United States District Court, S.D. Indiana, Indianapolis Division
STEVEN B. BOWLING, Petitioner,
SUPERINTENDENT, PLAINFIELD CORRECTIONAL FACILITY, Respondent.
ENTRY DENYING MOTION TO DISMISS AND DIRECTING FURTHER
Jane Magnus-Stinson, Judge
petition of Steven Bowling for a writ of habeas corpus
challenges a prison disciplinary proceeding in IYC 15-11-0197
in which he was charged the offense of intoxicants (hooch).
Mr. Bowling was found guilty of the charge and sanctions were
imposed including a 30-day deprivation of earned credit time.
Presently before the Court is the respondent's motion to
dismiss, arguing that Mr. Bowling failed to exhaust his
available administrative remedies before filing this action.
respondent moves to dismiss Mr. Bowling's petition on the
ground that he failed to file the second administrative
appeal and, because he can no longer do so, has procedurally
defaulted his claims. In response, the petitioner asserts
that he attempted to exhaust his administrative remedies, but
inadvertently failed to put sufficient postage on the second
administrative appeal. He further asserts that due to Indiana
Department of Correction (“IDOC”) mail policy, he
was unable to verify the correct postage necessary prior to
mailing the appeal. The respondent asserts in his motion to
dismiss that proper postage is the responsibility of the
inmate. However, he fails to support this assertion with
reference to IDOC policy or other authority. The respondent
did not respond to the petitioner's response.
IDOC Adult Disciplinary Procedures provides for the following
administrative appeals for disciplinary sanctions: (1) an
appeal must be filed to the Facility Head within fifteen (15)
days of the hearing date or the receipt of the report of
disciplinary hearing; and (2) following an unsuccessful
appeal to the Facility Head, a petitioner must appeal to the
IDOC Appeals Review Officer within fifteen (15) days from the
date he receives a response from the Facility Head. The first
appeal occurs entirely intra-facility, while the second
appeal requires the inmate to mail the appeal to a central
office in Indianapolis.
succeed on a petition for a writ of habeas corpus, a
petitioner must first “exhaust the remedies available
in the courts of the State.” 28 U.S.C. §
2254(b)(1)(A). “Indiana does not provide judicial
review of decisions by prison administrative bodies, so the
exhaustion requirement in 28 U.S.C. § 2254(b) is
satisfied by pursuing all administrative remedies.”
Moffat v. Broyles, 288 F.3d 978, 981 (7th Cir.
2002). “[W]hen the habeas petitioner has failed to
fairly present to the state courts the claim on which he
seeks relief in federal court and the opportunity to raise
that claim in state court has passed, the petitioner has
procedurally defaulted that claim.” Perruquet v.
Briley, 390 F.3d 505, 514 (7th Cir. 2004). However, a
federal habeas court will consider a procedurally defaulted
claim “if the petitioner can establish cause and
prejudice for the default or that the failure to consider the
claim would result in a fundamental miscarriage of
justice.” Johnson v. Hulett, 574 F.3d 428, 431
(7th Cir. 2009) (citation and quotation marks omitted).
default may be excused . . . if the petitioner can show both
cause for and prejudice from the default.” Bolton
v. Akpore, 730 F.3d 685, 696 (7th Cir. 2013); see
Dupree v. Jones, 281 Fed.Appx. 559, 560 (7th Cir. 2008)
(“A state prisoner seeking restoration of lost
good-time credits must exhaust state-court remedies before
turning to federal court, or else show cause and prejudice
for failing to exhaust.”). Mr. Bowling's arguments
regarding his inability to accurately determine the correct
postage for the second administrative appeal are clearly an
attempt to invoke this exception to the procedural default
establish cause for [a] default, a petitioner ordinarily must
show that some external impediment blocked him from asserting
his federal claim in state court.” Perruquet,
390 F.3d at 514-15; see Johnson v. Foster, 786 F.3d
501, 505 (7th Cir. 2015) (“Cause is defined as an
objective factor, external to the defense, that impeded the
defendant's efforts to raise the claim in an earlier
proceeding.”) (citation and quotation marks omitted).
“[S]ome interference by officials, [which] made
compliance [with the procedural rule] impracticable, would
constitute cause under this standard.” Murray v.
Carrier, 477 U.S. 478, 488 (1986).
Seventh Circuit in Johnson examined what constitutes
good cause in circumstances similar-but certainly not the
same-as this case, and it is therefore instructive. To
constitute good cause, the impediment alleged by the prisoner
must make compliance with the state procedural rule at issue
“‘impracticable' and it must be a factor
‘external' (that is, not attributable) to
him.” Johnson, 786 F.3d at 508. Here, the
respondent asserts the factor (correct postage) is
attributable to the petitioner, but as noted by the Court
above, does not explain how inmates are able to correctly
determine postage. In contrast, the petitioner responds he
was unable to verify the correct postage prior to mailing the
appeal based on how the IDOC handles inmate mail. For these
reasons, and based on the lack of any specific evidence on
these points by the respondent, Mr. Bowling's claims
cannot be satisfactorily resolved on the basis of his
respondent's motion to dismiss [dkt. 7] is
respondent shall have through December 6,
2016, in which to file any further response to Mr.
Bowling's petition for writ of habeas corpus. Mr. Bowling
shall have thirty (30) days from the filing
date of the respondent's response in which to file a