United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DENYING WITHOUT PREJUDICE MOTION TO DISMISS AND
DIRECTING FURTHER PROCEEDINGS
R. SWEENEY II, JUDGE.
Wells' petition for a writ of habeas corpus challenges
his conviction in prison disciplinary case number ISR
18-04-437. The respondent moves to dismiss Mr. Wells'
petition on grounds that his challenges to the petition are
procedurally defaulted. For the reasons set forth below, the
respondent's motion is denied without
Legal Standards: Exhaustion of Administrative Remedies and
district court may not grant a state prisoner's petition
for a writ of habeas corpus “unless it appears
that” the petitioner “has exhausted the remedies
available in” the state's courts. 28 U.S.C. §
2254(b)(1). When the petitioner “has not exhausted a
claim and complete exhaustion is no longer available, the
claim is procedurally defaulted, ” and the district
court may not grant habeas relief based on it. Martin v.
Zatecky, 749 Fed.Appx. 463, 464 (7th Cir.
avoid procedural default, an Indiana prisoner challenging a
disciplinary proceeding must fully and fairly present his
federal claims to the facility head and to the Final
Reviewing Authority.” Jackson v. Wrigley, 256
Fed.Appx. 812, 814 (7th Cir. 2007) (citing Moffat v.
Broyles, 288 F.3d 978, 981-982 (7th Cir. 2002) (holding
that, because Indiana law does not provide for judicial
review of prison disciplinary proceedings, §
2254(b)(1)'s exhaustion requirement demands that the
prisoner present his claims at both levels of the
administrative appeals process)).
Applicable Administrative Remedies
Indiana Department of Correction's (IDOC's)
Disciplinary Code for Adult Offenders permits an inmate to
appeal a disciplinary conviction. The inmate must file an
appeal with the warden or other designated official at his or
her facility (sometimes called “the facility
head”) within 15 days after receiving the report of the
disciplinary hearing. Dkt. 8-3 at §§ X(A)-X(C). If
that appeal is not resolved favorably, the inmate has 15 days
to file a second appeal to the IDOC's appeal review
officer (sometimes called the “final reviewing
authority”). Id. at § X(D). In his
first-level appeal to the facility head, an inmate must state
the specific reasons he believes relief is warranted.
Id. at § X(A)(1). The appeal review officer
will consider only those reasons when assessing the
second-level review. Id. at § X(D)(2).
Disciplinary Code includes few details concerning the manner
in which an inmate must submit his second-level appeal. The
inmate must present the appeal on State Form 39587.
Id. at § X(D)(1). He must attach “[a]ll
available documentation relating to the appeal.”
Id. at § X(D)(3). And if the inmate wishes to
keep a copy of the appeal for his own records, he “must
make a copy before sending it.” Id.
remainder of the Disciplinary Code's provisions for
second-level appeals-at least those placed into the record by
the respondent-concern the IDOC's handling of and
response to inmates' appeals. As presented, the
Disciplinary Code does not include information about where
second-level appeals are received and how records of them are
created and maintained.
Mr. Wells' Efforts to Exhaust
respondent concedes that Mr. Wells filed a first-level
appeal. The respondent's motion centers on whether Mr.
Wells submitted a second-level appeal to the Final Reviewing
petition, Mr. Wells asserts that he submitted an appeal to
the Final Reviewing Authority but never received a
response-either to his appeal or to the inquiries he made
after he received no response. Specifically, Mr. Wells states
Never recvd. reply. This appeal was inquired about when case
18-06-0148 (trafficking) was sent in. No reply was ever given
on inquiry or the appeal itself after sent in to central ofc.
Dkt. 2 at § 9(e). Mr. Wells affirmed under penalty of
perjury that this statement, along with all the other
statements in his petition, was ...