This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-994

 

Oscar Adams,

Appellant,

 

vs.

 

Joan Fabian,

Commissioner of Corrections,

Respondent.

 

Filed April 27, 2004

Affirmed
Klaphake, Judge

 

Washington County District Court

File No. CX-03-1784

 

Oscar Adams, Minnesota Correctional Facility, 5329 Osgood Avenue, Stillwater, MN  55028-1117 (pro se appellant)

 

Mike Hatch, Attorney General, Mark B. Levinger, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134 (for respondent)

 

            Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            In this habeas corpus proceeding, pro se appellant Oscar Adams challenges a prison disciplinary action taken against him for violating prison regulations.  Because appellant’s due process rights were not violated, we affirm.

FACTS

            Appellant is an inmate at Minnesota Correctional Facility (MCF) – Oak Park Heights and is currently serving a 151-month sentence for first-degree criminal sexual conduct.  During the time of this prison incident, appellant was an inmate at MCF – Stillwater. 

            On February 22, 2001, appellant became upset because he did not receive a shower and began shaking cell bars and yelling for the inmates to demand showers or flood the unit.  Appellant was ordered to stop.  When he ignored the order, he was moved to a modified cell and placed on quiet status.  During an unclothed body search, appellant threatened prison staff.

            The next day, appellant received a notice of violation charging him with violating three disciplinary regulations:  Offender Discipline Regulations 020 (disturbing others); 160 (disobeying a direct order); and 320 (disorderly conduct).  The notice listed six witnesses and indicated that the incident report may be introduced as evidence.  A hearing was set for February 27, 2001.

            The notice was amended on February 26, 2001, to correct a typographical error.  A second amendment was received on February 27, 2001, before the hearing.  The amendment added a charge for violating Offender Discipline Regulation 031 (threatening others) and included a videotape as evidence.

            Appellant pleaded guilty to the charge of threatening others and the other three charges were withdrawn.  He was sentenced to 90 days segregation time, extending his incarceration period by 30 days.  Appellant sought review of the hearing officer’s decision, but the warden of MCF-Stillwater upheld the decision.  Appellant then petitioned for a writ of habeas corpus, which the district court dismissed with prejudice on July 2, 2003.

D E C I S I O N

            “We are to give great weight to the trial court’s findings in considering a petition for a writ of habeas corpus and will uphold the findings if they are reasonably supported by the evidence.”  Northwest v. LaFleur, 583 N.W.2d 589, 591 (Minn. App. 1998), review denied (Minn. Nov. 17, 1998).  We review questions of law de novo.  State ex rel. McMaster v. Benson, 495 N.W.2d 613, 614 (Minn. App. 1993), review denied (Minn. Mar. 11, 1993).

            Appellant argues that his due process rights were violated because he was not given 24-hour notice of the violation of Offender Disciplinary Regulation 031 (threatening others) and additional evidence of a videotape.  It is undisputed that appellant did not receive 24-hours notice of the additional charge of “threatening others,” which was added in the second amended notice. 

            Before prison authorities can deprive an inmate of a protected liberty interest, they must provide an appropriate level of due process.  Goff v. Dailey, 991 F.2d 1437, 1440 (8th Cir. 1993) (citing Wolff v. McDonnell, 418 U.S. 539, 555-58, 94 S. Ct. 2963, 2974-75 (1974)).  Inmates are entitled to the following procedural protections in a prison disciplinary hearing:  (1) advance written notice of the claimed violation at least 24 hours before the disciplinary hearing; (2) an opportunity to present documentary evidence and call witnesses if it will not jeopardize institutional safety or correctional goals; and (3) a written statement from an impartial decision maker explaining the evidence and reasoning relied upon for the disciplinary action.  Hrbek v. Nix, 12 F.3d 777, 780 (8th Cir. 1993) (citing Wolff, 418 U.S. at 563-67, 94 S. Ct. at 2978-80).  When assessing the due process rights of an inmate, the Supreme Court has noted that the nature of due process “negates any concept of inflexible procedures universally applicable to every imaginable situation.”  Wolff, 418 U.S. at 560, 94 S. Ct. at 2977 (quotation omitted). 

            Appellant was represented by an attorney at the disciplinary hearing on February 27, 2001.  The attorney argued for dismissal of the charges due to the late amendment.  The prosecutor agreed that appellant could request a continuance, which the prosecutor would not oppose.  According to MCF Policy 303.010, petitioners are entitled to 24-hour notice unless they give consent to a shortened time; MCF policy also allows the petitioner to request a continuance. 

After consulting with the attorney, appellant declined a continuance and proceeded with the hearing.  Appellant’s knowing decision to continue constitutes a waiver of the 24-hour-notice challenge.  See Knott v. Knott, 418 N.W.2d 505, 509 (Minn. App. 1988) (finding appellant’s failure to request continuance resulted in waiver of his right to protest lack of sufficient notice to prepare for hearing).  The record reasonably supports the district court’s decision that appellant’s due process rights were not violated. 

Affirmed.