United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
DEGUILIO Judge United States
Ford, a pro se prisoner, filed a habeas corpus
petition challenging the prison disciplinary hearing (ISO
17-07-14) where a Disciplinary Hearing Officer (DHO) found
him guilty of possession of a controlled substance in
violation of Indiana Department of Correction (IDOC) policy
B-202. ECF 1 at 1. As a result, he was sanctioned with the
loss of 30 days earned credit time. Ford identifies six
grounds in his petition which he claims entitles him to
habeas corpus relief.
prisoners lose earned credit time 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).
Ground One, Ford argues that the DHO did not have sufficient
evidence to find him guilty because the substance confiscated
from his locker was not tested. He argues that there was not
sufficient proof that the substance was either an illicit
drug, or a “look-a-like” drug, and therefore he
should not have been found guilty of possession of a
controlled substance. In the disciplinary context, “the
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).
[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
the Conduct Report charged Ford as follows:
On 7-7-17 at approx. 3:00pm I ofc. T. Nelson conducted a
shakedown of Ofd. Ford A Doc#964372. During the shakedown I
Ofc. T. Nelson found 3 plastic bags of a leafy green
substance hidden inside of a oatmeal container with a false
bottom, the container was found on the bottom far right
corner of his locker. I Ofc. T. Nelson confiscated the items
and forwarded them to I.A.
IDOC 1-1 at 2. Ford was charged and found guilty of violating
IDOC B-202. This policy prohibits the “[p]ossession or
use of any unauthorized substance controlled pursuant to the
laws of the State of Indiana or the United States Code or
possession of drug paraphernalia.” Adult Disciplinary
Process, Appendix I: Offenses.
Indiana State law prohibits possession of any synthetic or
lookalike drug. Ind. Code § 35-48-4-11.5.
had sufficient evidence to find Ford guilty of violating IDOC
B-202. Here, the DHO was confronted with two conflicting
stories. Ford claimed that the substance was not a controlled
substance. However, the reporting officer believed that it
was a controlled substance. It was the exclusive province of
the DHO to consider and weigh the respective credibility of
the parties' stories, and this court will not reconsider
those credibility determinations. See Webb, 224 F.3d
at 652. Here, a leafy green substance - an obvious reference
to what was suspected to be marijuana - was discovered
concealed within the false bottom of an oatmeal container.
The fact that Ford made such efforts to conceal the substance
further infers its illicit nature. It was not unreasonable
for the DHO to determine that, in light of this evidence, the
concealed substance was a substance controlled pursuant to
Indiana law. Thus, Ground One does not identify a basis for
granting habeas corpus relief.
Ground Two, Ford argues that he is entitled to habeas corpus
relief because the officer who discovered the contraband in
his locker was the same officer who subsequently issued him
the Conduct Report. Ford argues that this created a conflict
of interest. He is incorrect. Prisoners have a due process
right pursuant to an impartial fact-finder. This
means, for example, that a prison official who was personally
and substantially involved in the underlying incident may not
act as a decision-maker in the case. Piggie v.
Cotton, 342 F.3d 660, 666 (7th Cir. 2003). However,
prisoners do not have a corollary right to an impartial
reporting officer. In fact, the reporting officer is
likely to be the same officer who witnessed the misconduct.
Because Ford did not have a due process right to have his
Conduct Report issued by an officer who was not involved in
the underlying incident, Ground Two does not identify a basis
for granting habeas corpus relief.
Ground Three, Ford argues that the timing of his disciplinary
hearing was not in compliance with IDOC policy. Ford argues
that pursuant to IDOC policy, he was entitled to have his
disciplinary hearing held within seven days of receiving
notice of the disciplinary charges. However, IDOC's
failure to follow its own policy does not rise to the level
of a constitutional violation. Estelle v. McGuire,
502 U.S. 62, 68 (1991) (“state-law violations provide
no basis for federal habeas relief”); Keller v.
Donahue, 271 F. App'x 531, 532 (7th Cir. 2008)
(inmate's claim that prison failed to follow internal
policies had “no bearing on his right to due
process”). Moreover, Ford did not have a due process
right to a ‘speedy' disciplinary hearing. See
e.g. U.S. ex rel. Houston v. Warden, Stateville Corr.
Ctr., 635 F.2d 656, 658 (7th Cir. 1980) (prisoner's
due process rights were not violated by two-month delay
between offense and disciplinary hearing); Peters v.
Anderson, 27 F. App'x 690, 692 (7th Cir. 2001)
(unpublished) (“the delay was more likely to have
enhanced than impeded [the petitioner's] ability to
marshal a defense”). Pursuant to Wolff, Ford
was entitled to at least 24-hours' advance notice of the
charges against him before his disciplinary hearing. Here,
Ford received notice of the charges on July 14, 2017 (ECF 1-1
at 1), and his hearing was held on July 21, 2017. ECF 1-1 at
3. Therefore, Ford received adequate notice of the charges
against him, and Ground Three does not identify a basis for
granting habeas corpus relief.
Ground Four, Ford argues that he should not have received two
separate conduct reports for the two items of contraband
discovered in his cell because the contraband was hidden in
the same place and was discovered at the same time. However,
the IDOC was free to charge Ford for each of his individual
transgressions, whether discovered at the same time or not.
Ford's argument is akin to a double jeopardy argument.
However, the Double Jeopardy Clause does not apply in prison
disciplinary hearings. Meeks v. McBride, 81 F.3d 717
722 (7th 1996); Portee v. Vannatta, 105 F. App'x
855, 858 (7th Cir. 2004) (unpublished). Thus, Ground Four
does not identify a basis for granting habeas corpus relief.
Ground Five, Ford argues that his sanctions exceeded the
maximum permissible punishment for the infraction he
committed. Ford was found guilty of committing a Level B
offense. IDOC policy states that the maximum penalty for a
Level B offense is a one-grade demotion in Credit Class and a
90 day loss of earned credit time. Disciplinary Code for
http://www.in.gov/idoc/files/02-04-101TheDisciplinaryCodeforAdultOffenders6-1-2015.pdf. Here, Ford was sanctioned with the loss of
30 days earned credit time - a sanction well-within the
permissible range. See United States ex rel. Long v.
Pate, 418 F.2d 1028, 1031 (7th Cir. 1970) (where a
sentence is “within the range established by the
legislature . . . this court will not [on habeas corpus
review] question the trial judge's discretion in imposing