Owens v. Superintendent

Filing 5

OPINION AND ORDER DENYING 4 Verified MOTION for Appointment of Counsel by Petitioner Thomas Owens. Petition is DENIED pursuant to Section 2254 Habeaus Corpus Rule 4. This case is DISMISSED. Signed by Senior Judge James T Moody on 2/24/2015. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
THOMAS OWENS,
Petitioner,
v.
SUPERINTENDENT,
Respondent.

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No. 1:14 CV 116

OPINION AND ORDER
Thomas Owens, a pro se prisoner, filed this habeas corpus petition challenging
the prison disciplinary hearing (MCF 13-12-173) held at the Miami Correctional Facility
on December 20, 2013. The Disciplinary Hearing Body (DHB) found Owens guilty of
Attempted Trafficking in violation of A-111/113, sanctioned him with the loss of 120
days earned credit time and demoted him to Credit Class 2. Owens raises four grounds
in his petition.
First, he argues that he was denied the right to submit evidence because he was
not given a transcript of phone conversations and kiosk requests. However, he did not
ask for any telephone transcripts or kiosk requests when he was given notice of the
charges against him. (See DE #1 at 30.) Rather, he merely asked that “phone calls be
listened to.”(Id.) The DHB did listen to the phone calls. (See DE #1 at 22 and 29.) Thus,
though Owens did not hear the telephone calls, he was not denied the right to submit
evidence to the DHB for its consideration. “[P]rison disciplinary boards are entitled to

receive, and act on, information that is withheld from the prisoner and the public . . ..”
White v. Ind. Parole Bd., 266 F.3d 759, 767 (7th Cir. 2001).
Second, he argues that it was a violation of due process to find him guilty based
on the reporting officer’s opinion. In his third ground, he rephrases his second claim by
arguing that the conduct report is speculative. Specifically, Owens is objecting to the
reporting officer’s statement: “It is this Investigators [sic] opinion that 27 suboxone, at a
value of $75 a piece [sic] wouldn’t have been sent to Hill without his knowledge and his
agreement . . ..” (DE #1 at 13.) However, Owens was not found guilty based on that
opinion about the value of suboxone or under what conditions a sender would be
willing to send it to Offender Hill. Rather, he was found guilty based on staff reports,
his own statement, the evidence of witnesses, and the physical evidence. (See DE #1 at
23.) Moreover, the formal rules of evidence do not apply to prison disciplinary
proceedings. Wolff v. McDonnell, 418 U.S. 539, 566 (1974) and Piggie v. Cotton, 342 F.3d
660, 666 (7th Cir. 2003). Therefore, it was not a due process violation for the reporting
officer to have expressed an opinion or speculated in the Conduct Report.
Fourth, Owens argues that he was charged with a fictitious code because
“111/113” does not exist. However, it is the factual basis of the charge, not the name of
it or the code number assigned to the violation that is relevant. See Northern v. Hanks,
326 F.3d 909, 911 (7th Cir. 2003). Here, the factual basis of the charge of attempted
trafficking was clearly set forth in the Conduct Report. (See DE #1 at 13.) Therefore
Owens has not presented any basis for habeas corpus relief.
2

Finally, Owens asks to be appointed counsel. The Criminal Justice Act, 18 U.S.C.
§ 3006A(a)(2)(B), permits the appointment of counsel in a habeas corpus case, if “given
the difficulty of the case and the litigant’s ability, [he] could not obtain justice without
an attorney, he could not obtain a lawyer on his own, and he would have . . . a
reasonable chance of winning with a lawyer at his side.” Winsett v. Washington, 130 F.3d
269, 281 (7th Cir. 1997) (brackets, quotation marks, and citation omitted). Here, Owens
has not demonstrated that he has made any attempt to obtain counsel on his own.
Nevertheless, he is literate and clearly knowledgeable about his case. However, his
claims are simply meritless. There is no reason to believe he would have had a
reasonable chance of winning if he had been represented by a lawyer. Therefore the
request for counsel will be denied.
For the foregoing reasons, the request for counsel (DE #4) is DENIED. The
habeas corpus petition is DENIED pursuant to Section 2254 Habeas Corpus Rule 4. This
case is DISMISSED.
SO ORDERED.
Date: February 24, 2015
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT