Gary Wall v. Jeffrey Kiser

• Court: Court of Appeals for the Fourth Circuit
• Decided: December 27, 2021
• Docket: 6524-19
• Status: Published

Opinion

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-6524

GARY WALL,

Petitioner - Appellant,

v.

WARDEN JEFFREY KISER,

Respondent - Appellee.

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Elizabeth Kay Dillon, District Judge. (7:17-cv-00066-EKD-RSB)

Argued: September 21, 2021 Decided: December 27, 2021

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.

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.

2 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 (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 (1974), when they denied his multiple requests that they

3 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

4 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, 685 S.E.2d 647, 652 (Va. 2009), and quoted Carroll’s language that

habeas relief is available only when an order will “directly impact the duration of a

5 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. 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.

6 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, 141 S. Ct. 1547, 1562 (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

(2004) (emphasis added) (quoting Caspari v. Bohlen, 510 U.S. 383, 389 (1994)).

In this appeal, Wall argues that while Lennear announced a new rule, Teague does

not apply because “[its] restrictions rest on finality and comity concerns raised when a

federal court upsets a final judgment no longer subject to direct review — considerations

not implicated by judicial review of a prison administrative decision. Where, as here, a

7 prisoner’s first and only opportunity for judicial review of such a decision is federal habeas

corpus, the habeas court must apply binding precedent like Lennear.” This argument

implies, as Wall states explicitly, that his federal habeas petition does not involve collateral

review but instead “direct judicial review” not subject to the Teague retroactivity

principles.

We conclude that Wall’s argument lacks both factual and legal support.

A

At the outset, we note that Wall is a state-incarcerated inmate who, pursuant to a

final judgment of state courts, is serving a sentence of over 40 years. And by virtue of state

law, he can obtain a reduction of that sentence as a result of good conduct while in prison.

See Va. Code Ann. § 53.1-202.2. But an inmate’s good conduct credits can also be revoked

for misconduct while in prison. See id. § 53.1-189. Prison conduct therefore can, and does,

affect an inmate’s sentence and thus the duration of his custody.

When good conduct credits are revoked, state procedure requires that the inmate be

given: (1) written notice, (2) a hearing, (3) the assistance of a staff member or fellow inmate

for his defense, (4) a written statement of reasons for the revocation, and (5) a right to

appeal administratively. See Va. Admin. Code § 15-40-833. And the administrative

decision may be reviewed judicially by filing a petition for a writ of habeas corpus in a

state circuit court or in the Virginia Supreme Court if the decision “impact[s] the duration

of the [inmate’s] confinement,” such as the loss of good conduct credits. Carroll, 685

S.E.2d at 652; see also Va. Code Ann. § 8.01-654.

8 In this case, Wall exhausted his state proceedings. He raised his objection to the

denial of his request to have the hearing officers view the video footage both during his

prison hearings and in his administrative appeals to the Warden and the Regional

Administrator. And upon failing to obtain relief through that process, he sought review

with his petition for a writ of habeas corpus in the Virginia Supreme Court. While that

court relied on Carroll to hold that it did not have jurisdiction to review Wall’s loss of good

conduct credits, it apparently failed to recognize that Carroll construed Virginia Code

§ 8.01-654 to authorize the review of a loss of sentencing credits. See 685 S.E. 2d at 649–

52. Carroll itself had relied on the federal habeas jurisprudence stated in Preiser v.

Rodriguez, 411 U.S. 475, 487 (1973), which held that habeas jurisdiction to review illegal

sentences includes review of revocations or forfeitures of good conduct sentencing credits

that extend an inmate’s sentence. See Carroll, 685 S.E. 2d at 651. The Virginia Supreme

Court in Carroll thus held:

Code § 8.01-654(A)(1) allows a petitioner to challenge the lawfulness of the entire duration of his or her detention so long as an order . . . will directly impact the duration of the petitioner’s confinement. Here, Carroll is “detained” for 13 years pursuant to his sentencing order, which includes the 288 days for which he is seeking credit. Thus, Carroll is “detained without lawful authority” within the meaning of the statute if his sentence, including the 288 days for which he seeks credit, is imposed without lawful authority.

685 S.E. 2d at 652. On Wall’s petition, the Virginia Supreme Court did not purport to

overrule Carroll; to the contrary, it cited it approvingly for support but then dismissed the

petition stating that it lacked jurisdiction over proceedings involving “[the] loss of good

conduct . . . credit.”

9 Thus, while the Virginia Supreme Court denied Wall habeas relief from the

administrative ruling, apparently misreading the decision on which it relied, Wall’s

petitions to that court exhausted state procedures, and his state case became final. It was

final in the sense that state courts had nothing further to do with respect to Wall’s claim for

relief from the revocation of his good conduct credits, and Wall had no other state court to

which to turn. Cf. Beard, 542 U.S. at 411; Riley v. Kennedy, 553 U.S. 406, 419 (2008)

(quoting Catlin v. United States, 324 U.S. 229, 233 (1945)) (defining “final judgments”).

