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Gates v. Butts

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

April 27, 2018

STEVEN GATES, Petitioner,
v.
KEITH BUTTS, Respondent.

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

          SARAH EVANS BARKER, JUDGE

         The petition of Steven Gates for a writ of habeas corpus challenges Indiana Department of Correction (IDOC) policy concerning the restoration of credit time previously taken away. Specifically, he asserts that the change in policy violates the Ex Post Facto Clause. For the reasons explained in this Order, Mr. Gates's habeas petition must be denied without prejudice.

         I. Background

         A. IDOC's Discretion to Restore Credit Time

         The Indiana legislature has given the IDOC discretion to restore any part of an offender's credit time that is revoked as a result of a disciplinary proceeding. See Ind. Code § 35-50-6-5(c) (Supp. 2015); Campbell v. State, 714 N.E.2d 678, 683-84 (Ind.Ct.App. 1999), overruled in part on other grounds by Robinson v. State, 805 N.E.2d 783, 791 (Ind. 2004). Specifically, the statute provides that “[a]ny part of the … good time credit of which a person is deprived under this section may be restored.” Id. (emphasis added); accord Ind. Code § 35-50-6-5(c) (2014) (“Any part of the credit time of which a person is deprived under this section may be restored.”); Ind. Code § 35-50-6-5(c) (2008) (same).

         The IDOC has established a policy for the relevant decisionmakers at each facility to follow when restoring offenders' previously deprived credit time. The Disciplinary Code for Adult Offenders (DCAO) instructs facility decisionmakers on how to carry out the IDOC's legislatively conferred discretion. Two versions of the DCAO are relevant to this case, the 2012 version, dkt. 8-10, and the 2015 version, dkt. 8-11.

         Under the 2012 version of the DCAO, the IDOC could exercise its discretion to restore credit time based on an offender's continued good behavior and based on an offender's eligibility. However, credit time lost as a result of a violation of offense A-100, among others, was not eligible for restoration. Dkt. 8-10 at 45, § IX(E)(9)(c)(4). If the offender's petition for restoration was approved, then 25% of the original amount of the total lost credit time was restored. Id. at 46, § IX(E)(9)(g). An offender could file another petition for restoration six months later and have another 25% restored, if still eligible, and then another six months after that. Id. § IX(E)(9)(g)(2)- (3). The IDOC, in its discretion, capped the maximum amount of credit time that could be restored at 75% of the credit time originally lost by the offender. Id. § IX(E)(9)(g)(4).

         Effective June 1, 2015, the IDOC altered the manner in which it restored credit time going forward. See Dkt. 8-11. Under the 2015 version of the DCAO, the restoration of credit time is still based on the offender's good behavior, but several of the eligibility criteria have changed, see Id. at 45-46, § IX(E)(9)(a). The facility can restore up to 60 days of credit time upon approval of the offender's first petition. Id. at 48-49, § IX(E)(9)(g)(1). An offender can file a petition to restore credit time every six months. Id. at 48, § IX(E)(9)(c). However, the maximum amount of “deprived earned credit time” that can be restored is 50% of “the cumulative amount of restorable earned credit time.” Id. at 49-50, § IX(E)(9)(g)(3). The 2015 policy is silent about whether time lost as a result of Class A offense may be restored, and thus presumably permits it.

         B. Loss of Earned Credit Time

         On May 15, 2012, Mr. Gates was sentenced to 16 years' imprisonment. During his current commitment period, Mr. Gates has been the subject of multiple disciplinary proceedings, seven of which have resulted in a deprivation of earned credit time:

Proceeding No.

Offense

Loss of Earned Credit Time

IYC 12-12-0056

B-236, disorderly conduct

60 days

IYC 13-03-0158

B-207, possession of an electronic device

90 days

IYC 13-06-0021

B-202, possession and/or use of a controlled substance

60 days

IYC 13-06-0120

B-212, assault/battery

60 days

IYC 13-08-0041

B-202, possession and/or use of a controlled substance

60 days

IYC 14-02-0310

A-121, possession of a cell phone

180 days

IYC 14-04-0028

A-100, violation of state law (IC § 35-42-2-1.5: aggravated battery)

360 days

Total

763 days

Cumulatively, Mr. Gates lost a total of 763 days of earned credit time.

         C. Restoration of Earned Credit Time

         On September 5, 2015, Mr. Gates filed his first petition for restoration of time. The petition was approved, and 60 days of earned ...


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