United States District Court, S.D. Indiana, Terre Haute Division
EARLIE B.A. BERRY, JR., Petitioner,
BRIAN SMITH, Respondent.
ENTRY DENYING PETITION FOR WRIT OF HABEAS CORPUS AND
DIRECTING ENTRY OF FINAL JUDGMENT
WILLIAM T. LAWRENCE, JUDGE
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 petition of Earlie B.A. Berry, Jr., for a
writ of habeas corpus challenges a prison disciplinary
proceedings identified as No. ISR 17-01-0059. For the reasons
explained in this Entry, the Respondent's unopposed
motion to dismiss must be granted and Mr. Berry's habeas
petition must be denied.
The Disciplinary Proceedings
December 30, 2016, Mr. Berry was charged in case ISF
17-01-0059 with offense B-202, possession of a controlled
substance. The conduct report states that while searching Mr.
Berry's bed area the officer discovered a magazine
clipping containing a green leafy substance. The contraband
was confiscated and photographs were taken. The substance was
then sent to the facility's Department of Investigations
and Intelligence, where it field tested positive for
January 5, 2017, Mr. Berry was notified of the charge of
possession of a controlled substance and served with a copy
of the conduct report and a copy of the notice of
disciplinary hearing “screening report.” Mr.
Berry was notified of his rights and pleaded not guilty. He
requested a lay advocate, and one was later appointed. Mr.
Berry did not request any witnesses, but he did request the
test results and the video (to show that the substance came
off his bed). The Disciplinary Hearing Officer (DHO)
conducted a video review on January 6, but the video was
inconclusive either way.
January 9, 2017, the DHO held a disciplinary hearing in case
ISF 17-01-0059. Mr. Berry pleaded not guilty and made a
statement, claiming the substance consisted of vegetable
flakes. After considering the evidence, the DHO found the
conduct report “to be true and factual” and found
Mr. Berry guilty of offense B-202, possession of a controlled
substance. Due to the likely corrective effect of sanctions,
the DHO imposed the following: a written reprimand, a 30-day
loss of J-Pay privileges, a restitution order of $4.00 for
the field test, and a suspended 60-day loss of good-time
credit, which was later enforced. Mr. Berry signed the
hearing report, acknowledging that he had been made aware of
the disposition and of his appeal rights.
Disciplinary Code for Adult Offenders establishes a two-step
administrative appeals process that an offender must follow.
The offender must first file a facility-level appeal with the
facility superintendent within 15 days of the date of the
disciplinary hearing or receipt of the hearing report. If the
Superintendent denies the first appeal and the offender
suffered a “grievous loss” (e.g., a loss of
credit time), the offender must then file a second-level
appeal with the Appeal Review Officer for the IDOC, asserting
only the claims that were asserted in the first-level appeal.
This second-level appeal must be filed within 15 days of
receiving the response from the first-level appeal.
January 31, 2017, Mr. Berry appealed to the facility head,
who denied Mr. Berry's facility-level appeal on February
7, 2017. Mr. Berry never filed a second-level appeal to the
final reviewing authority for the Indiana Department of
Berry then filed the instant petitioner for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254.
respondent contends that Mr. Berry's habeas action should
be dismissed because his claims are procedurally defaulted
because he failed to raise them in his administrative
succeed on a petition for a writ of habeas corpus, a
petitioner must first “exhaust the remedies available
in the courts of the State.” 28 U.S.C. §
2254(b)(1)(A). “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.”
Moffat v. Broyles, 288 F.3d 978, 981 (7th Cir.
2002). “[W]hen the habeas petitioner has failed to
fairly present . . . the claim on which he seeks relief in
federal court and the opportunity to raise that claim in
state court has passed, the petitioner has procedurally
defaulted that claim.” Perruquet v. Briley,
390 F.3d 505, 514 (7th Cir. 2004).
respondent argues that Mr. Berry's claims are all
procedurally defaulted and that this petition for writ of
habeas corpus must be dismissed. Because it is undisputed
that Mr. Berry never filed a timely second-level
administrative appeal in case ISF 17-01-0059, Mr. Berry did
not “fairly present” the claims raised in this
action in his administrative appeals, “and the
opportunity to [do so] has passed, [he] has procedurally
defaulted th[ose] claim[s].” Perruquet, 390
F.3d at 514. It is for this reason that this action must be