United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DISCUSSING PETITION FOR WRIT OF HABEAS
Jane Magnus-Stinson, Chief Judge
petition of John Ballinger on for a writ of habeas corpus
challenges a prison disciplinary proceeding identified as No.
IYC 16-02-0142. For the reasons explained in this Entry,
Ballinger's habeas petition must be denied.
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).
The Disciplinary Proceeding
February 8, 2016, Correctional Officer Bill Cash issued a
Report of Conduct charging Ballinger with possession of a
cellular phone in violation of Code A-121. The Report of
Conduct states, “On the above date at approximately
12:30 PM, I Officer B. Cash was doing a shakedown of offender
Ballinger, J. #903123 (OS1-23) property. As I was searching
his assigned locker I found a LG Verizon cell phone velcroed
under his assigned locker”. Ballinger was notified of
the charge on February 12, 2016, when he was served with the
Report of Conduct and the Notice of Disciplinary Hearing. The
Screening Officer noted that Ballinger did not request any
witnesses or evidence other than the cell phone.
Hearing Officer conducted a disciplinary hearing on March 16,
2016. During the hearing, Ballinger offered the statement,
“It was not my phone. I never made any calls on it. The
cabinet was missing a panel along the bottom so that anyone
had access to putting something under it. I stay out of
trouble.” The Hearing Officer determined that Ballinger
had violated Code A-121 possession of a cell phone based on
the staff statements, the offender statement, and the cell
phone. The sanctions imposed included the deprivation of 180
days of earned credit time and a demotion from credit class I
to II. The Hearing Officer imposed the sanctions because of
the seriousness, frequency, and nature of the offense, the
offender's attitude and demeanor during the hearing, the
degree to which violation disrupted or endangered the
security of the facility, and the likelihood of the sanction
having a corrective effect on the offender's future
appeals were denied and he filed the present petition for a
writ of habeas corpus.
challenges the disciplinary action taken against him arguing
that the evidence was insufficient to sustain the conviction.
reviewing the sufficiency of the evidence, “courts are
not required to conduct an examination of the entire record,
independently assess witness credibility, or weigh the
evidence, but only determine whether the prison disciplinary
board's decision to revoke good time credits has some
factual basis.” McPherson v. McBride, 188 F.3d
784, 786 (7th Cir. 1999); see also Meeks v. McBride,
81 F.3d 717, 720 (7th Cir. 1996) (“because the
‘some evidence' standard . . . does not permit
courts to consider the relative weight of the evidence
presented to the disciplinary board, it is ‘[g]enerally
immaterial that an accused prisoner presented exculpatory
evidence unless that evidence directly undercuts the
reliability of the evidence on which the disciplinary
authority relied' in support of its
conclusion”)(quoting Viens v. Daniels, 871
F.2d 1328, 1335 (7th Cir. 1989)). Instead, the “some
evidence” standard of Hill is lenient,
“requiring only that the decision not be arbitrary or
without support in the record.” McPherson, 188
F.3d at 786.
evidence to support Ballinger's disciplinary conviction
included Officer Cash's statement that the cell phone was
located under Ballinger's locker and the cell phone
itself. This is “some evidence” sufficient to
sustain the conviction. In support of his argument that the
evidence against him was insufficient, Ballinger asserts that
“those cabinets/lockers can only be removed by usage of
power tools.” This appears to be an argument that
someone else placed the cell phone on his locker. But this is
not enough to show that the evidence was not sufficient.
First, a disciplinary conviction can be based on the concept
of “constructive possession” - that an item
located in an area accessible to the prisoner and few others
can be determined to be in his possession. See Pigg v.
Finnan, 289 F.App'x 945, 947 (7th Cir. 2008)
(“When only a few inmates have access to the place
contraband is found, constructive possession is “some
evidence” sufficient to sustain a disciplinary
conviction.”) (citing Hamilton v. O'Leary,
976 F.2d 341, 345 (7th Cir. 1992); Mason v. Sargent,
898 F.2d 679, 679-80 (8th Cir. 1990)). In addition, this
argument does not directly undercut the reliability of the
evidence relied on - that the cell phone was found attached
to Ballinger's locker. See Meeks, 81 F.3d at
720. Ballinger thus has not shown his entitlement to habeas
relief based on his argument that the evidence was
insufficient to support the disciplinary conviction.