Dudley v. Connor

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 18, 2003
• Docket: 02-41058
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 17, 2003

Charles R. Fulbruge III Clerk No. 02-41058 Summary Calendar

GENE E. DUDLEY,

Petitioner-Appellant,

versus

N. L. CONNOR, Warden,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 5:01-CV-187 --------------------

Before JOLLY, JONES and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Gene E. Dudley, federal prisoner # 10961-045, commenced this

28 U.S.C. § 2241 action challenging, inter alia, a November 2,

2000, disciplinary hearing which found him guilty of disobeying

an order. As a result of this proceeding, Dudley lost 13 days of

good-time credit. The district court denied the petition as it

related to the disciplinary hearing and dismissed the petition as

to Dudley’s remaining claims for failure to exhaust his

administrative remedies. Dudley argues that the district court

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 02-41058 -2-

erred in denying his requests for discovery and an evidentiary

hearing. He contends that his due process rights were violated

when the disciplinary hearing officer cut off his staff

representative’s statement and did not allow him to present his

report. Dudley requests the appointment of counsel on appeal and

asks this court to take judicial notice of his petition for a

writ of mandamus.

Dudley admits that he was able to present testimony at the

disciplinary hearing and the witness that he requested testified.

Even assuming that the disciplinary hearing officer cut off his

staff representative before he finished making his statement,

Dudley’s conclusory allegations, which do not identify any

exculpatory information that the staff representative could have

provided, do not establish that he was not able to adequately

present his case at the disciplinary hearing. Therefore, he has

not stated a constitutional claim. See Wolff v. McDonnell, 418

U.S. 539, 564-66, 570 (1974). Likewise, Dudley’s assertion that

the district court erred in denying his motions for an

evidentiary hearing and discovery are without merit. See United

States v. Fishel, 747 F.2d 271, 273 (5th Cir. 1984). The

district court’s judgment is affirmed.

Dudley’s motions for judicial notice and for the appointment

of counsel are denied.

AFFIRMED; MOTIONS DENIED.