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Cherrone v. Superintendent of Wabash Valley Correctional Facility

United States District Court, S.D. Indiana, Terre Haute Division

July 23, 2015

ANDREW J. CHERRONE, JR., Petitioner,
v.
SUPERINTENDENT OF WABASH VALLEY CORRECTIONAL FACILITY, Respondent.

ENTRY DISCUSSING PETITION FOR WRIT OF HABEAS CORPUS

WILLIAM T. LAWRENCE, District Judge.

The petition of Andrew J. Cherrone, Jr. for a writ of habeas corpus challenges a prison disciplinary proceeding identified as No. WVE XX-XX-XXXX. For the reasons explained in this Entry, Cherrone's habeas petition is denied and this action is dismissed. The petitioner's motion requesting a status update [dkt. 25] is granted consistent with this Entry.

Discussion

A. Overview

Prisoners in Indiana custody may not be deprived of good-time credits, Cochran v. Buss, 381 F.3d 637, 639 (7th Cir. 2004) (per curiam), or of credit-earning class, Montgomery v. Anderson, 262 F.3d 641, 644-45 (7th Cir. 2001), without due process. The due process requirement is satisfied with the issuance of advance written notice of the charges, a limited opportunity to present evidence to an impartial decision maker, a written statement articulating the reasons for the disciplinary action and the evidence justifying it, and "some evidence in the record" to support the finding of guilt. Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985); Wolff v. McDonnell, 418 U.S. 539, 570-71 (1974); Piggie v. Cotton, 344 F.3d 674, 677 (7th Cir. 2003); Webb v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000). In habeas corpus cases, however, even if a due process error has been committed, the burden is on the petitioner to show that the error had a substantial and injurious effect on the outcome of the proceeding. O'Neal v. McAninch, 513 U.S. 432 (1995).

B. The Disciplinary Proceeding

Cherrone was charged with threatening in violation of prison rules. On October 14, 2013, Correctional Officer Neff wrote a conduct report that charged Cherrone with class B offense 236, disorderly conduct. The conduct report stated:

On 10-14-13 at 16:38 p.m. I C/O Neff witnessed offender #994200 Cherrone, Andrew kicking his cell door. He was arguing about fruit missing off his tray. I explained to him it was a misunderstanding, why he didn't get it. I then went to the Retherm (sic) and got his fruit. And delivered it to him. He then proceeded to call me a liar and that tomorrow I would be wearing his meal. Then proceeded to kick his door more.

During the screening stage the charge was changed to threatening, a Class B offense 213.

On October 18, 2013, Cherrone was notified of the charge when he was served with the conduct and screening reports. Cherrone was notified of his rights, pled not guilty and declined the appointment of a lay advocate. Cherrone requested witness statements from Officer Neff and Sgt. Drada. Cherrone explained to the Screening Officer that he believed Officer Neff would state that "[h]e misunderstood me. I said he wouldn't be working tomorrow. I did not threaten him." Cherrone also wanted a statement from Sergeant Drada who he believed would state the same information as Neff, therefore the Screening Officer wrote "same statement as above."

In his witness statement Officer Neff wrote:

"I C/O Neff stand by my conduct report of Cherrone, Andrew # 994200 threatening that I would wear his food tray the next day. He made this statement to me after Sgt. Drada exited the wing. Offender made the statement to me as I was exiting the 600 range."

Sergeant Drada stated "I did not hear Cherrone, Andrew 994200 threatening C/O J. Neff this date."

On October 22, 2013, the Hearing Officer conducted the prison disciplinary hearing and found Cherrone guilty of Class B offense 213, threatening. The sanctions recommended and approved were an earned credit time loss of 45 days, 3 months in disciplinary segregation, a 30 day loss of telephone privileges and a written reprimand. The hearing officer imposed these sanctions because of the seriousness of the offense and the likelihood these sanctions would ...


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