Breiner v. Superintendent

Filing 21

OPINION AND ORDER. The habeas corpus petition is DENIED. The clerk is DIRECTED to close this case. ***Civil Case Terminated. Signed by Judge Theresa L Springmann on 3/29/16. (jld) (cc: Breiner)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
DOUGLAS BREINER,

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Petitioner,
v.
SUPERINTENDENT,
Respondent.

CAUSE NO.: 2:15-CV-114 TLS

OPINION AND ORDER
Douglas Breiner, a pro se prisoner, filed a habeas corpus petition under 28 U.S.C.§ 2254
[ECF No. 1] challenging the prison disciplinary hearing, WCC 15-01-346, where the Westville
Correctional Facility Disciplinary Hearing Officer (DHO) found him guilty of Violating a State
Law in violation of prison rule A-100. On February 3, 2015, he was sanctioned with the loss of
365 days earned credit time and demoted to Credit Class 3. Breiner was found guilty of violating
Indiana Code § 35-43-5-2 (Counterfeiting; Forgery; Application Fraud) because he created and
submitted a document for a time cut which bore the signature of Education Director Steve
Klosowski. In his petition, Breiner lists nine grounds.
Before addressing those specific arguments, it will help to have an understanding of the
facts of this case. Breiner explains that
In early December 2014, the plaintiff submitted all of his class paperwork
from Spencer’s “Problem-Solving” class to IDOC Education Director John Nally
in Indianapolis, Indiana. One form contained Klosowski’s signature but had
otherwise not been completed. The plaintiff used the WCF Law Library to type in
his name, IDOC number, date of course completion, and name of WCF Program
Director.
(Mem. Law Supp. Pl.’s Habeas Corpus Pet. 3, ECF No. 1-2.) Even before the hearing, he wrote,
“I submitted paperwork [to] the DOC-Central Office requesting time credit (the forms were

filled out by myself). This was a huge error in judgment on my part, for which I am asking
leniency.” (Report of Conduct 2, ECF No. 16-1.) It light of these statements, it is unclear why
Breiner denies that he confessed. He argues that he is not guilty because he did not put
Klosowski’s signature on the form. He thinks that because it really was Klosowski’s signature,
he must be innocent. However, the crimes of Counterfeiting and Forgery are not interpreted that
narrowly. Breiner admits that he put his personal information on a blank form that had been
signed by Klosowski. Doing so made it appear that Klosowski had approved his request for a
time cut. He also admitted to sending that form to the Central Office.
Indiana Code § 35-43-5-2(a) defines counterfeiting as knowingly or intentionally making
“a written instrument in such a manner that it purports to have been made . . . by another person
[or] by authority of one who did not give authority . . . .” Indiana Code § 35-43-5-2(b) defines
forgery as making “a written instrument in such a manner that it purports to have been made . . .
by another person [or] by authority of one who did not give authority” with the intent to defraud.
It is unnecessary for a counterfeiter to “fake” a signature. Breiner admits that he made a
document that purported to have been made and approved by Klosowski.1 He admits that he sent
it to the Central Office requesting a time cut. This is a confession and it is sufficient evidence of
his guilt. In determining the sufficiency of the evidence, the Court “need look no further than one
key piece of evidence: [his] confession.” Scruggs v. Jordan, 485 F.3d 934, 940 (7th Cir. 2007).
Nevertheless, the Court will now review the nine grounds he raises in his habeas corpus petition.
In Ground One, Breiner argues that, in violation of prison policy, he was denied the right
to call his former supervisor as a witness. However, the violation of a prison rule is not a basis

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This is similar to taking a signed blank check and filling in the payee and dollar amount without the
permission of the signatory. The signature is authentic, but the check is still counterfeit. So too here, the
authenticity of Klosowski’s signature is not relevant. What is relevant is that Klosowski did not approve
the time cut which the form purported that he was requesting.

