Baker v. Superintendent

Filing 5

OPINION AND ORDER: The habeas corpus petition is DENIED WITHOUT PREJUDICE because it is unexhausted. Signed by Senior Judge James T Moody on 4/19/2016. cc: Baker (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ALBERT L. BAKER,
Petitioner,
v.
SUPERINTENDENT,
Respondent.

)
)
)
)
)
)
)
)
)

CAUSE NO. 3:16-CV-035 JM

OPINION AND ORDER
Albert L. Baker, a pro se prisoner, filed a habeas corpus petition (DE # 1)
attempting to challenge the prison disciplinary hearing (BTC 14-03-181) where a
Branchville Correctional Facility Disciplinary Hearing Officer (“DHO”) found him
guilty of Security Threat Group Material in violation of B-208. His loss of earned credit
time was originally suspended, but subsequently imposed.
In his petition, Baker states that he did not appeal to the Final Reviewing
Authority. However, before bringing a habeas corpus challenge, a prisoner must
exhaust his claims as required by 28 U.S.C. § 2254(b).
Indiana does not provide judicial review of decisions by prison
administrative bodies, so the exhaustion requirement in 28 U.S.C. §
2254(b) is satisfied by pursuing all administrative remedies. These are, we
held in Markham v. Clark, 978 F.2d 993 (7th Cir. 1992), the sort of “available
State corrective process” (§ 2254(b)(1)(B)(i)) that a prisoner must use.
Indiana offers two levels of administrative review: a prisoner aggrieved
by the decision of a disciplinary panel may appeal first to the warden and
then to a statewide body called the Final Reviewing Authority. Moffat
sought review by both bodies, but his argument was limited to the
contention that the evidence did not support the board’s decision. He did
not complain to either the warden or the Final Reviewing Authority about
the board’s sketchy explanation for its decision. O’Sullivan v. Boerckel, 526
U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999), holds that to exhaust a claim,
and thus preserve it for collateral review under § 2254, a prisoner must

present that legal theory to the state’s supreme court. The Final Reviewing
Authority is the administrative equivalent to the state’s highest court, so
the holding of Boerckel implies that when administrative remedies must
be exhausted, a legal contention must be presented to each administrative
level.
Moffat v. Broyles, 288 F.3d 978, 981-82 (7th Cir. 2002).
Here, Baker’s loss of earned credit time was originally suspended and so he
could not immediately appeal to the Final Reviewing Authority. However, once the loss
of earned credit time was imposed, he was required to do so before filing a habeas
corpus challenge. Because he did not, this petition must be denied without prejudice.
For these reasons, the habeas corpus petition is DENIED WITHOUT
PREJUDICE because it is unexhausted.
SO ORDERED.
Date: April 19, 2016
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT

2