In light of these procedural facts, Wall materially overstates his position when he

asserts that the federal district court was the “only opportunity for judicial review” of the

state administrative proceedings and that his habeas petition filed in the district court was

in effect an effort to obtain “direct judicial review” of those proceedings. His argument

fails to account for the fact that state habeas review in a state court was available even

though, in his case, the state court may have erred in not reaching the merits of his claim.

While the state court provided no relief, federal habeas relief was nonetheless available to

Wall, as authorized under 28 U.S.C. §§ 2241 and 2254. But in the circumstance where a

state court refuses to address a state inmate’s claims, federal habeas review is collateral to

the state proceedings and not a “direct review.” As the Supreme Court has specifically

pointed out,

Habeas corpus always has been a collateral remedy, providing an avenue for upsetting judgments that have become otherwise final. It is not designed as a substitute for direct review.

Teague, 489 U.S. at 305 (plurality opinion) (quoting Mackey v. United States, 401 U.S.

667, 682–83 (1971) (Harlan, J., concurring in part and dissenting in part)).

10 In short, Virginia made judicial relief available, even though no Virginia court

addressed the relief claimed. Wall’s assertion that the district court was Wall’s only

“opportunity” for judicial review is a misstatement.

B

Wall’s argument that federal habeas review in this case is “direct review” in which

new procedural rules apply is also not legally supportable. The syllogism he presents

begins with the premise that “new rules apply retroactively to cases ‘pending on direct

review or not yet final, with no exception.’” (Emphasis added) (quoting Teague, 489 U.S.

at 304–05). Wall then asserts that he “has not yet obtained a judicial ruling on his due

process claim that is final.” And thus — arguing that because he had “no prior opportunity

to obtain judicial review of a prison disciplinary decision” — he concludes that this federal

habeas proceeding is a direct review to which Lennear, as a new rule, applies.

Again, this argument overlooks the totality of the state proceedings. But more

importantly, it fails to consider that “habeas corpus always has been a collateral remedy”

in that it is a writ providing relief independent of all other process. Teague, 489 U.S. at

305 (plurality opinion) (cleaned up). The Supreme Court has defined collateral review

“according to its ordinary meaning” as “refer[ring] to judicial review that occurs in a

proceeding outside of the direct review process.” Wall v. Kholi, 562 U.S. 545, 560 (2011).

Kholi also reinforces the proposition that habeas corpus is a form of collateral review,

without making any distinction regarding the proceeding a court is reviewing. See id. at

11 552 (“[O]ur cases make it clear that habeas corpus is a form of collateral review. We have

used the terms habeas corpus and ‘collateral review’ interchangeably”).

Furthermore, the concept of habeas as collateral review is not limited to proceedings

that challenge the lawfulness of a prior judgment. The Supreme Court rejected any notion

that collateral review should “turn on whether the motion or application that triggers that

review is captioned as a part of the criminal case or as a separate proceeding.” Kholi, 562

U.S. at 556–59 (finding that collateral review includes a motion to reduce a sentence).

Furthermore, while federal habeas review in cases where state courts heard habeas claims

but failed to explain why they rejected the petition are “infrequent,” Tyler v. Hooks, 945

F.3d 159, 167 (4th Cir. 2019), cert. denied, 140 S. Ct. 2785 (2020), such federal habeas

proceedings do occur and are still collateral review, as they are proceedings outside of the

direct review process. Indeed, the Supreme Court has recognized that habeas corpus is a

broad, independent writ designed to address challenges to any illegal custody, whether “by

executive direction” or “by order of a court.” Preiser, 411 U.S. at 484; see also Fay v.

Noia, 372 U.S. 391, 408 (1963) (noting that at common law, the writ of habeas corpus

redressed “restraints contrary to fundamental law, by whatever authority imposed”

(emphasis added)).

While Wall’s petition for a writ of habeas corpus in the Virginia Supreme Court was

dismissed on jurisdictional grounds instead of being resolved on the merits, the federal

petition here nonetheless invoked a collateral procedure, as it was filed outside of the direct

review process. Wall’s argument that Teague does not apply because the federal habeas

corpus proceeding before us is a direct review of the state administrative proceedings is

12 simply untenable. That this is so is only reinforced by the fact that federal courts do not

directly review state administrative proceedings, just as they do not directly review state

court judgments. See Skinner v. Switzer, 562 U.S. 521, 531–32 (2011).

C

Wall also suggests, as a possible alternative argument, that “‘Teague has no

application’ at all to habeas petitions that, like Mr. Wall’s, ‘do not challenge the validity

of [criminal] convictions or sentences,’” quoting our decision in Plyler v. Moore, 129 F.3d

728, 735 n.9 (4th Cir. 1997). But he allows that we “need not address” that issue because

his federal habeas petition is the first review and therefore a direct review that is not

covered by Teague.

