Boyd v. Superintendent

Filing 6

OPINION AND ORDER DENYING 1 Petition for Writ of Habeas Corpus pursuant to 28 USC 2244(d)(1). ***Civil Case Terminated. Signed by Judge Rudy Lozano on 10/29/13. (smp)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JOSIAH BOYD

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Petitioner,
vs.
SUPERINTENDENT,
Respondent.

NO. 3:13-CV-336

OPINION AND ORDER
This matter is before the Court on the Petition under 28
U.S.C. Paragraph 2254 for Writ of Habeas Corpus by a Person in
State Custody filed by Josiah Boyd, a pro se prisoner, on April 22,
2013. For the reasons set forth below, the court DENIES the
petition

for

writ

of

habeas

corpus

pursuant

to

28

U.S.C.

§

2244(d)(1), and DIRECTS the Clerk to close this case.

BACKGROUND
Josiah

Boyd,

a

pro

se

prisoner,

was

found

guilty

of

threatening in violation of B-213 by the Disciplinary Hearing Body
(DHB) at the Miami Correctional Facility on July 6, 2012, under
cause number MCF 12-06-441. He was sanctioned with the loss of 60
days earned credit time, the imposition of a suspended 30 day loss
of earned credit time, and demoted from credit class 2 to credit
class 3. Boyd lists four grounds in his habeas corpus petition: (1)

that he was denied the right to present documentary evidence, (2)
that he was denied a copy of the findings of fact, (3) that he was
denied an impartial decision maker, and (4) that he was denied the
right to speak at the hearing.

DISCUSSION
The respondent argues that Boyd has procedurally defaulted the
first three grounds because he did not raise them during his
administrative appeal. This is correct. “[T]o exhaust a claim, and
thus preserve it for collateral review under § 2254, a prisoner
must present that legal theory to the . . . Final Reviewing
Authority . . ..” Moffat v. Broyles, 288 F.3d 978, 982 (7th Cir.
2002). The form used by Boyd to file both his habeas corpus
petition and his traverse ask him to explain why he did not exhaust
any claim that he did not raise during his administrative appeal.
DE 1 at 7 and DE 5 at 5. Boyd left both of these questions blank
and has provided the court with no explanation for excusing his
procedural default. Therefore because Boyd did not raise the first
three grounds during his administrative appeal (see DE 4-4 at 1),
they cannot be a basis for habeas corpus relief.
Boyd’s fourth, and only exhausted ground, is that he was
denied the right to speak at his hearing. The Disciplinary Hearing
Report states that he “Refused to participate.” DE 4-3. In his
petition, Boyd wrote, “I was not present. The reason being is that

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it was held outside of my presence. I never had a chance to testify
if I wanted to. I was never informed by any member of the
disciplinary hearing committee why this was done.” DE 1 at 6. In
his traverse, Boyd did not present any argument in relation to
ground four. See DE 5 at 5. Boyd does not say that he did not
refuse to participate. He does not even say that he wanted to
testify, much less what he would have testified. “[T]he petitioner
bears

the

burden

of

proving

his

habeas

claim,”

Quintana

v.

Chandler, 723 F.3d 849, 854 (7th Cir. 2013), but Boyd has not done
so. The uncontradicted evidence in this record is that he refused
to participate in his hearing. Therefore it was not a due process
violation to have conducted it without him. Cf. Rodriguez v.
Briley, 403 F.3d 952, 953 (7th Cir. 2005) (“He cannot, in short, be
permitted to engineer an Eighth Amendment violation.”) Neither can
he engineer a due process violation merely by refusing to attend.
Finally, despite his protestations to the contrary, there is
evidence that he is guilty of threatening: Sgt. Rush heard him say,
“the first chance I get out of seg unit. I will attack and stab the
first staff person I can get to.” DE 4-1. Boyd asserts that this
statement alone is not sufficient because it was not recorded or
witnessed by someone else. This is simply not the law. “Prison
disciplinary proceedings are not part of a criminal prosecution,
and the full panoply of rights due a defendant in such proceedings
does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974).

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However,

even

statement

of

in
a

a

criminal

single

prosecution,

witness

is

the

sufficient

uncorroborated
to

support

a

conviction. Weiler v. United States, 323 U.S. 606, 608 (1945).
(“Triers of fact in our fact-finding tribunals are, with rare
exceptions, free in the exercise of their honest judgment to prefer
the testimony of a single witness to that of many.”) In the prison
disciplinary setting, a conduct report alone may be sufficient
evidence to support a finding of guilt. See McPherson v. McBride,
188 F.3d 784, 786 (7th Cir. 1999). Such is the case here.

CONCLUSION
For the foregoing reasons, the court DENIES this petition for
writ of habeas corpus, and DIRECTS the Clerk to close this case.

DATED:

October 29, 2013

/s/RUDY LOZANO, Judge
United States District Court

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