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for habeas corpus relief.2 Estelle v. McGuire, 502 U.S. 62, 68 (1991). (“In conducting habeas
review, a federal court is limited to deciding whether a conviction violated the Constitution,
laws, or treaties of the United States.”). Nevertheless, an inmate has a constitutional right to
present relevant, exculpatory evidence during a prison disciplinary hearing that extends the
duration of his confinement. Wolff v. McDonnell, 418 U.S. 539, 566 (1974). Here, Breiner
requested a statement from Ms. Laura Spencer, but it was not obtained because she was no
longer an employee at the prison. Though Breiner argues that she lived close by and it would
have been easy to ask her for a statement, prison disciplinary hearing officers do not have the
power to compel a response from those outside the prison. See White v. Ind. Parole Bd., 266 F.3d
759, 768 (7th Cir. 2001). Moreover, Breiner has not explained how her testimony could have
been exculpatory. Breiner states that she and Klosowski argued, but that is not exculpatory.
Perhaps she would have testified that Breiner had earned the time cut and was entitled to it.
However, that would not be exculpatory either.
The question in this disciplinary hearing was not whether Breiner was entitled to a time
cut, but whether he created a counterfeit document which fraudulently purported that Klosowski
approved a time cut. Due process only requires access to witnesses and evidence that are
exculpatory. Rasheed-Bey v. Duckworth, 969 F.2d 357, 361 (7th Cir. 1992). Exculpatory in this
context means evidence which “directly undermines the reliability of the evidence in the record
pointing to [the prisoner’s] guilt.” Meeks v. McBride, 81 F.3d 717, 720 (7th Cir. 1996).
Moreover, the denial of evidence is harmless unless the prisoner shows that the evidence could
have aided his defense. Jones v. Cross, 637 F.3d 841, 847 (7th Cir. 2011). Thus, it was not a due
process violation to have not obtained a statement from Ms. Spencer.

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In other grounds, Breiner also argues that prison policies were violated. However, because this is not a
basis for habeas corpus relief, it is unnecessary to note this argument each time it is presented by Breiner.

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In Ground Two, Breiner argues that he was denied adequate notice of the charge against
him and adequate time to defend against an amendment to the charge. However, the charge was
not amended. Breiner mistakenly believes that he was “charged” when the investigator told him
he would be charged with fraud. That was not a charge, it was merely the statement of the
investigator. He was not charged until he was given the Conduct Report. He received that
document on January 29, 2015. (Report of Conduct 1.) It charged him with “Violation of any
State Law, Counterfeiting or [F]orgery” in violation of A-100. (Id.) The hearing was held five
days later on February 3, 2015. (Report of Disciplinary Hr’g 1, ECF No. 16-8.) At that hearing
he was found guilty of the same charge. Inmates must be given at least 24 hours’ notice of the
charges against them. Wolff, 418 U.S. at 564. Although Breiner argues that he did not have time
to go to the law library before his hearing, Wolff does not require law library access before a
disciplinary hearing. Therefore, this was not a denial of due process. See White, 266 F.3d at 768
(“Wolff . . . represents a balance of interests that should not be further adjusted in favor of
prisoners.”).
In Ground Three, Breiner argues that he was denied the assistance of a lay advocate of his
choice. He also argues that his lay advocate was ineffective. However, Breiner was not entitled to
a lay advocate. See Wolff, 418 U.S. at 570 (stating that a lay advocate is only required when the
inmate is illiterate or the issues are complex.); see also Miller v. Duckworth, 963 F.2d 1002, 1003–
04 (7th Cir. 1992); Wilson-El v. Finnan, 263 Fed. App’x 503, 506 (7th Cir. 2008). Breiner is not
illiterate—he was working as a teacher’s aide. (Mem. Law Supp. Pl.’s Habeas Corpus Pet. 2.) This
case was not too complex for him to defend given that he had already confessed even before he
was formally charged. Breiner was also very familiar with Indiana Code § 35-43-5-2 because he
has been convicted of violating that statute ten prior times in six different cases: State v. Breiner,

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46D02-1505-F6-446 (LaPorte Superior Ct.); State v. Breiner, 49G02-1401-FC-3675 (Marion
Superior Ct.); State v. Breiner, 01C01-1106-FC-10 (Adams Cir. Ct.); State v. Breiner, 02D061310-FC-321 (Allen Superior Ct.); State v. Breiner, 01C01-1108-FD-18 (Adams Cir. Ct.); and
State v. Breiner, 49G03-0405-FC-78481 (Marion Superior Ct.).
In Ground Four, Breiner argues that the sanction imposed by the DHO extended his
release date beyond his maximum release date. In support of his argument, Breiner has attached
a printout for one of his convictions showing the maximum release date for that conviction as
May 30, 2019. (Misc. Exhibits 27, ECF No. 1-1.). Breiner argues that this proves that the DHO
errored by writing March 26, 2020, on the Discipline Hearing Report as his new maximum
release date. This is not Breiner’s only conviction. The respondent has attached a copy of his
various sentences and release dates, which shows that the maximum release date for all of his
sentences is August 7, 2020. (Sentence Summ. 1, ECF No. 16-12.) Therefore, the DHO did not
impose a disciplinary sentence beyond his maximum release date.
In Ground Five, Breiner argues that he was not permitted to cross-examine Klosowski,
but he also acknowledges that he has no right to cross-examine witnesses. Piggie v. Cotton, 342
F.3d 660, 666 (7th Cir. 2003) (per curiam). He also argues that the DHO did not have a statement
from Klosowski. However, Breiner did not request a statement from him. (See Notice of
Disciplinary Hr’g (Screening Report) 1, ECF No. 16-4.) As previously explained, there was
sufficient evidence to have found Breiner guilty. The absence of a statement from Klosowski
was not a due process violation.
In Ground Six, Breiner argues that he was denied exculpatory evidence. Specifically, he
wanted to take a lie detector test and to have a hand writing analysis to demonstrate that he did
not sign Klosowski’s name on the form. Due process requires access to witnesses and evidence