Since we reject Wall’s argument that the habeas proceeding before us is “direct

review,” we address Wall’s alternative argument and conclude that it does not advance his

position. As Plyler recognized in dictum, habeas is a collateral proceeding challenging the

legality of “convictions or sentences,” 129 F.3d at 735 n.9 (emphasis added), and that

statement, at that broad level, is an accurate one. Habeas is a writ independent of other

proceedings that at bottom affords a petitioner the opportunity to challenge his custody.

See Preiser, 411 U.S. at 484. And challenges to custody can be grounded on either the

illegality of the conviction giving rise to detention or the duration of his detention — his

sentence. The writ is thus functional for challenges to both convictions and sentences, as

summarily noted in Plyler.

13 Wall may nonetheless be suggesting that his habeas petition does not challenge the

duration of his detention — his sentence — but rather the revocation of good conduct

credits. But challenging the revocation of good conduct credits is indeed a challenge to the

duration of detention. This has been conclusively established, beginning with the Supreme

Court’s decision in Preiser. In Preiser, the Court held that since good conduct credits

affect the duration of detention, a challenge to their revocation falls within the heartland of

habeas corpus jurisdiction. The Court stated:

So, even if restoration of respondents’ good-time credits had merely shortened the length of their confinement, rather than required immediate discharge from that confinement, their suits would still have been within the core of habeas corpus in attacking the very duration of their physical confinement itself. It is beyond doubt, then, that the respondents could have sought and obtained fully effective relief through federal habeas corpus proceedings.

411 U.S. at 487–88. Thus, Plyler’s statement that “Teague has no application here because

the Inmates do not challenge the validity of their convictions or sentences,” 129 F.3d at

735 n.9, rightly implied that Teague does indeed apply to habeas corpus proceedings that

challenge a sentence, as Wall’s petition does in contending that his sentence was illegally

extended by 270 days.

At bottom, we conclude that Wall’s § 2254 petition is a federal collateral

proceeding, not direct review of a state administrative proceeding, and therefore Teague’s

principle that a new procedural rule does not apply retroactively on federal collateral

review governs.

14 III

To determine whether the requirements of Teague are satisfied in this case, we need

to determine (1) whether the state proceeding became “final”; (2) whether the Lennear rule

is a “new rule”; and (3) whether the new rule is “procedural.” See Edwards, 141 S. Ct. at

1554, 1562. We conclude that all are satisfied.

State convictions — or in this case, state orders extending a sentence — are final

“for purposes of retroactivity analysis when the availability of direct appeal to the state

courts has been exhausted and the time for filing a petition for a writ of certiorari has

elapsed or a timely filed petition has been finally denied.” Beard, 542 U.S. at 411 (quoting

Caspari, 510 U.S. at 390). For example, in Caspari, a defendant’s conviction and sentence

became final when a state court of appeals denied the petition for rehearing and the

defendant did not file a petition for a writ of certiorari. 510 U.S. at 390–91. Here, the

decision revoking 270 days of Wall’s accrued good conduct credits became final when

Wall exhausted his administrative appeals, as there was no direct appeal available in state

court. He then filed two state habeas petitions that were dismissed by the Virginia Supreme

Court. Wall did not file a petition for a writ of certiorari, and the time for doing so elapsed.

With that, his state habeas proceedings became final as well. Teague’s finality requirement

is thus readily satisfied here.

As to whether Lennear announced a new rule, we must determine whether it broke

“new ground or impose[d] a new obligation on the States or the Federal Government.”

Teague, 489 U.S. at 301 (plurality opinion). A rule is not new if “it was ‘dictated by

precedent existing at the time the defendant’s conviction became final.’” Edwards, 141

15 S. Ct. at 1555 (quoting Teague, 489 U.S. at 301). As to the Lennear rule, our opinion

recognized that “this Court, to date, has not addressed whether the universe of

‘documentary evidence’ subject to the due process protections recognized in Wolff

encompasses video surveillance evidence.” 937 F.3d at 268. Concluding that it does, we

stated that “we establish for the first time in this circuit that inmates at risk of being

deprived of a liberty interest, like good time credits, have a qualified right to obtain and

compel consideration of video surveillance evidence.” Id. at 273–74 (first emphasis

added); see also Tyler, 945 F.3d at 168 (noting that Lennear “made plain that we

established a prisoner’s right to compel review of video surveillance evidence ‘for the first

time in this circuit’” (cleaned up)). We conclude that Lennear was a new rule, and the

parties do not argue otherwise.

Finally, to complete the analysis, we need to determine if the new Lennear rule is

procedural because new criminal procedural rules “do not apply retroactively on federal

collateral review” — they only apply to cases that are “pending in trial courts and on direct

review.” Edwards, 141 S. Ct. at 1562. In explaining what constitutes a procedural rule,

Edwards stated that procedural rules alter “only the manner of determining the defendant’s

culpability.” Id. (quoting Schriro v. Summerlin, 542 U.S. 348, 353 (2004)). There can be

no doubt that Lennear’s new qualified right to obtain and compel consideration of video

surveillance evidence is procedural. It only alters the manner in which the State determines

a defendant’s culpability.

