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Burrell v. Superintendent

United States District Court, S.D. Indiana, Indianapolis Division

April 20, 2017

ZAO BURRELL, Petitioner,



         The petition of Zao Burrell (“Burrell”) for a writ of habeas corpus challenges a prison disciplinary proceeding identified as No. NCN 15-10-0043. For the reasons explained in this entry, Burrell's habeas petition must be denied.

         A. Overview

         Prisoners in Indiana custody may not be deprived of credit-earning class without due process. Montgomery v. Anderson, 262 F.3d 641, 644-45 (7th Cir. 2001). 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).

         B. The Disciplinary Proceeding

         On October 15, 2015, Correctional Sargent J. Lawson wrote a Report of Conduct in case NCN 15-10-0043 charging Burrell with Class B offense 207, Possession of an Electronic Device. The Conduct Report states:

On the above date [10/15/2015] at approximately 1830 I Sgt. J. Lawson was assisting Officer N. Gaddis and Officer J. New with nightly cell searches. Upon arriving at cell 04-211 Ofc. Gaddis advised both offenders to come to the door. Off. Burrell was sitting on the top bunk at this time. Off. Burrell continued messing with something on the top shelf that was directly next to him. I could hear the sound of metal on metal hitting while he was messing around on the shelf. Off. Burrell then got down off of the bed and gave something to his cell mate who was sitting on the toilet. His cell mate immediately flushed the toilet. Both Offenders were removed from the cell and a search of the cell was conducted. Upon looking on the top shelf I noticed the wall outlet for the cable cord to plug into was off of the wall and sitting on the top shelf. I looked inside of the outlet box and noticed a plastic bag stuffed on the left side of the box. Upon inspecting the contents of the baggy I confirmed that it contained two ends to cell phone chargers. It was short wire with just the plug that plugs into the cell phone. Off. Burrell was advised that he would be receiving a conduct report.

[Dkt. 8-1].

         On October 15, 2015, Burrell was notified of the charge and was given a copy of the conduct report and the Notice of Disciplinary Hearing “Screening Report.” He was notified of his rights and pled not guilty. Burrell did not request a lay advocate, but did request Offender Thomas as a witness. Burrell did not request any evidence. [Dkt. 8-2].

         A disciplinary hearing in case NCN 15-10-0043 was held on October 16, 2015, and the Hearing Officer found Burrell guilty of the charge of possession of an electronic device. In making this determination, the Hearing Officer considered the staff reports, the offender's statement, photo evidence, and evidence from witnesses. Based on the Hearing Officer's recommendations the following sanctions were imposed: thirty (30) days of disciplinary segregation, suspended; thirty (30) days of lost commissary and phone privileges; and a demotion from credit class 1 to credit class 2. The Hearing Officer recommended the sanctions because of seriousness of the offense, the offender's attitude and demeanor during the hearing, and the degree to which the violation disputed/endangered the security of the facility. [Dkt. 8-3].

         Burrell appealed the disciplinary proceeding through the administrative process. His appeals were denied. He now seeks relief pursuant to 28 U.S.C. § 2254 arguing that his due process rights were violated.

         C. Analysis

         Burrell is not entitled to habeas relief because he was afforded due process. He asserts the following claims: 1) the evidence was insufficient to support a guilty finding; 2) he was denied an impartial decision maker; 3) he was denied the right to call a witness; 4) he was denied the right to exculpatory evidence; and 5) the written findings were inadequate.

         In claim one, Burrell challenges the sufficiency of the evidence. Specifically, he argues the evidence was insufficient because the hearing officer failed to call his witness, consider witness testimony, and maintain the chain of custody. The “some evidence” standard is lenient, “requiring only that the decision not be arbitrary or without support in the record.” McPherson v. McBride,188 F.3d 784, 786 (7th Cir. 1999). A conduct report alone ...

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