Swann v. Superintendent
Filing
10
OPINION AND ORDER denying 2 Petition for Writ of Habeas Corpus. Signed by Chief Judge Philip P Simon on 3/17/2015. (rmc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
TERRANCE D. SWANN,
Petitioner,
v.
SUPERINTENDENT,
Respondent.
)
)
)
)
)
)
)
)
)
Case No. 3:14CV1920-PPS
OPINION AND ORDER
Terrance D. Swann, a pro se prisoner, filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 challenging a prison disciplinary proceeding. (DE 2.) A
hearing officer at Westville Correctional Facility found Swann guilty of receiving from any
person anything of value and conspiring and attempting to do the same. (DE 6-3.)
Swann was charged with trying to get a Green Dot card through his mother and
another person from outside of Westville. Green Dot is a prepaid debit card. See
www.greendot.com. The charges were initiated on June 26, 2014, when Correctional
Officer R. Mackel prepared a conduct report, which stated:
On 6/26/2014 at approximately 9:00 AM, I, officer R. Mackel, monitored an
offender phone call made from WCU C pod phones on 06/05/2014 at 7:31
PM. Offender Swann, Terrance, DOC 956680, who was housed on C6 202,
called ph #3177275394 and instructed callee to call Angela on Saturday at ph
#5743704068, tell her you are calling for her son and take the green dot
numbers for $40[.] This phone number is on the phone list of offender
Felder, Matthew, DOC 166616, who is housed on C6 205, as his mother,
Angela Felder. Offender Swann calls again on 6/9/2014 at 7:29 PM and
confirms that callee picked up the money from Angela.
I then monitored offender Felder’s calls. Felder called ph #5743704068 on
6/1/2014 at 5:07 PM and instructed callee to get $40 for him. Felder calls this
callee again on 6/6/2014 at 10:39 PM and tells her they are supposed to call
her for that money.
Offender Swann is conspiring with offender Felder and their contacts to
receive a $40 green dot number from offender Felder by having their contacts
transfer the money.
This is prohibited by WCC ADP offense 240/233.
(DE 6-1.)
On July 8, 2014, Swann was notified of the charges when he was served with the
conduct report and the notice of disciplinary hearing. (DE 6-2 at 1.) Swann was notified
of his rights; he pleaded not guilty and did not request a lay advocate, any witnesses or
physical evidence. (DE 6-2 at 1.)
After a number of continuances due to time constraints, a hearing officer conducted
the disciplinary hearings on August 6, 2014. (DE 6-2 at 2-5, 6-3.) Swann refused to attend
the hearing, but provided a written statement requesting a reduced sanction. (DE 6-3 at
1, 2.) The hearing officer, relying on the conduct report and Swann’s written statement,
found Swann guilty. (DE 6-3.) The hearing officer imposed a 60-day deprivation of earned
time credit. Swann’s appeals were denied and this petition followed. (DE 6-4, 6-5.)
When prisoners lose earned time credits in a prison disciplinary hearing, they are
entitled to certain protections under the Due Process Clause: (1) advance written notice of
the charges; (2) an opportunity to be heard before an impartial decision maker; (3) an
opportunity to call witnesses and present documentary evidence in defense when
2
consistent with institutional safety and correctional goals; and (4) a written statement by
a fact finder of evidence relied on and the reasons for the disciplinary action. Wolff v.
McDonnell, 418 U.S. 539, 563 (1974). To satisfy due process, there must also be “some
evidence” to support the hearing officer’s decision. Superintendent, Mass. Corr. Inst. v. Hill,
472 U.S. 445, 455 (1985).
Here, Swann raises three claims in his petition: (1) Department of Corrections policy
was violated when the disciplinary hearing was delayed; (2) the name of the charged
offense was modified; and (3) the evidence was insufficient to find him guilty.
First, Swann complains that the Department of Corrections policy was violated
when his hearing was continued beyond fourteen (14) days from the original hearing date.
