MILLER v. ZATECKY

Filing 4

ENTRY - Petitioner's 2 Motion for Leave to Proceed in forma pauperis is GRANTED. Because Miller's habeas petition shows on its face that he is not entitled to the relief he seeks, the action is summarily dismissed pursuant to Rule 4. Judgment consistent with this Entry shall now issue. Signed by Judge Tanya Walton Pratt on 3/27/2013. Copy Mailed. (JD)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION DARNELL C. MILLER, SR., ) ) ) ) ) ) ) ) Petitioner, vs. DUSHAN ZATECKY, Respondent. Case No. 1:13-cv-464-TWP-MJD ENTRY ON PETITION FOR WRIT OF HABEAS CORPUS I. The petitioner’s motion to proceed in forma pauperis [Dkt. 2] is granted. II. DISCUSSION The petition of Darnell C. Miller, Sr.(“Mr. Miller”), for a writ of habeas corpus challenging an apparent adjunct of the prison disciplinary proceeding identified as No. ISR 11-03-0122 is denied and this action is dismissed pursuant to Rule 4 of the Rules Governing Section 2254 Proceedings in the United States District Court. This disposition is based on the following facts and circumstances: Rule 4 provides that upon preliminary consideration by the district court judge, "[i]f it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified." See Small v. Endicott, 998 F.2d 411, 414 (7th Cir. 1993). A federal court may issue a writ of habeas corpus pursuant to 28 U.S.C. ' 2254(a) only if it finds the applicant Ais in custody in violation of the Constitution or laws or treaties of the United States.@ Id. In order to proceed, Mr. Miller must meet the “in custody” requirement of § 2254(a). Meeting this requirement is a matter of jurisdictional significance. Maleng v. Cook, 490 U.S. 488, 490 (1989) (per curiam). A[T]he inquiry into whether a petitioner has satisfied the jurisdictional prerequisites for habeas review requires a court to judge the >severity= of an actual or potential restraint on liberty.@ Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 894 (2d Cir.), cert. denied, 519 U.S. 1041 (1996). “A prisoner challenging the process he was afforded in a prison disciplinary proceeding must meet two requirements: (1) he has a liberty or property interest that the state has interfered with; and (2) the procedures he was afforded upon that deprivation were constitutionally deficient.” Scruggs v. Jordan, 485 F.3d 934, 939 (7th Cir. 2007). A sanction which does not constitute Acustody” cannot be challenged in an action for habeas corpus relief. Montgomery v. Anderson, 262 F.3d 641, 644-45 (7th Cir. 2001). If a habeas petitioner has suffered the deprivation of a protected liberty interest the procedural protections delineated in Wolff v. McDonnell, 418 U.S. 539, 557 (1974), are applicable and the decision must be supported by “some evidence.” Superintend., Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985); see also Piggie v. Cotton, 344 F.3d 674, 677 (7th Cir. 2003); Webb v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000). In this case, Mr. Miller was sanctioned in No. ISR 12-11-112 on December 4, 2012, with the loss of visitation, job and housing privileges. These sanctions were non-custodial. Mamone v. United States, 559 F.3d 1209 (11th Cir. 2009); Virsnieks v. Smith, 521 F.3d 707, 713 (7th Cir. 2008). Because of this, a challenge to these sanctions does not lie within the scope of an action for habeas corpus relief. State prisoners who want to challenge their convictions, their sentences, or administrative orders revoking good-time credits or equivalent sentence-shortening devices, must seek habeas corpus, because they contest the fact or duration of custody. See, e.g., Preiser v. Rodriguez, 411 U.S. 475, 93 S. Ct. 1827, 36 L.Ed.2d 439 (1973); Edwards v. Balisok, 520 U.S. 641, 117 S. Ct. 1584, 137 L.Ed.2d 906 (1997). State prisoners who want to raise a constitutional challenge to any other decision, such as transfer to a new prison, administrative segregation, exclusion from prison programs, or suspension of privileges, must instead employ [42 U.S.C.] ' 1983 or another statute authorizing damages or injunctions--when the decision may be challenged at all, which under Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L.Ed.2d 418 (1995), and Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L.Ed.2d 451 (1976), will be uncommon. Cochran v. Buss, 381 F.3d 637, 639 (7th Cir. 2004) (quoting Moran v. Sondalle, 218 F.3d 647, 650-51 (7th Cir. 2000)). CONCLUSION Because Miller’s habeas petition shows on its face that he is not entitled to the relief he seeks, the action is summarily dismissed pursuant to Rule 4. Judgment consistent with this Entry shall now issue. IT IS SO ORDERED. 03/27/2013 Date: _________________ Distribution: Darnell C. Miller, Sr. #935261 Pendleton Correctional Facility 4490 West Reformatory Road Pendleton, IN 46064 ________________________ Hon. Tanya Walton Pratt, Judge United States District Court Southern District of Indiana