Wall v. Kiser

21 F.4th 266

Gary WALL, Petitioner - Appellant,

v.Warden Jeffrey KISER, Respondent - Appellee.

No. 19-6524

United States Court of Appeals, Fourth Circuit.

Argued: September 21, 2021

Decided: December 27, 2021

ARGUED: Lauren Elizabeth Bateman, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellant. Jessica Merry Samuels, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF: Erica Hashimoto, Director, Nicolas Sansone, Supervising Attorney, Nicholas Kennedy, Student Counsel, Samuel Ruddy, Student Counsel, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellant. Mark R. Herring, Attorney General, Victoria N. Pearson, Deputy Attorney General, Richard C. Vorhis, Senior Assistant Attorney General, Toby J. Heytens, Solicitor General, Martine E. Cicconi, Deputy Solicitor General, Michelle S. Kallen, Deputy Solicitor General, Zachary R. Glubiak, John Marshall Fellow, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

Before GREGORY, Chief Judge, and NIEMEYER and RICHARDSON, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Richardson joined. Judge Gregory wrote a dissenting opinion.

NIEMEYER, Circuit Judge

In his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254, a state-convicted inmate seeks to apply retroactively a federal procedural rule first announced in 2019 to overturn the result of his state disciplinary proceedings that took place in 2015. The question that this appeal presents is whether the principles articulated in Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), prohibiting the retroactive application of procedural rules on federal collateral review, apply to bar the inmate's effort in the circumstances of this case.

While serving a sentence at the Red Onion State Prison in Pound, Virginia, Gary Wall was charged in 2015 with assaulting two corrections officers during an altercation. At the hearings on those charges, the hearing officers denied Wall's requests that they review the surveillance video of the incident. After denying Wall's requests, the hearing officers found Wall guilty of the assault charges and stripped him of a total of 270 days accrued good conduct sentence credits. Wall filed administrative appeals, which were unsuccessful, and then filed a petition for a writ of habeas corpus in the Supreme Court of Virginia, alleging that the hearing officers denied him due process of law in refusing to review the video footage. The court, however, ruled that it lacked jurisdiction to review a decision resulting in a loss of good conduct credits and dismissed Wall's petition. Wall did not seek review in the U.S. Supreme Court, but he did file a separate action under 42 U.S.C. § 1983 that also challenges the prison hearings, and that case is still pending.

Wall filed this federal petition for habeas relief under § 2254, claiming that the state prison hearing officers denied him the constitutional right to due process recognized in Wolff v. McDonnell , 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), when they denied his multiple requests that they view the surveillance video of the altercation. Applying the then-current law, the district court denied Wall relief and dismissed his petition by order dated March 31, 2019. The court stated that although Wall had, in accordance with Wolff , a qualified due process right to present documentary evidence at the prison hearings, surveillance footage was, under the applicable law, "outside the definition of ‘documentary evidence.’ " From the district court's order, Wall filed this appeal.

In 2019, while Wall's appeal was pending, we issued our decision in Lennear v. Wilson , where we held "for the first time in this circuit" that, under Wolff , inmates subject to a loss of good time credits "have a qualified right to obtain and compel consideration of video surveillance evidence." 937 F.3d 257, 273–74 (4th Cir. 2019) (emphasis omitted).

Wall now argues that he is entitled to the retroactive application of Lennear to his 2015 disciplinary proceedings and that the general principles prohibiting retroactive application of new procedural rules on collateral review, as recognized in Teague , do not apply to the circumstances in this case. We conclude, however, that the retroactivity principles stated in Teague do indeed apply and that they preclude retroactive application of Lennear to this case. Accordingly, we affirm.

I

In August 2015, while incarcerated at the Red Onion State Prison with a sentence imposed in 1995 of over 40 years' imprisonment, Gary Wall was involved in an altercation with two corrections officers, Elijah Rasnick and Jason Hicks, resulting in injury to both Wall and the officers. Wall was charged with disciplinary offenses, including aggravated assault against both Rasnick and Hicks. Hearings on the charges were conducted separately as to each officer.