In sum, we conclude that the nonretroactivity instruction in Teague applies to the

circumstances here and that we therefore lack the power in this collateral proceeding to

16 apply Lennear’s new procedural rule to Wall’s state disciplinary hearings that concluded

some four years earlier.

IV

Wall argues on fairness grounds that a federal habeas court should provide him

judicial access to address his arguments on the merits because no state court has done so.

He states that his “habeas action challenges a detention decision never before judicially

examined, let alone approved” and complains that the “State seeks to insulate its prison

disciplinary decisions from due process scrutiny in any court.” He argues that because

“federal habeas is meant to ‘preserv[e] for the state prisoner an expeditious federal forum

for the vindication of his federally protected rights, if the State has denied redress,’” Teague

cannot be read to bar such access. (Quoting Preiser, 411 U.S. at 498).

This argument, however, is belied by the fact that federal habeas procedure is indeed

available to provide inmates such as Wall relief even when there is no available corrective

process at the state level. See 28 U.S.C. § 2254(b)(1)(B)(i) (providing that federal habeas

relief may be granted when “there is an absence of available State corrective process”).

The issue is not whether a federal habeas court is available to him, but rather whether a

federal habeas court considering Wall’s claims can give Wall the benefit of a new

procedural rule adopted four years after his state hearings concluded. Under Teague, the

answer is no. Otherwise, the federal habeas court is authorized to consider any other

argument challenging the legality of his state detention. Wall’s fairness argument thus

ultimately reduces to a critique of the fairness of the Teague rule itself.

17 But the Teague rule is both fair and necessary to our system of justice. In that

system, defendants are convicted of misconduct and incarcerated under the procedural

rules then in effect. Over time, those procedural rules are changed, often for the benefit of

defendants. When a criminal or disciplinary proceeding against a defendant is ongoing

when a procedural rule changes, we give the defendant the benefit of that new rule. But

when the new procedural rule is made after the defendant’s proceedings are completed, the

defendant should not expect a redo to apply the new rule. The policies for this are

compelling.

The principal considerations focus on the finality of decisions, the integrity of the

judicial process, and comity with respect to state process. See, e.g., Linkletter v. Walker,

381 U.S. 618, 636–37 (1965). In Linkletter, the Court noted that applying new procedural

rules retroactively could “tax the administration of justice to the utmost” by requiring new

hearings when evidence had long since been lost and witnesses have become unavailable.

Id. at 637. Indeed, in Edwards, the Court observed that the principle of finality is “essential

to the operation of our criminal justice system.” 141 S. Ct. at 1554. Not only would

reopened proceedings tax the system of justice with the potential for countless hearings

with each new change to a procedural rule, but subsequent hearings could suffer from “lost

evidence, faulty memory, and missing witnesses,” to all parties’ detriment. Id. (quoting

Allen v. Hardy, 478 U.S. 255, 260 (1986) (per curiam)). As Teague stated, “No one, not

criminal defendants, not the judicial system, not society as a whole is benefited by a

judgment providing a man shall tentatively go to jail today, but tomorrow and every day

thereafter his continued incarceration shall be subject to fresh litigation.” Teague, 489 U.S.

18 at 309 (plurality opinion) (quoting Mackey, 401 U.S. at 691 (Harlan, J., concurring in part

and dissenting in part)).

The Supreme Court has also recognized that the application of new procedural rules

on collateral review would continually force “the States to marshal resources in order to

keep in prison defendants whose trials and appeals conform to then-existing constitutional

standards.” Beard, 542 U.S. at 413 (quoting Teague, 489 U.S. at 310). To put it “simply,

the ‘costs imposed upon the States by retroactive application of new rules of constitutional

law on habeas corpus thus generally far outweigh the benefits of this application’” and also

for this reason the Supreme Court “has repeatedly stated that new rules of criminal

procedure ordinarily do not apply retroactively on federal collateral review.” Edwards,

141 S. Ct. at 1555 (quoting Sawyer v. Smith, 497 U.S. 227, 242 (1990)). And particularly

“in the context of disciplinary proceedings, where less is generally at stake for an individual

than at a criminal trial, great weight should be given to the significant impact a retroactivity

ruling would have on the administration of all prisons in the country” and on “the reliance

prison officials placed, in good faith, on prior law not requiring such procedures,” taking

into consideration the “burden on federal and state officials.” Wolff, 418 U.S. at 574.

Finally, the Court has noted that without finality, the criminal law is deprived of

much of its deterrent effect. The fact that life and liberty are at stake in criminal

prosecutions “shows only that conventional notions of finality should not have as much

place in criminal as in civil litigation, not that they should have none.” Teague, 489 U.S.

at 309 (plurality opinion) (quoting Friendly, Is Innocence Irrelevant? Collateral Attacks

on Criminal Judgments, 38 U. Chi. L. Rev. 142, 150 (1970)).

