Pierce v. Superintendent
OPINION AND ORDER DENYING 1 PETITION for Writ of Habeas Corpus filed by Ronald J Pierce. Clerk DIRECTED to enter judgment accordingly. Signed by Judge Robert L Miller, Jr on 1/31/17. (cc: Ronald J Pierce). (cer)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
RONALD J. PIERCE,
CAUSE NO. 3:16-CV-031 RM
OPINION AND ORDER
Ronald J. Pierce, a pro se prisoner, filed a habeas petition under 28 U.S.C.
§ 2254 challenging a disciplinary determination made by a hearing officer at
Indiana State Prison (“ISP”) under case number ISP 15-05-0238, where Mr. Pierce
was found guilty of possessing a controlled substance and sanctioned with the
loss of 60 days earned credit time.
Prisoners who lose earned time credits in a prison disciplinary hearing 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 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). Mr.
Pierce argues there was insufficient evidence to support the conviction.
“In reviewing a decision for some evidence, [the court is to] determine
whether the prison disciplinary board’s decision to revoke good time credits has
some factual basis.” McPherson v. McBride, 188 F.3d 784, 786 (7th Cir. 1999)
(quotation marks omitted). “[T]he relevant question is whether there is any
evidence in the record that could support the conclusion reached by the
disciplinary board.” Superintendent v. Hill, 472 U.S. at 455-456. “[T]he findings
of a prison disciplinary board [need only] have the support of some evidence in the
record. This is a lenient standard, requiring no more than a modicum of evidence.
Even meager proof will suffice, so long as the record is not so devoid of evidence
that the findings of the disciplinary board were without support or otherwise
arbitrary.” Webb v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000) (quotation marks
and citations omitted). The conduct report alone can provide some evidence.
McPherson v. McBride, 188 F.3d at 786(conduct report alone provided some
evidence to support disciplinary determination).
Officer Wilgus prepared a conduct report stating:
On 2-21-15 at approx. 10:45 pm I ofc. R. Wilgus and ofc E. Collins
were shaking down offender Pierce #903145 cell 325 W when I ofc. R.
Wilgus found a bag filled with drugs hidden behind a piece of
cardboard on the cell door. In the bag was a green leafy [substance]
along with a cell phone charger.
Photographs of the evidence were taken and the items were confiscated. The green
leafy substance tested positive for marijuana. Officer Collins also provided a
On 2/21/15 [at] approximately 10:45 pm I ofc. E. Collins [and] ofc
Wilgus were conducting a Routine Shakedown on cell 325W CCharles on offender Pierce 903145. I witnessed ofc. Wilgus pull an
unknow[n] drug substance from behind a piece of cardboard taped to
the inside of the cell door.
This is some evidence sufficient to find Mr. Pierce guilty of possessing a controlled
substance. Mr. Pierce claims that the evidence was insufficient for three reasons.
First, Mr. Pierce notes that Offender Washington provided a statement
saying that he (Washington) was the owner of the controlled substance and that
he had placed it in Mr. Pierce’s cell door. Assessing credibility is the hearing
officer’s function, McPherson v. McBride, 188 F.3d at 786, and the hearing officer
in this case wasn’t required to credit Offender Washington’s statement. Although
Mr. Pierce denies that the marijuana belonged to him and asserts that it belonged
to Offender Washington, it is not the province of this court to reweigh the evidence
or make its own determination regarding the credibility of the witnesses. Id.
Second, Mr. Piece claims that there is video evidence “clearly” showing
someone entered his cell at the same time Offender Washington claimed to have
entered it. That’s not quite accurate. Offender Washington claimed to have entered
Mr. Pierce’s cell in the morning on February 27, but didn’t state any specific time.
And the summary of review of the video footage states that “due to poor visibility,
offender movement, and camera focus” the hearing officer couldn’t identify
Offender Washington entering or exiting the range. The court has viewed the video
and finds that the hearing officer is correct; it isn’t possible to discern any
individual’s identity from it. The video footage contains no exculpatory evidence.
Meeks v. McBride, 81 F.3d 717, 721 (7th Cir. 1996) (exculpatory evidence is that
which “directly undermines the reliability of the evidence in the record . . ..”).
Third, Mr. Pierce claims that the evidence was insufficient to find that he
possessed the contraband because it was found in a common area rather than on
him or in his living quarters. The conduct report and Officer Collins’ corroborating
statement — which the hearing officer was free to believe — say the marijuana
wasn’t found in a common area; it was found behind a piece of cardboard “inside
of the cell door.” A hearing officer is permitted to rely on circumstantial evidence
to establish guilt. See Hamilton v. O’Leary, 976 F.2d 341, 345 (7th Cir. 1992). The
record needn’t contain evidence of actual possession of contraband, as long as
there is sufficient evidence of constructive possession. Id. at 345-346. There is
sufficient evidence of constructive possession in this case because the contraband
was found inside Mr. Pierce’s cell door rather than in a common area. See Hill v.
Superintendent, 472 U.S. at 457 (“Although the evidence in this case might be
characterized as meager, and there was no direct evidence identifying any one of
three inmates as the assailant, the record is not so devoid of evidence that the
findings of the disciplinary board were without support or otherwise arbitrary.”);
Hamilton v. O’Leary, 976 F.2d 341. 345-46 (7th Cir. 1992) (evidence of
constructive possession was sufficient, since contraband was found in a location
where only the petitioner and three other inmates could have left it); see also Pigg
v. Finnan, 289 Fed. Appx. 945, 947 (7th Cir. Aug. 18, 2008) (“When only a few
inmates have access to the place contraband is found, constructive possession is
‘some evidence’ sufficient to sustain a disciplinary conviction.”).
For these reasons, the court DENIES the petition. The clerk shall enter
ENTERED: January 31 , 2017
/s/ Robert L. Miller, Jr.
United States District Court
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