TIMOTHY W. AUSTIN, Petitioner-Appellant,
ANDREW PAZERA, Respondent-Appellee
Submitted: January 20, 2015.
As Corrected February 25, 2015.
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:13-cv-00221-JTM -- James T. Moody, Judge.
Timothy W. Austin, Petitioner - Appellant, Pro se, Albion, IN.
For Andrew Pazera, Respondent - Appellee: Frances Barrow, Attorney, Office of The Attorney General, Indianapolis, IN.
Before POSNER, KANNE, and SYKES, Circuit Judges.
Posner, Circuit Judge.
Plaintiff Austin, an inmate of an Indiana prison, was punished in a prison disciplinary proceeding for having attempted to traffic in tobacco, meaning attempting to carry tobacco or tobacco products into or outside the prison. His punishment consisted of losing 60 days of good-time credit (which increased his period of imprisonment by 60 days), being demoted from " credit class 1" to " credit class 2" (inmates in the first class earn one day of good time credit for each day of imprisonment, inmates in the second class earn one day of credit for every two days of imprisonment), being given 20 hours of extra work duty, and being denied access to the prison commissary for 25 days.
He petitioned for federal habeas corpus, see 28 U.S.C. § 2254, on the ground that the disciplinary proceeding had denied him due process of law, primarily by convicting him on the basis of insufficient evidence. The respondent is the prison's superintendent. The district court denied the petition, ruling that the evidence, though scanty, had been adequate to prove Austin's " constructive possession" of tobacco.
The entire evidence against him consisted of the following " conduct statement" submitted by a guard at the prison:
On Feb 28, 13 at approx. 10.00 AM while I Ofc Spoon was shaking down the crawl spase [ sic ] at the Gary Parole Office, Gary, Ind. I Ofc Spoon found 5 packs of Bugler cigarette papers, 1 ziploc bag that appears to have tobacco in it, 2 ziplock [ sic ] bags filled with more ziplock [ sic ] bags in it. Offender Austin, Timothy #20967 was assigned to this area (crawlspace) as his work assignment.
Austin, though an inmate, had been assigned to work in the crawl space of a parole office near the prison, doing construction and renovation work, mainly removing tile, vinyl flooring, and carpet, and stripping wallpaper, baseboards, and trim. According to his uncontradicted testimony he ...