Before and during the hearings, Wall repeatedly — both orally and in writing — requested that the hearing officers review surveillance video of the underlying incident, and those requests were denied. On his written request, which was made on a prison form, the hearing officers responded by checking a box stating that "information will not be obtained due to being from an outside source, restricted for security reasons such as video and audio recordings, information is not written documentation, or is otherwise restricted to the offender." (Cleaned up). At the hearing on the Rasnick charge, the hearing officer did receive testimony summarizing the video from Captain Still, an officer who had investigated the incident. Wall was found guilty at each hearing, and a total of 270 days of his accrued good conduct credits were revoked.

Wall appealed both decisions administratively, claiming that the hearing officers erred in refusing to review the video. Both the Warden and the Regional Administrator for the Virginia Department of Corrections denied relief.

After exhausting his administrative appeals, Wall filed a pro se petition for a writ of habeas corpus in the Virginia Supreme Court, alleging due process violations and seeking the restoration of his good conduct credits. The court, however, dismissed the petition, ruling that it lacked habeas jurisdiction over "institutional proceeding[s] resulting in loss of good conduct ... credit." In reaching its judgment, the court relied on its decision in Carroll v. Johnson , 278 Va. 683, 685 S.E.2d 647, 652 (2009), and quoted Carroll 's language that habeas relief is available only when an order will "directly impact the duration of a petitioner's confinement." The Virginia Supreme Court's ruling thus implied that an order resulting in the loss of good conduct credits does not impact an inmate's confinement. Wall did not seek to challenge that ruling in the U.S. Supreme Court. Instead, he filed a second habeas petition in the Virginia Supreme Court, which was again denied based on that court's earlier ruling. Thus, with the Virginia Supreme Court's judgment, Wall's state proceedings came to an end.

Wall then filed this federal habeas petition under § 2254, contending that the state hearing officers' failure to review the surveillance video violated his right to procedural due process, as articulated in Wolff . In Wolff , the Supreme Court held that an inmate at a disciplinary proceeding at which good conduct credits are at stake has a procedural due process right to "call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals." 418 U.S. at 566, 94 S.Ct. 2963. Wall also submitted an affidavit averring that he had gained access to the surveillance video when state criminal charges were filed against him in connection with the same incident and that the video supported his side of the case. According to Wall, when the video was brought to the attention of the Commonwealth, it dropped the criminal charges against him.

On the Commonwealth's motion, the district court dismissed Wall's § 2254 petition, explaining that surveillance footage was "clearly outside the definition of ‘documentary evidence,’ " as defined in Wolff , and therefore that the hearing officers had not violated Wall's right to procedural due process when they failed to review that footage.

After Wall appealed to this court, we issued our opinion in Lennear , holding in 2019 for the first time that "prison video surveillance evidence constitutes documentary evidence subject to the procedural due process protections recognized in Wolff . " 937 F.3d at 269. In light of Lennear , we granted a certificate of appealability in this appeal on the question of whether "the prison disciplinary hearings failed to comport with the Due Process Clause because the hearing officers failed to review the surveillance video of the incident," with directions to "address [the] decision in Lennear ..., and whether the retroactivity analysis announced in Teague ..., and its progeny, applies in this case." By order dated January 29, 2020, we also appointed counsel to represent Wall, and we have much appreciated their fine and professional work.

II

Teague and its progeny establish that while "new procedural rules apply to cases pending in trial courts and on direct review," they "do not apply retroactively on federal collateral review." Edwards v. Vannoy , ––– U.S. ––––, 141 S. Ct. 1547, 1562, 209 L.Ed.2d 651 (2021). Moreover, " Teague 's nonretroactivity principle acts as a limitation on the power of federal courts to grant ‘habeas corpus relief to ... state prisoner[s].’ " Beard v. Banks , 542 U.S. 406, 412, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004) (emphasis added) (quoting Caspari v. Bohlen , 510 U.S. 383, 389, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994) ).

In this appeal, Wall argues that while Lennear announced a new rule, Teague does not...