Before Terry and Schwelb, Associate Judges, and Gallagher, Senior
The opinion of the court was delivered by: Schwelb, Associate Judge
Appeal from the Superior Court of the District of Columbia
(Hon. Ronald P. Wertheim, Trial Judge)
Opinion for the court by Associate Judge Schwelb.
Concurring opinion by Associate Judge Terry at p. .
Opinion by Senior Judge Gallagher, concurring in the result, at p. .
Wendell Smith appeals from the denial, without a hearing, of his petition for a writ of habeas corpus. Smith contends that the appellees, officials of the District of Columbia Department of Corrections (DOC), have unlawfully detained him in administrative segregation, that he has sufficiently alleged a denial of his liberty in violation of applicable DOC regulations, and that he is therefore entitled to an evidentiary hearing. We agree and reverse.
In March 1997, Smith was a prisoner at the Occoquan, Virginia, facility operated by the DOC. Following a previous stint in "maximum security," Smith was housed in the general population.
On or about March 28, 1997, officials at Occoquan received an anonymous note from an inmate who identified himself only as "Informer." In this communication, which was addressed to Lieutenant Gregory A. King, Occoquan's Security Supervisor, "Informer" claimed to have overheard "Wendal Smith" telling "Ian Thorn" of Smith's alleged intention to escape from confinement with the help of an unidentified officer. Smith allegedly stated that he had uniforms ready, and that he hoped that a third inmate, "Rodney Shorter," who was "still in the Max," would come over before Smith escaped. *fn2 According to "Informer," Smith also threatened to harm a female correctional officer.
At the time Lieutenant King received "Informer's" note, there were two inmates at Occoquan named Wendell Smith. Both of them, as well as a third prisoner named Ian Thorne, were placed in "adjustment units" pending hearings before Occoquan's Housing Board, which "'determine[s] appropriate housing placement' to ensure prison safety and security." See Hatch v. District of Columbia, 337 U.S. App. D.C. 266, 268, 184 F.3d 846, 848 (1999) (quoting 28 DCMR § 522.1 (1987)). Officials strip-searched all three men and searched their cells and belongings, but found no evidence corroborating "Informer's" allegations.
On April 2, 1997, the Board convened appellant Smith's housing hearing. The DOC called no witnesses and, according to Smith, the Board relied solely on "Informer's" memorandum. Smith, who was not represented by counsel, admitted that he was acquainted with Ian Thorne and Rodney Short, but he claimed that he did not know the female correctional officer to whom "Informer" had referred in his note. Smith stated that the note was "a lie," that he was not planning to escape, and that "I think the note was dropped just to get me out of the unit." Following the hearing, the Housing Board found that
Inmate Smith poses a definite escape risk and threat to the safety of others. Per the [DOC Regulations], the Board therefore, recommend[s] that Inmate Smith 219106 be transferred to the Maximum Security Facility on Administrative Segregation.
With the assistance of an attorney from the Public Defender Service, Smith appealed to the Warden from the Housing Board's decision. The Warden denied Smith's administrative appeal on the following grounds:
Based on inmate Smith's previous behavior in the Occoquan Facility, and the incidents he has been involved in, the Administration of the Occoquan Facility has to take the letter submitted seriously alleging [that] inmate Smith was ...