Hill v. Superintendent

Filing 9

OPINION AND ORDER DENYING 1 Petition for Writ of Habeas Corpus filed by Petitioner Ivory Q Hill. This case is DISMISSED. Signed by Judge William C Lee on 3/24/2017. (Copy mailed to pro se party)(lns)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
IVORY Q. HILL,
Petitioner,
v.
SUPERINTENDENT,
Respondent.

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CAUSE NO. 3:16-CV-103 WL

OPINION AND ORDER
Ivory Q. Hill, a pro se prisoner, filed a habeas corpus petition challenging REF 15-10-001,
a prison disciplinary proceeding held at the Indianapolis Re-entry Educational Facility. On October
2, 2015, the Disciplinary Hearing Officer (DHO) found him guilty of Use and/or Possession of a
Cellular Telephone or Other Wireless Device in violation of A-121. As a result, he was sanctioned
with the loss of 120 days earned credit time and a demotion to Credit Class 2.
In his petition, he raises two grounds to challenge the finding of guilt: (1) he was denied an
impartial decision maker; and (2) the evidence was insufficient to find him guilty.
As to the first ground, Hill’s acknowledges that he did not present it to the Final Reviewing
Authority. (DE 1 at 2). In habeas corpus proceedings, the exhaustion requirement is contained in 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
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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).
Because Hill concedes that he did not present this ground to the Final Reviewing Authority,
it is procedurally defaulted. Nevertheless, procedural default can be excused and the court can
consider a claim that was not properly raised if a petitioner can demonstrate cause and prejudice.
Weddington v. Zatecky, 721 F.3d 456, 465 (7th Cir. 2013). Here, Hill fails to demonstrate either.
Instead, he merely states that he did not know he should have raised that claim. (DE 1 at 2.)
However, “it is well established in this Circuit that circumstances such as youth, lack of education,
and illiteracy are not external impediments within the context of excusing procedural default.”
Harris v. McAdory, 334 F.3d 665, 669 (7th Cir. 2003). Indeed, Harris went on to hold that neither
mental retardation, mental deficiencies, nor mental illness demonstrate cause to excuse procedural
default. Therefore, Hill’s ignorance does not excuse the procedural default.
Second, Hill claims there was insufficient evidence to find him guilty of Use and/or
Possession of a Cellular Telephone or Other Wireless Device. In reviewing a disciplinary
determination for sufficiency of the evidence, “courts are not required to conduct an examination
of the entire record, independently assess witness credibility, or weigh the evidence, but only
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). “[T]he relevant question
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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. 445, 455-56 (1985). The court will overturn
the hearing officer’s decision 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). Additionally, 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).
Hill was found guilty of Class A offense 121, which is defined as “unauthorized use or
possession of any cellular telephone or other wireless or cellular communications device.” In this
case, it is clear that the record in this case contains at least “some evidence” to support the hearing
officer’s determination that Hill was guilty. The conduct report states:
On 9/30/15 [at] approximately 7:41 AM I officer George Edmonds witnessed
resident Ivory Hill #157982 standing looking down at the cell phone in his hand,
with residents Cornelius Powell 910860, Myron McKnight 894255, Eric McNeal
147483 all in a huddle looking down at the cell phone in Resident Hill’s hand. I
Edmonds order[ed] Hill after he began to walk away to hand I Edmonds the cell
phone in his hand. Hill stated “he don’t have anything.” Then I Edmonds witnessed
Hill continue to move around towards Cornelius Powell 910220 who stood behind
Hill. I Edmonds witnessed Hill hand Powell an object then walked away. I Edmonds
order[ed] Hill again not to move. I order[ed] Hill for his coat. I Edmonds witnessed
in Hill’s coat (black) pocket an open pack of New Poets cigarettes with a black cell
phone charger inside a white work glove. I Edmonds confiscated items and called on
cell phone Lt. Phearson.
(DE 4-1.)
Also, at the disciplinary hearing, Hill admitted that a cell phone charger was found in his pocket at
the time of the incident. (DE 4-3.) Hill’s admission and the conduct report are some evidence that
Hill possessed an unauthorized cellular device. McPherson, 188 F.3d at 786 (7th Cir. 1999) (conduct
report alone provided some evidence to support disciplinary determination). Again, Edmonds
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observed Hill had a cellular telephone in his hand and then found a phone charger in Hill’s coat
pocket. Although Hill denies that he possessed a cellular telephone, it is not the province of this
court to re-weigh evidence. Because there is some evidence to support the hearing officer’s
determination, there is no basis for granting habeas relief on this ground.
For the reasons set forth above, the court DENIES the petition and this case is DISMISSED.

ENTERED: March 24, 2017
s/William C. Lee
William C. Lee, Judge
United States District Court

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