United States District Court, S.D. Indiana, Indianapolis Division
ENTRY GRANTING PETITION FOR WRIT OF HABEAS
WALTON PRATT, JUDGE.
matter is before the Court on pro se Petitioner
Lucas Bailey's (“Mr. Bailey”) Petition for
Writ of Habeas Corpus challenging a prison disciplinary
proceeding identified as NCF 16-04-0263, which resulted in
the loss of ninety days of good-time credit and a demotion in
credit class. (Filing No. 1.) Mr. Bailey raises
three claims in his Petition, one of which is dispositive.
Mr. Bailey maintains that he was denied due process because
his requested witnesses were not permitted to testify at his
disciplinary hearing; they instead submitted written
statements. For the reasons explained in this Entry, the
Court concludes that Mr. Bailey was denied due process and
his Petition for habeas corpus is granted.
have a due process right to call witnesses at their
disciplinary hearings when doing so would be consistent with
institutional safety and correctional goals.”
Piggie v. Cotton, 344 F.3d 674, 678 (7th Cir. 2003)
(citing Wolff v. McDonnell, 418 U.S. 539, 566
(1974)). However, “prisoners do not have the right to
call witnesses whose testimony would be irrelevant,
repetitive, or unnecessary.” Pannell v.
McBride, 306 F.3d 499, 503 (7th Cir. 2002). As
acknowledged by the Respondent, Mr. Bailey requested four
witnesses prior to his disciplinary proceeding, each of whom
provided a written statement prior to the challenged
disciplinary proceeding in lieu of live testimony at the
initial round of briefing regarding Mr. Bailey's claim,
the Respondent offered two reasons why the proceedings did
not violate Mr. Bailey's due process rights.
(SeeFiling No. 11 at 6-8.) The Court explained in
its Entry dated February 9, 2017 (Filing No. 14),
why neither of those two reasons were sufficient. First, the
Court noted that the Seventh Circuit has repeatedly rejected
the argument that written witness statements are an adequate
substitute for live testimony. See Whitlock v.
Johnson, 153 F.3d 380, 388 (7th Cir. 1998) (“We
are . . . unconvinced by the prison's assertion that its
policy of interviewing requested witnesses and summarizing
their testimony in an unsworn report is a legitimate means of
‘calling a witness' even when live testimony would
be feasible.”); see also Doan v. Buss, 82
Fed.Appx. 168, 170-71 (7th Cir. 2003) (rejecting the
contention that “under Wolff oral testimony is
not required as long as written statements are
obtained”); Ashby v. Davis, 82 Fed.Appx. 467,
471 (7th Cir. 2003) (holding that “[t]he submission of
a written [witness] statement is not by itself a valid reason
for not appearing, ” and explaining that “[l]ive
testimony is the presumption absent a valid reason for
Respondent's second argument was also rejected. The Court
explained that Respondent's conclusory assertion that
permitting live testimony from other inmates “would
have threatened the security of the facility and put the
offenders and officers at risk of harm, ” (Filing
No. 11 at 8), was insufficient. While safety concerns
are a valid justification for denying an inmate the ability
to present live witnesses, see Wolff, 418 U.S. at
566, a conclusory assertion that security concerns were
present essentially forecloses judicial review of whether the
petitioner's due process rights were infringed, see
Ponte v. Real, 471 U.S. 491, 498-99 (1985); see also
Hayes v. Walker, 555 F.2d 625, 630 (7th Cir. 1977)
(“If we were to allow broad unsupported findings as
were offered in the present case to support the [exclusion of
the prisoner's witnesses], a prisoner's limited right
to call witnesses could be arbitrarily denied in any case and
thereby be rendered meaningless.”). Therefore, the
Court made clear that it was the Respondent's burden to
provide a “justification”- not a conclusion-for
the denial of witnesses. Ponte, 471 U.S. at 499;
see Wilson v. Davis, 102 Fed.Appx. 37, 38 (7th Cir.
2004) (“The burden is on the state to offer a rational
explanation for the denial of an inmate's request for
light of the deficiencies in the Respondent's submission,
the Court gave the Respondent an additional period of time in
which to provide the required justification for denying Mr.
Bailey the ability to call live witnesses during the
challenged disciplinary proceeding. The Court made clear
that, in providing the required justification, the Respondent
should ensure that the justification is sufficiently
particularized-that it represents “a determination . .
. made on a case-by-case basis that requested witnesses pose
institutional problems.” Forbes v. Trigg, 976
F.2d 308, 317 (7th Cir. 1992); see Hayes, 555 F.2d
at 630 (rejecting a prison's justification for excluding
witnesses because it was “only broad conclusory
findings of possible hazard both to potential witnesses and
to institutional security which applied to all of the
proposed witnesses on plaintiff's list”).
Respondent submitted a supplemental brief and evidence
(Filing No. 15), and Mr. Bailey submitted a reply
brief (Filing No. 17).
Respondent's supplemental brief, he argues for the first
time that Mr. Bailey's witness claim is procedurally
defaulted because he did not raise it during the
administrative appeals process (Filing No. 15 at
1-2). The Respondent is correct that, to 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). Since
“Indiana does not provide judicial review of decisions
by prison administrative bodies, . . . 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). However,
“[p]rocedural default is an affirmative defense and can
be waived.” Weddington v. Zatecky, 721 F.3d
456, 465 (7th Cir. 2013). “As with any other right or
defense, the State will waive procedural default by
intentionally relinquishing its right to assert that defense,
either explicitly or implicitly.” Blackmon v.
Williams, 823 F.3d 1088, 1100 (7th Cir. 2016) (citation
and quotation marks omitted).
the Respondent explicitly waived its reliance on Mr.
Bailey's alleged failure to exhaust and the consequential
procedural default in his initial return to the Court's
show cause order. Specifically, the Respondent stated that
Mr. Bailey “exhausted his available administrative
appeals with regard to the issues raised in the Petition,
” and then went on to address the merits of this claim.
(Filing No. 11 at 2.) Accordingly, the Respondent
has waived its affirmative defense that this claim is
Court notes, however, that even if this defense was not
waived, the Court would reject it. This is because the
Respondent has failed to submit sufficient evidence to refute
Mr. Bailey's contention that he raised this issue in his
final administrative appeal. The Court was presented with
only the decision from the final appeal-which does not settle
the matter one way or another-and thus it is not clear
whether or not this issue was raised in the final appeal. For
this additional reason, Mr. Bailey's claim is not deemed
defaulted and the Court will address it on the merits.