DeLeon v. Heimgartner

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NOT DESIGNATED FOR PUBLICATION

No. 117,679

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

OSCAR DELEON,
Appellant,

v.

JAMES HEIMGARTNER,
Appellee.


MEMORANDUM OPINION

Appeal from Butler District Court; JOHN E. SANDERS, judge. Opinion filed December 22, 2017.
Affirmed.

Joshua S. Andrews, of Cami R. Baker & Associates, P.A., of Augusta, for appellant.

Joni Cole, legal counsel, of El Dorado Correctional Facility, for appellee.

Before STANDRIDGE, P.J., PIERRON, J., and BURGESS, S.J.

PER CURIAM: Kansas Department of Corrections inmate Oscar DeLeon was
accused of violating K.A.R. 44-12-325, promoting or representing a security threat group,
by having an N shaved into his head which letter was alleged to represent the Nortenos
gang. After an administrative disciplinary hearing, DeLeon was fined $5 and lost his
good time credit. DeLeon exhausted his administrative remedies and filed a writ of
habeas corpus with the district court. The district court dismissed DeLeon's writ of
habeas corpus, and DeLeon timely appealed. DeLeon denies the design was an N and on
appeal challenges the sufficiency of the evidence. We affirm.

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FACTUAL AND PROCEDURAL BACKGROUND

On March 8, 2016, SST Brett Sissell observed a design cut into DeLeon's hair that
looked like an N. The security threat group Nortenos utilizes the letter N. When SST
Sissell confronted him, DeLeon claimed that the design was not an N, but a "'Z' swirl
design." However, SST Sissell believed it was an N representing the Nortenos, and issued
DeLeon a disciplinary report for violating K.A.R. 44-12-325 which, in part, prohibits
inmates from promoting or assisting any security threat group.

A disciplinary report hearing was held on March 11, 2016. DeLeon attempted to
present two motions at the hearing, but the "request was ignored." The first was a motion
to dismiss, and the second was a motion for additional witness.

As the hearing continued, DeLeon testified the design in his hair was not an N but
was a Z design. The hearing officer responded that he was going to postpone the rest of
the hearing and discuss the design with the Enforcement Apprehensions and
Investigations Unit (EAI). DeLeon objected to the hearing officer questioning the EAI
officer outside of his presence. The hearing concluded for the day and resumed three days
later. On March 14, 2016, both DeLeon and EAI Investigator O'Brien were present, and
the hearing officer informed DeLeon that after consulting with EAI, he was finding him
guilty of the disciplinary violation. The hearing officer then gave DeLeon the opportunity
to question the EAI officer. However, DeLeon's request to read the testimony from the
EAI officer that was taken outside of his presence was denied. DeLeon asked the EAI
O'Brian whether he was an identified member of the Nortenos gang, but the hearing
officer said the question was irrelevant. At the end of the hearing, the hearing officer
issued DeLeon a $5 fine. DeLeon's unit team took away his good time credit at a later
date.

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DeLeon went through the proper administrative channels and filed a petition for
writ of habeas corpus on April 22, 2016. On September 28, 2016, the district court in
Butler County issued an order for hearing, which was held on December 23, 2016. At this
hearing, the district court addressed the merits of the disciplinary report as well as
procedural and due process concerns. DeLeon again testified that the design cut into his
hair was a Z swirl design. In his testimony, he also pointed out that in order to take a
photo of the design as an N, he had to hold his head down until they took the photo.
Finally, DeLeon testified that he was not a member of the Nortenos gang, and he has
never held himself out to others as being associated with the Nortenos.

The hearing officer also testified at this hearing that although the design cut into
DeLeon's head could have been either an N or a Z, he spoke with an EAI agent who
advised him the design was an N associated with the Nortenos gang.

