by failing to raise it either in the disciplinary proceedings are not part of a criminal prosecution,

and the full panopoly of rights due a defendant in such proceedings

does not apply.’” Broussard v. Johnson,

(5th Cir.

2001) (quoting Wolff v. McDonnell,

(1974)). For

example, a prisoner does not have “a due process right to

confrontation or cross-examination during prison disciplinary

proceedings.”

However, there are some rights that are

nonetheless protected, including the right not to suffer an adverse

disciplinary decision absent sufficient proof: “due process does

require, at a minimum, that there be ‘some evidence’ in the record

to support the disciplinary decision.”

(citing Superintendent,

Mass. Corr. Inst. v. Hill,

(1985)).

The “some evidence” standard is extremely deferential — we

have found a single report or testifying witness sufficient to

support an adverse disciplinary decision. See, e.g., Hudson v.

Johnson,

(5th Cir. 2001) (finding one officer’s

incident report sufficient); Smith v. Rabalais,

(Former 5th Cir. 1981) (finding “unsupported and generalized

testimony based entirely on information from an unidentified prison

informant” sufficient). However, it is not the quantum or quality

of evidence that is at issue in this case. This case is unique

among disciplinary hearing cases in this Circuit in that the

evidence in the record does not fit the charge.

district court or on appeal.

Thus, we assume that Morgan has a constitutional interest in his good time credits and that the loss of those credits implicates due process concerns. The Texas prison disciplinary rules, which are published by

the Correctional Institutions Division of the TDCJ, stated at the

time of Morgan’s disciplinary conviction that “assaulting an

officer, or any other person who is not an offender, without a

weapon, which results in a non-serious injury” was a Code 3.3

offense. TEX. DEP’T CRIMINAL JUSTICE, DISCIPLINARY RULES AND PROCEDURES FOR

OFFENDERS 24 (rev. ed. Sept. 2003) (emphasis added). A Code 3.3

offense, therefore, required as an element that the officer suffer

a non-serious injury.3 There is no question that there is “some

evidence” to support the factual conclusion in this case, that

Morgan “assaulted Sgt. M. Hunt by charging [Hunt] with his left

shoulder. The assault did not result in any injuries.” (R. at 217.)

But that factual conclusion, without more, cannot support a finding

that Morgan committed a Code 3.3 offense, any more than it could

support a finding that Morgan committed an assault with a weapon or

attempted escape. No one contends that Hunt was injured. In fact,

both sides agree that there was no injury to Hunt. Because there is

no evidence to support a requisite element of the disciplinary

offense, there is insufficient evidence to support the adverse

disciplinary decision.

B.

3 The Texas prison disciplinary rules now state that “assaulting an officer, or any other person who is not an offender, without a weapon, which results in a non-serious injury or no injury” is a Code 3.3 offense. TEX. DEP’T CRIMINAL JUSTICE, DISCIPLINARY RULES AND PROCEDURES FOR OFFENDERS 23 (rev. ed. Jan. 2005) (emphasis added). Injury is no longer required. Morgan also prevails on his second argument — that the

district court erred by determining that the offender handbook in

question had no provision for disciplining an offender who assaults

an officer without injury resulting. The court below purported to

take judicial notice that the Texas prison disciplinary rules “do[]

not include a specific offense of assault against an officer where

no injury results” and concluded that Texas’s disciplinary action

deserved to be upheld because “there is no question that a prison

should be able to impose severe disciplinary sanctions on a

prisoner who assaults an officer, even with no injury resulting.”

(R. at 213.) The court therefore interpreted Code 3.3 to include an

assault that results in “no injury.”

The district court reached this decision by analogizing

Texas’s prison disciplinary rules to Texas state law, which does

not require an injury for a conviction of assault. But the

definition of assault under Texas state law is irrelevant to this

case. Although it is true that Texas Penal Code § 22.01(a)(3) only

requires intentional or knowing physical contact, not an injury,

Morgan was not convicted under § 22.01(a)(3); instead, he was found

guilty of committing an assault with the additional element of a

non-serious injury.

Moreover, the district court viewed the lack of a “no injury”

provision in Code 3.3 as an “oversight” and concluded that an

oversight in drafting the disciplinary rules “should not mean that

the Texas Department of Criminal Justice cannot appropriately punish inmates for [assaulting an officer with no injury

resulting].” But Texas’s prison disciplinary rules do contain at

least one provision for punishing an inmate who assaults an officer

without injuring him. For example, it is a Level 2, Code 46 offense

for an inmate to make “unauthorized physical contact with any

person who is not an offender,” and it is a Level 1, Code 10

offense for an inmate to commit any felony under the laws of Texas

or the United States, one of which is assault in violation of Texas

Penal Code § 22.01(a)(3). TEX. DEP’T CRIMINAL JUSTICE, DISCIPLINARY RULES

AND PROCEDURES FOR OFFENDERS 25, 29 (rev. ed. Sept. 2003). In addition,

the disciplinary rules prohibit attempting, conspiring, or helping

others to engage in prohibited behavior. Id. at 22. However, no one

suggested that Morgan attempted to injure Hunt, and Morgan was not

charged with committing a Code 46 or a Code 10 offense.

Respondent contends that the mere fact that Morgan knew his

conduct was unlawful is sufficient to support his disciplinary

conviction. However, a Level 1 offense of “assaulting an officer

with no injury resulting” is a creation of the hearing officer and

the district court, and has no basis in the disciplinary rules.

Respondent lacked authority to punish Morgan under Code 3.3 for a

nonexistent offense.

Finally, Talib v. Gilley,

(5th Cir. 1998), a case

cited by Respondent for the proposition that prisons may punish

inmates as they see fit, is inapposite. In Talib, an inmate was

deprived of meals by a guard for failing to follow unwritten prison policies involving food distribution. Talib,

. This

Court held that prison policies would be entitled to deference if

they related to a legitimate penological interest and that actions

taken to enforce such policies would be given similar deference.

. Here, Morgan does not challenge the validity of

policies, written or unwritten, designed to protect penological

interests. No one argues that Code 3.3, or any other prison

disciplinary rule for that matter, is invalid. Instead, this case

involves the sufficiency of the evidence presented at a formal

disciplinary proceeding that resulted in a loss of good time

credits, and a plain reading of the pre-2005 version of Code 3.3

makes it clear that infliction of a non-serious injury was required

as an element of the offense in question. The district court erred

in eradicating this element from the text of Code 3.3 and in

approving punishment of Morgan pursuant to Code 3.3 for a “no

injury” assault.

III.

Accordingly, we REVERSE the district court’s judgment denying

habeas relief and REMAND with instructions for the district court

to enter an order that TDCJ must either (1) provide Petitioner with

a new, constitutionally adequate hearing within ninety days of the

date of the district court’s order on remand, if TDCJ’s

disciplinary rules and Texas law provide for such a rehearing, or

(2) vacate Petitioner's disciplinary conviction and reinstate his

good time credits.