United States District Court, N.D. Indiana, South Bend Division
JOHN N. POWELL, Petitioner,
ORDER AND OPINION
Michael G. Gotsch, Sr. United States Magistrate Judge
Powell, a pro se prisoner, filed a habeas corpus petition
challenging the prison disciplinary hearing (MCF 15-05-143)
where the Disciplinary Hearing Officer (DHO) found him guilty
of making offensive statements in violation of Indiana
Department of Correction (IDOC) policy B-246. ECF 1 at 1. As
a result, he was sanctioned with the loss of 90 days earned
credit time and was demoted from Credit Class 1 to Credit
Class 2. Id. In his petition, Powell seeks habeas
relief on three grounds. Powell did not file a traverse to
Respondent's return to the order to show cause. However,
four months have passed since Powell's deadline to file a
traverse expired. See N.D. Ind. L. Cr. R. 47-2. This
matter is now fully briefed.
prisoners lose earned time credits in a prison disciplinary
hearing, they are entitled to certain protections under the
Due Process Clause: (1) advance written notice of the
charges; (2) an opportunity to be heard before an impartial
decision maker; (3) an opportunity to call witnesses and
present documentary evidence in their defense when consistent
with institutional safety and correctional goals; and (4) a
written statement by a fact finder of evidence relied on and
the reasons for the disciplinary action. Wolff v.
McDonnell, 418 U.S. 539, 563 (1974). To satisfy due
process, there must also be “some evidence” to
support the hearing officer's decision.
Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S.
445, 455 (1985).
Ground One, Powell argues that the Conduct Report should not
have been used as evidence against him because it was not
sworn under penalty of perjury. ECF 1 at 2. Powell admits
that he did not raise Ground One to the Final Reviewing
Authority. Id. According to Powell, he did not have
adequate access to the law library prior to filing his appeal
to research the issue in Ground One. Id. Respondent
contends that Ground One should not be considered because
Powell failed to raise the issue during his administrative
appeal. ECF 8 at 6.
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.
2002). Because Powell concedes that he did not present Ground
One to the Final Reviewing Authority, it is procedurally
defaulted. Nevertheless, 28 U.S.C. § 2254(b)(2) permits
courts to deny a petition for habeas corpus on the merits
even if the petitioner failed to exhaust his State court
remedies. The court does so here.
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. A Conduct Report alone can be sufficient
evidence to support a finding of guilt. McPherson v.
McBride, 188 F.3d 784, 786 (7th Cir. 1999). While
prisoners have a right to be free from arbitrary punishment,
they are sufficiently protected from such action where the
procedural safeguards in Wolff have been satisfied.
McPherson, 188 F.3d at 787; Guillen v.
Finnan, 219 F.App'x 579, 582 (7th Cir. 2007). None
of the procedural guarantees identified in Wolff
require that disciplinary charges be sworn under oath.
Therefore, Powell did not have a right to a sworn statement
against him, and Ground One not a basis for habeas relief.
Ground Two, Powell argues that there was insufficient
evidence to find him guilty. ECF 1 at 2. However, Powell does
not argue that, on the whole, there was insufficient
evidence. Rather, Powell contrives to first exclude evidence,
and then argue that the remaining evidence is insufficient.
Id. Specifically, Powell points out that in the
section of the Report of Disciplinary Hearing titled
"Reason for Decision, " the DHO wrote only that
Powell was guilty "based on [the] DVR" recording of
the incident in the cell house. See ECF 8-6. Powell appears
to argue that because the DHO did not explicitly list the
Conduct Report as a reason for the decision, the court cannot
consider the Conduct Report in determining whether the DHO
had sufficient evidence to find Powell guilty. ECF 1 at 2.
The court does not agree. Powell's argument is based on
an incomplete reading of the Report of Disciplinary Hearing.
Powell ignores the portion of the report directly above the
Reason for Decision, which states: "[t]he following
evidence was relied on to reach the decision in this hearing:
x Staff Reports … x Physical Evidence (specifically
DVR)." ECF 8-6 at 1. As the only staff report in
evidence is the Conduct Report, there can be no question that
the Conduct Report served as a basis for the DHO's
finding of guilt.
had sufficient evidence on which to find Powell 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
Powell was found guilty of violating IDOC B-246. This offense
is defined as:
Unauthorized possession and/or display of any symbol,
paraphernalia, photograph or any other item or behavior which
is prohibited by Department of Correction policies,
procedures or rules or which is offensive based upon an
individual's gender, race, religion, ethnic or personal
background or which may intimidate another person based upon
their gender, race, ...