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Blakey v. Superintendent

United States District Court, N.D. Indiana, South Bend Division

December 18, 2017

HERBERT EARL BLAKEY, Petitioner,
v.
SUPERINTENDENT, Respondent.

          OPINION AND ORDER

          RUDY LOZANO, Judge United States District Court.

         This matter is before the Court on the 28 U.S.C. § 2254 Habeas Corpus Petition Challenging a Prison Disciplinary Proceeding, filed by Herbert Earl Blakey, a pro se prisoner, on June 15, 2017. For the reasons set forth below, the habeas corpus petition (ECF 1) is DENIED. The clerk is DIRECTED to enter judgment and close this case.

         BACKGROUND

         Blakey filed a petition under 28 U.S.C. § 2254 challenging his prison disciplinary hearing (MCF 17-01-0371) at the Miami Correction Facility where a Disciplinary Hearing Officer (DHO) found him guilty of possession or use of a controlled substance in violation of Indiana Department of Correction policy B-202. ECF 1 at 1. As a result, Blakey was sanctioned with the loss of 30 days earned credit time and was demoted from Credit Class 2 to Credit Class 3. Id.

         DISCUSSION

         Blakey argues there are three grounds which entitle him to habeas corpus relief. In the first ground, he claims that the DHO did not have sufficient evidence to find him guilty. ECF 1 at 2.

         In the context of a prison disciplinary hearing, “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). “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 v. McBride, 188 F.3d 784, 786 (7th Cir. 1999) (quotation marks omitted).

[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 omitted).

         Here, the Conduct Report charged Blakey as follows:

On January 21, 2017 at approximately 10:42, I, Officer B. Johnson, was conducting a random cell search in cell 323/324. As I was searching the bottom bunk of Offender Blakey, Herbert 951672 C323 (B) under his pillow there was [a] paper towel soaked in coffee that had a small ripped of[f] piece of a greeting card on it. The coffee paper is known for what offenders use as rolling papers for smoking. As I continued to search the bottom bunk under the mattress in a book w[ere] two more pieces of a greeting card ripped up approximately the size of an offender id card. This is believed to be the liquid K2 that is being sprayed on greeting cards that [are] coming through the mail.

ECF 1 at 4. K-2 is the name of synthetic marijuana. See McNeeley v. Superintendent, No. 3:13 CV 401, 2014 WL 301462, at *1 (N.D. Ind. Jan. 28, 2014) citing Nat'l Drug Control Pol'y, https://obamawhitehouse.archives.gov/ondcp/ondcp-fact-sheets/ synthetic-drugs-k2-spice-bath-salts (last accessed November 28, 2017).

         The IDOC defines offense B-202 as “[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. http://www.in.gov/idoc/files/02-04-101APPENDIXI-OFFENSES6-1-2015(1).pdf. The IDOC's definition of ‘possession' includes any contraband on the prisoner's person, without reference to ownership: “offenders are presumed to be responsible for any property, prohibited property or contraband that is located on their person, within their cell or within areas of their housing, work, educational or vocational assignment that are under their control.” Disciplinary Code for Adult Offenders. http://www.in.gov/idoc/files/02-04- 101TheDisciplinaryCodeforAdultOffenders6-1-2015.pdf. Indiana State law prohibits possession of any synthetic drug. Ind. Code § 35-48-4-11.5.

         The DHO's finding that Blakey was guilty was neither arbitrary nor unreasonable in light of the evidence in the Conduct Report. A conduct report alone can be enough to support a finding of guilt. McPherson, 188 F.3d at 786. Here, Blakey's possession of drug paraphernalia-coffee paper and three ripped off pieces of greeting cards-used for rolling and smoking synthetic marijuana, combined with the suspicious concealment of these ...


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