The district court remanded the case back to El Dorado Correctional Facility
(EDCF) for a new hearing. The district court sought specific findings on DeLeon's
motions for an additional witness and to dismiss that were not heard at his disciplinary
hearing. The EDCF was instructed to provide the results of the hearing to the district
court, and at that time the court would either order further proceedings or make an order
for dismissal.

DeLeon's rehearing took place on December 27, 2016, before a new hearing
officer. The two motions that DeLeon previously presented were addressed at this
hearing. DeLeon's motion to dismiss was denied due to the fact that K.A.R. 44-12-325
does not require proof of actual membership in a security threat group. His motion for an
additional witness was granted. Additionally, the hearing officer found the following
findings of fact:

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"3. Oscar [DeLeon], #103189, is an offender in the custody of the Kansas
Secretary of Corrections, and was issued DR 16-03-060 on Tuesday, March 8, 2016 by
SST Brett Sissell . . .
"4. On the aforementioned date and time, SST Sissell observed offender
[DeLeon] with a capital letter 'N' on top of his head which had been cut into his hair.
"5. Offender [DeLeon] did not deny having the mark on his head, but did deny
that it was the letter 'N'.
"6. Photographic evidence was taken by SST Sissell. This evidence was reviewed
and presented to the offender at the hearing and is hereto attached, and is incorporated as
if fully set for herein.
"7. Officer Sissell was called and testified on behalf of EDCF and confirmed the
contents of his report as true and correct, and further stated that he believed that the
marking in Petition's head was [a] letter 'N' and appeared to be representative of a
'Security Threat Group' (SGT).
"8. EAI Investigator O'Brien . . . was called by EDCF and reviewed the
photographic evidence taken by SST Sissell. O'Brien confirmed that the 'N' inscribed in
[DeLeon's] head was representative of the SGT Group, 'Nortenos'.
"9. [DeLeon] called CSI I B. Wiemers to testify on his behalf. However,
Wiemers did not have any specific recollections related to the subject matter."

Based on those findings of fact, the hearing officer again found DeLeon guilty of
violating K.A.R. 44-12-325 and affirmed the previously assessed sanctions.

On February 21, 2017, the district court issued an order of dismissal. The district
court found the rehearing satisfied any due process concerns that were lacking in the first
hearing. The district court also found that some evidence supported the hearing officer's
findings, and stated it would not "second guess the hearing officer's determination as to
the factual matters presented." The district court dismissed DeLeon's petition. DeLeon
timely filed his notice of appeal.



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ANALYSIS

A challenge to the sufficiency of the evidence in a prison disciplinary proceeding
is reviewed for "some evidence" to support the correctional tribunal. Determining
whether this standard is satisfied does not require the reviewing court to examine the
entire record, make an independent assessment of witness credibility, or reweigh the
evidence. The relevant question is whether there is any evidence in the record to support
the conclusion reached by the disciplinary authority. May v. Cline, 304 Kan. 671, 674,
372 P.3d 1242 (2016) (quoting Sammons v. Simmons, 267 Kan. 155, Syl. ¶ 3, 976 P.2d
505 [1999]).

There is some evidence in the record that supports the hearing officer's findings.
There was a design cut into DeLeon's hair. SST Sissell testified he believed the design in
DeLeon's hair was an N that appeared to represent or promote a security threat group.
Likewise, EAI Investigator O'Brien also testified that the design in DeLeon's hair looked
like an N and appeared to represent the Nortenos.

K.A.R. 44-12-325(c) states:

"Inmates shall not develop, organize, promote, or assist any security threat group and
shall not engage in any activity calculated to incite a demonstration by any security threat
group. Inmates shall not possess any item, whether in its original condition or in an
altered state, associated or identified with any security threat group. 'Security threat
group' shall mean any ongoing formal or informal organization, association, or group of
three or more persons with a common name or identifying sign or symbol, but without
specific approval by the warden."

The evidence in the record, including the testimony regarding the design cut into
DeLeon's hair provides some evidence that DeLeon was promoting or associating with a
security threat group—the Nortenos.
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Affirmed.