19 The criminal justice system must do its best at the time of each defendant’s

proceeding by complying with the then-existing rules of procedure. But no proceeding is

ever perfect, and applying new procedural rules retroactively would not make proceedings

perfect. Indeed, applying new procedural rules retroactively would serve to make criminal

process less perfect.

These policy concerns are implicated in the case before us. Wall was charged with

assault of two corrections officers, and the prison hearings on those disciplinary charges

were conducted in compliance with due process as it was then understood. After

conducting the hearings, the Commonwealth provided Wall with appeals to the Warden

and to the Regional Administrator, as well as the opportunity to file a habeas petition in a

Virginia court. Moreover, to address his dissatisfaction with that state process — at least

to the extent that it could be claimed to have violated the Constitution or federal law — he

could obtain collateral review in a federal court pursuant to 28 U.S.C. §§ 2241 and 2254.

But what he cannot do is claim in federal court the benefit of a new procedural rule that

was not in effect at the time he pursued the state process.

The order of the district court denying Wall habeas relief is affirmed.

AFFIRMED

20 GREGORY, Chief Judge, dissenting:

Gary Wall was charged with institutional violations arising from a physical

altercation with two corrections officers that left all three men injured. Despite conflicting

accounts as to what occurred, the institution’s hearing officers repeatedly denied Wall’s

requests that they review surveillance video of the incident. Instead, relying on evidence

of the officers’ injuries and the testimony of corrections officers—one of whom was not

involved in the altercation but claimed to have reviewed the video—the hearing officers

found that Wall had assaulted the corrections officers as alleged and stripped him of 270

days (nearly nine months) of accrued good-time credit.

But Wall later gained access to the video footage when he was charged criminally

in state court for the alleged assaults. In his sworn affidavit, he avers that the video

“clearly” demonstrates that he “never threw any punches at either officer as alleged.” J.A.

93. According to Wall, the video also reveals that Wall did not cause the eye injury

suffered by one of the officers; it was instead the result of the officer’s “head-to-head

collision” with another officer while Wall was “laying face-down, fully restrained in

handcuffs and shackles.” Id. Wall asserts that after reviewing the video evidence the

county prosecutor declined to prosecute the criminal charges lodged against him. J.A. 94.

No court has addressed on the merits Wall’s claim that the hearing officers’ refusal

to review potentially exculpatory video evidence violated his Fourteenth Amendment due

process rights. But before we can reach the substance of Wall’s claim, this Court must

determine the applicability of Teague v. Lane, 489 U.S. 288 (1989), and its retroactivity

analysis to Wall’s case. Simply stated, if Teague applies, Wall cannot benefit retroactively

21 from the Court’s favorable decision in Lennear v. Wilson, 937 F.3d 257 (4th Cir. 2019),

where this Court held that prisoners have a qualified due process right to obtain and present

surveillance video evidence in prison disciplinary proceedings.

I conclude that Teague does not preclude federal habeas review of Wall’s claim.

Teague’s prohibition on the retroactive application of new rules of criminal procedure rests

on finality and comity concerns not implicated by judicial review of prison administrative

decisions. Here, Wall’s first and only true opportunity for judicial review on the merits

was on federal habeas review. Accordingly, his federal habeas petition is, in essence,

direct, not collateral, review and not subject to Teague’s retroactivity principles. And

applying retroactively the new procedural rule established in Lennear to the record now

before this Court, I conclude that Wall was denied due process when the hearing officers

refused to review video evidence of the altercation without any penological justification

for doing so.

A.

Teague v. Lane sets out rules about whether and when a new constitutional rule may

be applied in habeas cases. The Commonwealth argues that Teague applies to all habeas

cases, including Wall’s. Wall contends that Teague’s application is limited to

postconviction habeas cases where prisoners have had the opportunity to litigate their

claims to final judgment in state court. In other words, Teague applies to judicially final

cases, not administratively final ones. Further, Wall argues that because the Virginia

Supreme Court declined to consider his case on the merits and thus offered no opportunity

for review, his federal habeas petition does not involve collateral review but instead “direct

22 judicial review” not subject to Teague’s retroactivity principles. I agree with Wall that

Teague does not bar federal courts from retroactively applying new rules of criminal

procedure on direct review of prison administrative decisions, and thus, under the unique

procedural posture of this case, where the state court did not consider Wall’s claim on the

merits, Teague does not prevent this Court from finding a violation of Wall’s due process

rights.