However, relief in a federal habeas corpus proceeding is only available for a violation of
the United States Constitution or other federal law. Estelle v. McGuire, 502 U.S. 62, 67-68
(1991). Swann’s claim premised on an alleged violation of a prison policy does not provide
a basis for granting federal habeas relief.
Swann next argues that he was originally charged with the offense of
“conspire/attempt to commit any Class B offense/receiving from any person, anything of
value” but was found guilty of “bribing/giving.” As a threshold matter, the respondent
says that this claim is procedurally defaulted because Swann did not raise it in his appeal
to the facility head. (DE 6 at 5.) A prisoner seeking habeas relief is required to exhaust his
claims at all levels of the administrative process, and his failure to do so results in a
procedural default. Eads v. Hanks, 280 F.3d 728, 729 (7th Cir. 2002); Markham v. Clark, 978
3
F.2d 993, 995 (7th Cir. 1992). Swann did not include this claim at the administrative level.
(See DE 2 at 5.) Accordingly, this claim is procedurally defaulted.
Not only is the claim procedurally defaulted, but it has no merit. Though Wolff, 418
U.S. 539, requires advance notice of sufficient facts to inform the accused of the behavior
with which he is charged, it does not require such a notice to specify the specific name or
number of the rule violation, its severity, nor the case number assigned to the matter. It is
for this reason that Northern v. Hanks, 326 F.3d 909, 911 (7th Cir. 2003) held that there was
no due process violation where the Final Reviewing Authority changed the charge on
appeal – long after the hearing. The Seventh Circuit reasoned that, “[b]ecause the factual
basis of the investigation report gave [him] all the information he needed to defend against
the . . . charge, the reviewing authority’s modification did not deprive [him] of his due
process rights.” Id. Here, the change in the offense name made no substantive difference
to the factual basis of the charge against him. Therefore, this ground presents no basis for
habeas relief.
Finally, Swann argues there was insufficient evidence to find him guilty. This claim,
too, was not presented at the administrative level. (DE 2 at 5.) As such, it is procedurally
defaulted as well. Nevertheless, there was sufficient evidence to find Swann guilty. The
“some evidence” test is not a demanding one. Superintendent v. Hill, 472 U.S. 445, 455
(1985). “Ascertaining whether this standard is satisfied does not require examination of the
entire record, independent assessment of the credibility of witnesses, or weighing of the
evidence.” Id. “Instead, the relevant question is whether there is any evidence in the record
4
that could support the conclusion reached by the disciplinary board.” Id. at 455-56. A
disciplinary determination will be overturned on the basis of insufficient evidence only if
“no reasonable adjudicator could have found [the prisoner] guilty of the offense on the
basis of the evidence presented.” Henderson v. United States Parole Comm’n, 13 F.3d 1073,
1077 (7th Cir. 1994).
In this case, the conduct report reveals that offender Felder called his mother and
instructed her to get $40 in Green Dot numbers for him. (DE 6-1.) He then called back a
few days later to let her know that she would be getting a call for that money. (DE 6-1.)
Swann then made phone calls instructing the person he was calling to contact offender
Felder’s mother and obtain Green Dot numbers for $40. (DE 6-1.) Swann called back to
confirm that the person had obtained the money from Felder’s mother. (DE 6-1.) The
conduct report alone constitutes some evidence that Swann was attempting to accept
something of value - $40 placed on a Green Dot card - from Felder. McPherson v. McBride,
188 F.3d 784, 786 (7th Cir. 1999) (conduct report alone provided “some evidence” to
support disciplinary determination).
This evidence more than satisfies the “some
evidence” standard.
In sum, there has been no showing that Swann was deprived of due process. Based
on the record, there is sufficient evidence to find Swann attempting to receiving anything
of value from another person, a Class B offense 240/233 under the institution’s disciplinary
code. (DE 6-5).
5
For the reasons set forth above, the petition (DE 2) is DENIED.
SO ORDERED.
ENTERED: March 17, 2015
Philip P. Simon
Chief Judge
United States District Court
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?