United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DENYING PETITION FOR WRIT OF HABEAS CORPUS AND
DIRECTING ENTRY OF FINAL JUDGMENT
J. McKINNEY, JUDGE
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.
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).
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
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.
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.
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.
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.
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 ...