United States District Court, N.D. Indiana, South Bend Division
IVORY Q. HILL, Petitioner,
OPINION AND ORDER
William C. Lee, Judge
Q. Hill, a pro se prisoner, filed a habeas corpus
petition challenging REF 15-10-001, a prison disciplinary
proceeding held at the Indianapolis Re-entry Educational
Facility. On October 2, 2015, the Disciplinary Hearing
Officer (DHO) found him guilty of Use and/or Possession of a
Cellular Telephone or Other Wireless Device in violation of
A-121. As a result, he was sanctioned with the loss of 120
days earned credit time and a demotion to Credit Class 2.
petition, he raises two grounds to challenge the finding of
guilt: (1) he was denied an impartial decision maker; and (2)
the evidence was insufficient to find him guilty.
the first ground, Hill's acknowledges that he did not
present it to the Final Reviewing Authority. (DE 1 at 2). In
habeas corpus proceedings, the exhaustion requirement is
contained in 28 U.S.C. § 2254(b).
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. These are, we held in Markham v.
Clark, 978 F.2d 993 (7th Cir. 1992), the sort of
“available State corrective process” (§
2254(b)(1)(B)(I)) that a prisoner must use. Indiana offers
two levels of administrative review: a prisoner aggrieved by
the decision of a disciplinary panel may appeal first to the
warden and then to a statewide body called the Final
Reviewing Authority. Moffat sought review by both bodies, but
his argument was limited to the contention that the evidence
did not support the board's decision. He did not complain
to either the warden or the Final Reviewing Authority about
the board's sketchy explanation for its decision.
O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct.
1728, 144 L.Ed.2d 1 (1999), holds that to exhaust a claim,
and thus preserve it for collateral review under § 2254,
a prisoner must present that legal theory to the state's
supreme court. The Final Reviewing Authority is the
administrative equivalent to the state's highest court,
so the holding of Boerckel implies that when
administrative remedies must be exhausted, a legal contention
must be presented to each administrative level.
Moffat v. Broyles, 288 F.3d 978, 981-82 (7th Cir.
Hill concedes that he did not present this ground to the
Final Reviewing Authority, it is procedurally defaulted.
Nevertheless, procedural default can be excused and the court
can consider a claim that was not properly raised if a
petitioner can demonstrate cause and prejudice.
Weddington v. Zatecky, 721 F.3d 456, 465 (7th Cir.
2013). Here, Hill fails to demonstrate either. Instead, he
merely states that he did not know he should have raised that
claim. (DE 1 at 2.) However, “it is well established in
this Circuit that circumstances such as youth, lack of
education, and illiteracy are not external impediments within
the context of excusing procedural default.” Harris
v. McAdory, 334 F.3d 665, 669 (7th Cir. 2003). Indeed,
Harris went on to hold that neither mental
retardation, mental deficiencies, nor mental illness
demonstrate cause to excuse procedural default. Therefore,
Hill's ignorance does not excuse the procedural default.
Hill claims there was insufficient evidence to find him
guilty of Use and/or Possession of a Cellular Telephone or
Other Wireless Device. In reviewing a disciplinary
determination for 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). “[T]he relevant
question is whether there is any evidence in the record that
could support the conclusion reached by the disciplinary
board.” Superintendent v. Hill, 472 U.S. 445,
455-56 (1985). The court will overturn the hearing
officer's decision only if “no reasonable
adjudicator could have found [the prisoner] guilty of the
offense on the basis of the evidence presented.”
Henderson v. United States Parole Comm'n, 13
F.3d 1073, 1077 (7th Cir. 1994). Additionally, a hearing
officer is permitted to rely on circumstantial evidence to
establish guilt. See Hamilton v. O'Leary, 976
F.2d 341, 345 (7th Cir. 1992).
was found guilty of Class A offense 121, which is defined as
“unauthorized use or possession of any cellular
telephone or other wireless or cellular communications
device.” In this case, it is clear that the record in
this case contains at least “some evidence” to
support the hearing officer's determination that Hill was
guilty. The conduct report states:
On 9/30/15 [at] approximately 7:41 AM I officer George
Edmonds witnessed resident Ivory Hill #157982 standing
looking down at the cell phone in his hand, with residents
Cornelius Powell 910860, Myron McKnight 894255, Eric McNeal
147483 all in a huddle looking down at the cell phone in
Resident Hill's hand. I Edmonds order[ed] Hill after he
began to walk away to hand I Edmonds the cell phone in his
hand. Hill stated “he don't have anything.”
Then I Edmonds witnessed Hill continue to move around towards
Cornelius Powell 910220 who stood behind Hill. I Edmonds
witnessed Hill hand Powell an object then walked away. I
Edmonds order[ed] Hill again not to move. I order[ed] Hill
for his coat. I Edmonds witnessed in Hill's coat (black)
pocket an open pack of New Poets cigarettes with a black cell
phone charger inside a white work glove. I Edmonds
confiscated items and called on cell phone Lt. Phearson.
at the disciplinary hearing, Hill admitted that a cell phone
charger was found in his pocket at the time of the incident.
(DE 4-3.) Hill's admission and the conduct report are
some evidence that Hill possessed an unauthorized cellular
device. McPherson, 188 F.3d at 786 (7th Cir. 1999)
(conduct report alone provided some evidence to support
disciplinary determination). Again, Edmonds observed Hill had
a cellular telephone in his hand and then found a phone
charger in Hill's coat pocket. Although Hill denies that
he possessed a cellular telephone, it is not the province of
this court ...