In Teague, the Supreme Court explained that new rules apply retroactively to cases

“pending on direct review or not yet final, with no exception.” Teague, 489 U.S. at 304–

05 (quoting Griffith v. Kentucky, 479 U.S. 314, 328 (1987)). When a court has entered

final judgment and no opportunities for appellate or certiorari review remain, Teague says

that finality and comity considerations generally bar the application of new rules on

collateral review of that final judgment. See id. at 308–10. But while Teague generally

restricts the retroactive application of newly announced rules of criminal procedure, its

rationale is based on finality and comity concerns that arise if a court were to overturn a

final judgment no longer subject to direct review. A careful analysis of the facts in Wall’s

case demonstrates that neither circumstance is present here. His case involves judicial

review of a prison administrative decision where Wall has not yet obtained a final judicial

ruling on his due process claim, and where federal habeas corpus is Wall’s first and only

opportunity for judicial review of the administrative decision on the merits.

1.

Fourth Circuit precedent casts doubt on whether Teague is a natural fit in the prison

disciplinary context since prison administrators’ unreviewed decisions are not those of

23 courts and do not implicate comity concerns. In Tyler v. Hooks, 945 F.3d 159, 167 (4th

Cir. 2019), the Fourth Circuit held that AEDPA 1 deference does not apply in prison

disciplinary cases because prison hearing officers and disciplinary systems are not “courts”

for purposes of the federal habeas statute. And in Hamlin v. Warren, 664 F.2d 29 (4th Cir.

1981), the Fourth Circuit drew a distinction between “attacks upon administrative actions

affecting the fact or duration of sentence service” and “attack[s] upon the validity of a

judgment of conviction.” Id. at 31. The Court noted that “all of the reasons underlying the

rule of comity are present in [an attack on the validity of a conviction] while none are

present, or at least not highly visible, in controversies over good time credits.” Id. It found

that comity interests are not implicated where no state court judgment is involved. Id.

Even more directly, in Plyler v. Moore, 129 F.3d 728 (4th Cir. 1997), this Court

noted that, where the state had waived a Teague argument as it applied to a group of South

Carolina prisoners challenging aspects of a furlough program through habeas, Teague had

no application in any event “because the [i]nmates do not challenge the validity of their

convictions or sentences.” Id. at 735 n.9 (citing O’Dell v. Netherland, 521 U.S. 151, 156

(1997) (explaining that the Teague doctrine applies when a prisoner seeks to overturn his

state conviction or sentence); Helton v. Fauver, 930 F.2d 1040, 1047 n.11 (3d Cir. 1991)

(concluding that Teague did not apply to an Ex Post Facto challenge because the challenge

1 The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) specifically limits habeas review where a claim has been “adjudicated on the merits in State court proceedings.” 28 U.S.C. § 2254(d). 24 “does not implicate the policy favoring the finality of judgments that was at issue in

Teague”).

Based on our Circuit’s precedent, the Majority’s concerns regarding comity and

judicial finality are misplaced in the narrow context that this case presents. Teague is

simply a strange fit for this kind of non-conviction habeas claim. Here, there was no

judicial proceeding at all, nor any resulting conviction. Nothing that occurs in a prison

disciplinary hearing will ever affect the fundamental fairness of the underlying conviction,

because the two circumstances are independent. Moreover, the Majority fails to establish

that Teague applies outside the conviction context; it cites no cases holding that Teague

applies beyond habeas cases challenging final criminal convictions and judicially-imposed

sentences.

2.

The Majority’s conclusion that the application of Teague bars Wall’s federal habeas

claim is also rooted in its finding that Wall had the opportunity for review in state court.

But Wall’s federal habeas petition is his first and only true opportunity for judicial review.

Wall first sought habeas review of his claim in state court. But the Virginia Supreme

Court found that it lacked jurisdiction over institutional proceedings resulting in the loss of

good time credit, based in part on its decision in Carroll v. Johnson, 685 S.E.2d 647 (Va.

2009), where that court held that habeas relief is available only when it “directly impact[s]

the duration of a petitioner’s confinement.” Id. at 652. The Majority acknowledges that

in denying Wall’s request for habeas relief the Virginia Supreme Court failed to recognize

that Carroll actually authorized the review of the loss of good time credits. See Maj. Op.

25 9. Indeed, the Virginia Supreme Court’s misinterpretation and misapplication of its own

precedent ultimately denied Wall consideration of his claim on the merits.

Nevertheless, according to the Majority, where a state court refuses to address a

state inmate’s claims—even in error—federal habeas review is collateral to a state

proceeding and is not a “direct review.” The Majority concludes that Wall “overstates his

position when he asserts that the federal district court was the ‘only opportunity for judicial

review’ of the state administrative proceedings and that his federal habeas petition filed in

the district court was in effect ‘direct judicial review’ of those proceedings.” Maj. Op. 10.

Although the state court “provided no relief,” the Majority finds it is enough that “state

habeas review in a state court was available even though, in [Wall’s] case, the state court

may have erred in not reaching the merits of his claim.” Maj. Op. 10. Despite conceding

that Wall was improperly denied judicial review and thus “no Virginia court addressed the

relief claimed,” the Majority has determined that “Virginia made judicial relief available,”

and thus Wall’s federal habeas petition was not “Wall’s only opportunity for judicial

review.” Maj. Op. 11. The Majority has created its own standard without supporting

authority. But making “judicial review available” is simply not the procedural equivalent

of “opportunity for judicial review,” particularly where that opportunity was improperly

denied, nor does it satisfy procedural due process.