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that are exculpatory. Rasheed-Bey, 969 F.2d at 361. However, as previously explained, it is not
relevant whether Breiner signed Klosowski’s name on the form. The fact that he prepared the
form using Klosowski’s signature without his consent and mailed it to the Central Office is
sufficient to demonstrate that he is guilty. Thus, neither a lie detector nor a hand writing analysis
that demonstrated that Breiner did not sign Klosowski’s name on the form would have been
exculpatory. Moreover, prisoners only have the right to request evidence which already exists,
not to demand the creation of new evidence. See Freitas v. Auger, 837 F.2d 806, 812 n.13 (8th
Cir. 1988) (“[The prisoner] was not entitled to a polygraph examination . . . .”); Rhatigan v.
Ward, 187 Fed. App’x 889, 890–91 (10th Cir. 2006) (inmates not entitled to laboratory testing of
substances); Arthur v. Ayers, 43 Fed. App’x. 56, 57 (9th Cir. 2002) (mem.).
In Ground Seven, Breiner argues that prison policy required the DHO to consider his
mental health status before finding him guilty. As previously explained, violations of prison
policy are not a basis for habeas corpus relief. Nevertheless, even if consideration of an inmate’s
mental health status was constitutionally mandated,3 the DHO did so in this case. (See ECF No.
18-1.)
In Ground Eight, Breiner argues that a guard improperly confiscated his property without
a confiscation slip when he was moved as a result of these charges. However, only the fact or
duration of confinement can be challenged in a habeas corpus proceeding. See Hadley v. Holmes,
341 F.3d 661, 664 (7th Cir. 2003) (per curiam). Nothing about the confiscation of this property is
relevant to whether Breiner is guilty of this charge or whether he is entitled to habeas corpus
relief.

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Wolff does not require consideration of mental health status as a part of prison disciplinary hearings, and
Wolff “should not be further adjusted in favor of prisoners.” White, 266 F.3d at 768.

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In Ground Nine, Breiner argues that he was denied the opportunity to be heard at the
disciplinary hearing because the screening officer took poor notes when he was screened.
Specifically, Breiner argues that “his correct statements to Kearby were that he legitimately
completed the ‘Problem-Solving’ class under Spencer’s supervision, that he never attempted any
fraudulent activity, and he never had access to any equipment papers or the like to engage in any
illegal conduct.” (Mem. Law Supp. Pl.’s Habeas Corpus Pet. 10.) However, nothing about the
notes taken during his screening prevented him from presenting these same statements to the
DHO. Moreover, as previously explained, it is irrelevant whether he properly completed the
Problem-Solving class. At the hearing, the DHO noted that Breiner said, “I forged no signatures.
That signature was not a forgery.” (Report of Disciplinary Hr’g 1.) He was clearly not prevented
from communicating his belief that he had not attempted any fraudulent activity. Finally, he
could have testified at the hearing that he did not have access to the equipment and papers
necessary to engage in illegal conduct, even though that would have contradicted his previous
(and current) statements that he prepared the document and sent it to the Central Office.
Nevertheless, he was clearly not prevented from testifying at the hearing as a result of the notes
made during his screening.

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For these reasons, the habeas corpus petition is DENIED.4 The clerk is DIRECTED to
close this case.
SO ORDERED on March 29, 2016.
s/ Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
FORT WAYNE DIVISION

4

Because Breiner is a state prisoner challenging a decision by a prison disciplinary board, a certificate of
appealability is not required. Evans v. Circuit Ct. of Cook Cnty., Ill., 569 F.3d 665, 666 (7th Cir. 2009)
(“[A] certificate of appealability is unnecessary when a state prisoner contends that a prison disciplinary
board, an entity within the state’s executive branch, has improperly rescinded some of the prisoner’s goodtime credits.”).

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