United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
matter is before the Court on the Petition under 28 U.S.C.
Paragraph 2254 for Writ of Habeas Corpus, filed by Donte Ice,
a pro se prisoner. For the reasons set forth below, the
petition (ECF 1) is DENIED pursuant to Habeas Corpus Rule 4.
The clerk is DIRECTED to close this case. Donte Ice is DENIED
leave to proceed in forma pauperis on appeal.
petition, Ice challenges the prison disciplinary hearing (MCF
15-10-290) where he was found guilty of Possession or Use of
Controlled Substance in violation of Indiana Department of
Correction (IDOC) policy A-106. ECF 1 at 1. The Conduct
Report states that on October 15, 2015, Sergeant Uhle
conducted a search of Ice's cell with his canine partner.
ECF 1-1 at 12. Uhle's canine partner signaled that there
was contraband in Ice's property box. Id.
Uhle's search of the property box revealed an altered BBQ
sauce bottle containing a secret compartment. Id.
Within the secret compartment Uhle discovered “a white
powdery substance wrapped in cellophane.” Id.
Uhle issued Ice a disciplinary ticket pursuant to IDOC B-202.
hearing was held on November 5, 2015, by the Disciplinary
Hearing Officer (DHO). Id. Ice was sanctioned with
the loss of 90 days earned credit time and was demoted from
Credit Class 1 to Credit Class 2. Id. Ice lists
three grounds which he claims entitles him to relief.
Grounds One and Two, Ice lists a number of overlapping issues
regarding the procedure and substance of his disciplinary
hearing. Each of these issues relates to the sufficiency of
the evidence the DHO relied upon in determining that Ice was
disciplinary context, the DHO needs only a small amount of
evidence on which to find an inmate guilty. “[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). “In reviewing a decision
for some 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, 188 F.3d at 786 (quotation
[T]he findings of a prison disciplinary board [need only]
have the support of some evidence in the record. This is a
lenient standard, requiring no more than a modicum of
evidence. Even meager proof will suffice, so long as the
record is not so devoid of evidence that the findings of the
disciplinary board were without support or otherwise
arbitrary. Although some evidence is not much, it still must
point to the accused's guilt. It is not our province to
assess the comparative weight of the evidence underlying the
disciplinary board's decision.
Webb v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000)
(quotation marks, citations, parenthesis, and ellipsis
omitted). A Conduct Report alone can be sufficient evidence
to support a finding of guilt. McPherson, 188 F.3d
there was sufficient evidence to find Ice guilty of
Possession or Use of Controlled Substance. The IDOC defines
Possession or Use of Controlled Substance, offense B-202, as
follows: “[p]ossession or use of any unauthorized
substance controlled pursuant to the laws of the State of
Indiana or the United States Code or possession of drug
paraphernalia.” Adult Disciplinary Process, Appendix I:
The contraband was found in Ice's property box. ECF 1-1
at 12. Ice admits that he was in possession of the bottle
containing the white powdery substance. ECF 1-1 at 9. Though
Ice argues that he was not aware that the BBQ sauce bottle
contained contraband, the DHO did not have to believe him. It
was not arbitrary for the DHO to not believe him because it
was found in his property. However, even if Ice did not know,
the IDOC did not make intent an element of B-202. Rather,
possession alone is sufficient to violate this policy.
argues that the substance found in his cell should have been
tested to conclusively determine that the white powder was a
controlled substance. Ice is incorrect. Though prisoners have
a right to submit relevant exculpatory evidence, they do not
have the right to create evidence which does not already
exist because “[p]rison officials must have the
necessary discretion to keep the hearing within reasonable
limits.” Wolff, 418 U.S. at 566. See also
Portee v. Vannatta, 105 F. App'x 841, 843 (7th Cir.
2004) (upholding disciplinary officer's denial of
inmate's request for DNA testing). Uhle's canine
partner signaled that Ice's property box contained
contraband. Uhle then discovered the white powdery substance
in Ice's property box. In light of this evidence, the
DHO's determination was not arbitrary. IDOC's
decision not to send the contraband to a lab for official
testing is not a basis for habeas corpus relief.
also asserts that he is entitled to relief based on the
alleged “lack of chain of custody.” ECF 1 at 2.
According to Ice, the lack of a chain of custody denied him
due process. However, “[p]rison disciplinary
proceedings are not part of a criminal prosecution, and the
full panoply of rights due a defendant in such proceedings
does not apply.” Wolff, 418 U.S. at 556. In
prison disciplinary cases, due process does not require a
complete chain of custody. Rather, “[a]bsent some
affirmative indication that a mistake may have been made,
[the] hypothetical possibility of tampering does not render
evidence inadmissible, but goes instead to the weight of the
evidence.” Webb v. Anderson, 224 F.3d 649, 653
(7th Cir. 2000). Here, there is no affirmative indication of
a mistake. Therefore, the lack of a chain of custody report
is not a basis for habeas corpus relief.
Ground Three, Ice claims that he is entitled to relief
because the “evidence supports [a] lesser included
offense.” ECF 1 at 2. Ice is incorrect. The harshness
of the punishment imposed is not a valid basis for
challenging a DHO's decision, so long as the punishment
is within the range designated for the offense. Cf.
United States ex rel. Long v. Pate, 418 F.2d 1028, 1031
(7th Cir. 1970) (where a sentence is “within the range
established by the legislature … this court will not
[on habeas corpus review] question the trial judge's
discretion in imposing sentence…”). Here, IDOC
policy sets the maximum loss of earned credit time for a
Class B offense as three-months. Disciplinary Code for Adult
Ice lost 90 days of his earned credit time. IDOC policy sets