As the district court recognized, a claim is not “adjudicated on the merits” when a

state court refuses to reach the merits and instead dismisses for lack of jurisdiction.

Virginia provides no judicial review of good-time credit revocations, and as this Court has

recognized, a current prisoner like Wall “may challenge the revocation of good-time

26 credits” in federal court “only by way of habeas corpus.” See Dilworth v. Corpening, 613

F. App’x 275, 275 (4th Cir. 2015) (citing Preiser v. Rodriguez, 411 U.S. 475, 500 (2011)).

Thus, when federal habeas corpus provides the only judicial means to challenge an

administrative decision, a habeas court may retroactively apply new law because the court

“effectively act[s] as if [it] were reviewing the issue on direct appeal,” Alvarenga-

Villalobos v. Ashcroft, 271 F.3d 1169, 1172 (9th Cir. 2001), and so must apply existing

rules of law regardless of when they were announced. See Griffith, 479 U.S. at 326. Under

these principles, Teague does not bar this Court from applying Lennear to Wall’s habeas

petition because his claim, in essence, is on direct review.

Contrary to the Majority’s concern, a ruling in favor of Wall would not open the

floodgates to other litigation because only those cases by custodial prisoners who raise the

same preserved issues, arising in the same procedural posture pre-Lennear, would be

affected. Moreover, the procedural posture of Wall’s case is identical to that which will be

brought by prisoners in the future post-Lennear, with the exception of its timing. In other

words, a prisoner unfairly denied access to video evidence in a disciplinary proceeding

today will face the same path to this Court that Wall took. Given Virginia’s stance on the

scope of its habeas jurisdiction, there is no intervening party apart from the prison itself

that could correct the problem before it arrives in federal court.

27 I conclude, therefore that Teague’s retroactivity principles do not apply in Wall’s

case, and thus do not preclude retroactive application of Lennear. 2 We turn then to the

application of Lennear to the facts and circumstances of Wall’s claim.

B.

Federal courts have long recognized that the revocation of prisoners’ earned good-time

credits implicates their procedural due process rights. Wolff v. McDonnell, 418 U.S. 539,

557 (1974).

[T]he State having created the right to good time and itself recognizing that its deprivation is a sanction authorized for major misconduct, the prisoner’s interest has real substance and is sufficiently embraced within Fourteenth Amendment “liberty” to entitle them to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure [sic] that the state-created right is not arbitrarily abrogated.

Id. This Court has held that Wolff grants prisoners at risk of being deprived of a liberty

interest, such as good time credits, a qualified right to obtain and present video surveillance

evidence in disciplinary proceedings. Lennear, 937 F.3d at 262. Hearing officers are

required to review the video evidence or establish a case-specific penological justification

for refusing to do so. Id. at 272. In Wall’s case, the hearing officers did neither.

2 Wall argues that even if Teague bars the application of Lennear to his case that he is nevertheless entitled to habeas relief. In Lennear, this Court, without any precedent squarely dictating the outcome, relied on “existing—and controlling—Supreme Court and Fourth Circuit case law” to find in favor of the petitioner. 937 F.3d at 274. Wall maintains that without relying on Lennear as binding precedent, this Court could, because Lennear addressed a due process issue nearly identical to the issue presented in this case, rely on the “same body of controlling precedent underpinning Lennear’s holding” and find in Wall’s favor. Appellant’s Br. 21–22. Given that Teague’s retroactivity principles do not bar the application of Lennear to Wall’s case, this Court need not address this alternative argument. 28 There is no dispute that Wall’s hearing officers revoked his good-time credits after

rejecting his account of the incident and refusing his repeated requests—both oral and in

writing—to review the surveillance video that he maintained would corroborate his

testimony. Accordingly, the hearing officers were required to provide a penological

justification for their refusals. The Commonwealth demonstrates a penological interest

that justifies denying access to video surveillance footage where it “establishes that

providing the inmate with access to such evidence would be ‘unduly hazardous to

institutional safety or correctional goals.’” Id. at 270. This is a case-specific inquiry where

the Commonwealth bears the burden of proof. Id.

On this record, the Commonwealth has not met its burden. At Wall’s first hearing,

his request for review of the video footage was denied because a corrections officer testified

as to its contents. At his second hearing, the hearing officer denied the request for no

apparent reason. These reasons (or the lack thereof) fail to provide the required case-

specific penological justification. “Courts repeatedly have found procedural due process

violations when hearing officers decline to consider video surveillance evidence—or other

forms of documentary evidence—without offering a constitutionally cognizable

justification for refusing to do so.” Id. at 272.

As examples of these “procedural due process violations,” this Court has cited

Howard v. United States Bureau of Prisons, 487 F.3d 808 (10th Cir. 2007), and Piggie v.

