Terrell v. Superintendent
Filing
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OPINION AND ORDER granting 1 Petition for Writ of Habeas Corpus; orders respondent to remove the finding of guilt for WCC13-05-0029 from Marvin Terrell's record; respondent to restore Terrell's 30 days lst credit time and time lost as result of having been demoted from Credit Class 1 to Credit Class 2; and orders respondent to send proof of compliance with this order by 12/16/2013. Signed by Senior Judge James T Moody on 11/25/2013. (kds)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
MARVIN DELANE TERRELL,
Petitioner,
v.
SUPERINTENDENT,
Respondent.
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No. 3:13 CV 734
OPINION and ORDER
Marvin Delane Terrell, a pro se prisoner, was found guilty of Attempting to
Engage in an Unauthorized Financial Transaction in violation of B-220 by the
Disciplinary Hearing Body (DHB) at the Westville Correctional Facility on May 20,
2013, under cause number WCC 13-05-0029. He was sanctioned with the loss of 30 days
earned credit time and demoted from Credit Class 1 to Credit Class 2. Though Terrell
lists five grounds for challenging this proceeding, the only basis for granting him
habeas corpus relief is that there is not evidence that he is guilty.
Terrell is not only a prisoner, he is also a student enrolled at Indiana UniversityPurdue University Fort Wayne. (DE # 1 at 11-12.) In this disciplinary proceeding, the
factual basis for the charge of Attempting to Engage in an Unauthorized Financial
Transaction were four letters to private organizations seeking financial aid for his
higher education. The Report of Conduct said:
On 5/2/13 I Officer C. Gann was making legal copies in the law
library at approximately 8:00 a.m. I came to Marvin Terrell’s legal copies
and observed it was not legal material. Offender Terrell wrot typed up
letters to: Northern Indiana Giving Program, Ford Motor Company, H&R
Block Foundation, & the Smock Foundation requesting for financial
assistance regarding his student loans. See attached: eight pieces of paper
(typed letters), photocopy request, & request for remittance.
(DE # 4-1 at 1, strikeout in original.) The respondent argues that this is sufficient to find
that Terrell attempted to engage in an unauthorized financial transaction. (DE # 4 at 5.)
Based on the conduct report, there is evidence to find that Terrell attempted to engage
in a financial transaction, but there is no indication that it was unauthorized. The
respondent argues that Terrell had access to the “rule book” and therefore knew that
the transaction was unauthorized. (DE # 4 at 7.) However the “rule book” states:
220
Engaging in or possessing materials used for unauthorized
financial transactions. This includes, but is not limited to, the use of
possession of identifying information of credit cards, debit cards, or
any other card used to complete a financial transaction.
(DE # 7-1 at 2.) Nothing in this definition gives any hint that a prisoner who is
legitimately enrolled in college may not apply for financial assistance from
organizations which provide such assistance. Nothing in this definition explains why or
how a financial transaction is unauthorized. Though clearly the rule encompasses
illegal, fraudulent, and deceptive activities, none of the letters at issue here fall into any
of those categories. (See DE # 4-1 at 3-10.) So too, this rule would obviously prohibit a
financial transaction related to an unauthorized activity, but here there is no evidence
that Terrell was not legitimately enrolled in college. As such, the rule on its face does
not give any indication that applying for publically available “scholarships” to pay for
college is any more unauthorized than writing to a family member and asking for the
same thing – or to pay for snacks from the commissary for that matter.
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Because the respondent’s brief and the administrative record had not explained
what evidence in the record demonstrated that these letters were “unauthorized,” the
court granted the respondent until November 7, 2013, to supplement the return. That
deadline passed, but the respondent did not reply. Based on the absence of evidence in
this record that Terrell’s letters were unauthorized financial transactions and the
respondent’s inability to produce any additional evidence or argument, the habeas
corpus petition will be granted because there is not “some evidence” in the record that
Terrell is guilty. See Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455 (1985).
For the foregoing reasons, the court:
(1) GRANTS the habeas corpus petition (DE # 1);
(2) ORDERS the respondent to remove the finding of guilt for WCC 13-05-0029
from Marvin Delane Terrell’s record;
(3) ORDERS the respondent to restore to Marvin Delane Terrell the 30 days lost
credit time and the time lost as a result of having been demoted from Credit Class 1 to
Credit Class 2; and
(4) ORDERS the respondent to send proof of compliance with this order by
December 16, 2013.
SO ORDERED.
Date: November 25, 2013
s/James T. Moody________________
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT
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