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Averitte v. Superintendent

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

August 3, 2017

DERRICK AVERITTE, Petitioner,
v.
SUPERINTENDENT, Respondent.

          ENTRY DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DIRECTING ENTRY OF FINAL JUDGMENT

          LARRY J. McKINNEY, JUDGE

         The petition of Derrick Averitte for a writ of habeas corpus challenges a prison disciplinary proceeding identified as No. IYC 16-01-0032. For the reasons explained in this Entry, Mr. Averitte's habeas petition must be denied.

         A. Overview

         Prisoners in Indiana custody may not be deprived of good-time credits, Cochran v. Buss, 381 F.3d 637, 639 (7th Cir. 2004) (per curiam), or of credit-earning class, Montgomery v. Anderson, 262 F.3d 641, 644-45 (7th Cir. 2001), without due process. 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 January 7, 2016, Investigator Gaskin wrote a Conduct Report charging Mr. Averitte with use or possession of a cellular communications or other wireless device. The Conduct Report states:

On 12-08 & 09 2015 a study was conducted with Shawntech, a telecommunications company that assisted with a Cellular Interdiction Operation for the Plainfield Correctional Facility. During this two day surveillance approximately 22 cell phones were detected operating illegally within the Facility. Several phone numbers were detected as being called from a cell phone. 3 of the numbers dialed during the two day test were from numbers on offender Derrick Averitte #978398 phone list. During an interview with this inmate he did admit that number ending in 9269 was a family friend, but he denied using a cell phone during the time of the operation.

Dkt. 11-1 at 1. The Conduct Report concluded by stating, “See report of investigation.” Id. The Investigation Report states:

On 12-08 & 09 2015 [a] study was conducted with Shawntech, a telecommunications company that assisted with a Cellular Interdiction Operation at Plainfield Corr. Facility. During this two day surveillance operation approx. 22 cell phones were detected as operating illegally within the facility. Several phone numbers were detected as being cell phone calls from the North and South dorm area. 3 of the numbers recorded by the equipment were from the numbers recorded on an IYC inmate phone list. The numbers came back to Derrick Averitte #978398. During an interview with this inmate prior to the report coming out we discussed one number ending in 9269, Averitte did admit that the number ending in 9269 is a family friend on his phone list. The report list 3 numbers that appears [sic] on Averitte's phone list. Offender Averitte denied making any calls, or using a cell phone during the time of the study. The inmate did not provide any alternate reason on why his contact information was being used. During on text transfer the inmate phone replied, “This is Derrick and you are steady hitting me . . . .” Dkt. 11-2 at 1.

         Mr. Averitte was notified of the charge on January 9, 2016, when he received the Screening Report. He plead not guilty to the charge and requested the Investigation Report as evidence.

         A hearing was held on January 14, 2016. Mr. Averitte stated that he was not guilty, noting that “[t]here are a lot of offenders in here from my neighborhood who know me and know this girl. There are also a lot of ‘Derricks' in South Dorm.” Dkt. 11-5 at 1. Based on, among other things, Mr. Averitte's statement, the staff report, and the Investigation Report, the hearing officer found Mr. Averitte guilty. The sanctions imposed included a one-hundred-eighty-day earned-credit-time deprivation and a suspended demotion in credit class.

         Mr. Averitte appealed to Facility Head and then to the IDOC Final Reviewing Authority, but both of his appeals were denied. He then brought this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

         C. Analysis

         Although the respondent characterizes Mr. Averitte's petition as raising only a sufficiency of the evidence claim, he actually raises two claims. First, he argues that there was insufficient evidence to find him guilty of use or possession of cellular phone. Second, he argues that he was not given evidence explaining how the Cellular Interdiction Operation used by prison officials to identify cell phone use in ...


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