McBride, 277 F.3d 922 (7th Cir. 2002). In Howard, a hearing officer refused to watch

videotape evidence on the grounds that it would be “‘needlessly cumulative’ of staff

reports.” Id. at 814. We held that

29 the Tenth Circuit rightly reasoned that if prison officials could refuse to review documentary evidence—like the videotape evidence at issue—simply because it might prove “cumulative” of statements in staff reports, then inmates, who necessarily face a “credibility problem” in disciplinary proceedings, would be effectively deprived of potentially critical “evidence contradicting statements of prison staff.”

Lennear, 937 F.3d at 272 (quoting Howard, 487 F.3d at 814)). The Howard court also

reasoned that the hearing officer “could not possibly have known the videotape was

needlessly cumulative without looking at it.” Howard, 487 F.3d at 814. And in citing

Piggie, this Court recognized that hearing officers “may not arbitrarily refuse to consider

[potentially] exculpatory evidence simply because other evidence in the record suggests

guilt.” Lennear, 937 F.3d at 272 (quoting Piggie, 277 F.3d at 925).

And certainly, this Court’s decision in Lennear itself establishes that accepting a

corrections officer’s version of contested events while refusing repeated requests to review

surveillance video without a security or correctionally-related rationale has due process

implications. This Court held not only that “prison surveillance evidence constitutes

documentary evidence subject to the procedural due process recognized in Wolff,” but also

that access to such evidence is “an essential aspect of the inmate’s due process right to

‘marshal facts in his defense and present witnesses and documentary evidence’” in a

disciplinary proceeding. Id. at 269 (quoting Gibbons v. Higgins, 73 F.3d 364, 364 (7th Cir.

1995)).

Lennear requires a demonstration that “consideration of [video] evidence would be,

under the particular circumstances of the case, ‘unduly hazardous to institutional safety or

correctional goals.’” 937 F.3d at 272 (quoting Wolff, 418 U.S. at 566). No such showing

30 was made here. Prison officials never alleged that any institutional safety or correctional

goal was met by declining to review the video surveillance footage. The hearing officers

simply chose to credit the testimony of two corrections officers over Wall’s despite the

availability of evidence that very likely would have resolved any factual dispute as to what

occurred and addressed concerns regarding the credibility of witnesses. The hearing

officers’ refusals to permit Wall to view plainly relevant evidence—once because it was

cumulative and once for no apparent reason—were clear violations of procedural due

process as they provide no grounds to show that providing access to the video was unduly

hazardous to institutional safety or correctional goals.

C.

The Commonwealth does not argue that any penological interest was met by the

hearing officers’ decisions not to review the video evidence. It argues instead that if

Lennear’s new procedural rule applies retroactively to Wall’s case, remand is appropriate

to determine “whether the principles outlined in Lennear were met with respect to Wall’s

disciplinary proceedings and, if not, whether the error was harmless.” Appellee’s Br. 45.

More specifically, the Commonwealth urges that it should be permitted on remand to

establish any institutional concerns, supplement the record to support its justification for

the hearing officers’ actions, and argue that any violation of Wall’s procedural due process

rights was harmless error. Appellee’s Br. 46.

Although prison officials “bear the burden to come forward with evidence of the

reasons for denying an inmate’s request for access to documentary evidence, including

video surveillance footage, they ‘may wait to assert such institutional concerns until after

31 the disciplinary hearing’” and can present those reasons “in court.” Lennear, 937 F.3d at

270 (quoting Ponte v. Real, 471 U.S. 491, 497 (1985)). Because the district court did not

have the benefit of this Court’s ruling in Lennear when it denied Wall’s habeas petition,

and so that prison officials’ compliance with Lennear’s due process standard may be

litigated in the district court in the first instance rather than on appeal, remand to the district

court is appropriate, with instructions to review Wall’s claim on the merits. There, the

district court can determine whether the prison officials had any justifiable penological

reasons to deny Wall access to the video.

I caution, however, that the Commonwealth should not be permitted on remand to

manufacture institutional safety or correctional concerns that did not exist, or otherwise

present reasons that were not the true, contemporaneous reasons Wall’s requests for review

of the video evidence were denied. Moreover, the district court should take care on remand

to apply the proper harmless error standard. “[I]n evaluating whether prison officials’

failure to disclose or consider evidence was harmless, courts must determine whether the

excluded evidence could have aided the inmate’s defense. Lennear, 937 F.3d at 277; see

also Grossman v. Bruce, 447 F.3d 801, 805 (10th Cir. 2006); Brennan v. United States,

646 F. App’x 662, 666 (10th Cir. 2016) (“A [hearing officer’s] failure to comply with the

Wolff requirements is harmless when it does not prejudice an inmate’s preparation or

defense at a hearing.”); Piggie v. Cotton, 342 F.3d 660, 666 (7th Cir. 2003) (asking whether

excluded evidence “might have aided [the inmate’s] defense”).