Ice v. Superintendent

Filing 2

OPINION AND ORDER re 1 PETITION for Writ of Habeas Corpus filed by Petitioner Donte Ice. The Petition is DENIED pursuant to Habeas Corpus Rule 4. Clerk DIRECTED to close this case. Petitioner DENIED leave to proceed in forma pauperis on appeal. Signed by Judge Rudy Lozano on 4/18/17. (Copy mailed to pro se party).(cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DONTE ICE,
Petitioner,
vs.
SUPERINTENDENT,
Respondent.

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CAUSE NO. 3:16-cv-154

OPINION AND ORDER
This matter is before the Court on the Petition under 28
U.S.C. Paragraph 2254 for Writ of Habeas Corpus, filed by Donte
Ice, a pro se prisoner. For the reasons set forth below, the
petition (ECF 1) is DENIED pursuant to Habeas Corpus Rule 4. The
clerk is DIRECTED to close this case. Donte Ice is DENIED leave to
proceed in forma pauperis on appeal.

BACKGROUND
In

his

petition,

Ice

challenges

the

prison

disciplinary

hearing (MCF 15-10-290) where he was found guilty of Possession or
Use of Controlled Substance in violation of Indiana Department of
Correction (IDOC) policy A-106. ECF 1 at 1. The Conduct Report
states that on October 15, 2015, Sergeant Uhle conducted a search
of Ice’s cell with his canine partner. ECF 1-1 at 12. Uhle’s canine
partner signaled that there was contraband in Ice’s property box.

Id. Uhle’s search of the property box revealed an altered BBQ sauce
bottle containing a secret compartment. Id. Within the secret
compartment Uhle discovered “a white powdery substance wrapped in
cellophane.” Id. Uhle issued Ice a disciplinary ticket pursuant to
IDOC B-202. Id.
Ice’s

hearing

was

held

on

November

5,

2015,

by

the

Disciplinary Hearing Officer (DHO). Id. Ice was sanctioned with
the loss of 90 days earned credit time and was demoted from Credit
Class 1 to Credit Class 2. Id. Ice lists three grounds which he
claims entitles him to relief.

DISCUSSION
In Grounds One and Two, Ice lists a number of overlapping
issues regarding the procedure and substance of his disciplinary
hearing. Each of these issues relates to the sufficiency of the
evidence the DHO relied upon in determining that Ice was guilty.
In the disciplinary context, the DHO needs only a small amount
of evidence on which to find an inmate guilty. “[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. 445, 455-56 (1985). “In reviewing
a decision for some 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

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prison disciplinary board’s decision to revoke good time credits
has some factual basis.” McPherson, 188 F.3d at 786 (quotation
marks omitted).
[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. Although some evidence is not
much, it still must point to the accused’s guilt. It is
not our province to assess the comparative weight of the
evidence underlying the disciplinary board’s decision.
Webb v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000) (quotation
marks, citations, parenthesis, and ellipsis omitted). A Conduct
Report alone can be sufficient evidence to support a finding of
guilt. McPherson, 188 F.3d at 786.
Here, there was sufficient evidence to find Ice guilty of
Possession

or

Use

of

Controlled

Substance.

The

IDOC

defines

Possession or Use of Controlled Substance, offense B-202, as
follows:

“[p]ossession

or

use

of

any

unauthorized

substance

controlled pursuant to the laws of the State of Indiana or the
United States Code or possession of drug paraphernalia.” Adult
Disciplinary

Process,

Appendix

I:

Offenses.

http://www.in.gov/idoc/files/02-04-101_APPENDIX_I-OFFENSES_6-12015(1).pdf. The contraband was found in Ice’s property box. ECF
1-1 at 12. Ice admits that he was in possession of the bottle
containing the white powdery substance. ECF 1-1 at 9. Though Ice

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argues that he was not aware that the BBQ sauce bottle contained
contraband, the DHO did not have to believe him. It was not
arbitrary for the DHO to not believe him because it was found in
his property. However, even if Ice did not know, the IDOC did not
make intent an element of B-202. Rather, possession alone is
sufficient to violate this policy.
Ice argues that the substance found in his cell should have
been tested to conclusively determine that the white powder was a
controlled substance. Ice is incorrect. Though prisoners have a
right to submit relevant exculpatory evidence, they do not have
the right to create evidence which does not already exist because
“[p]rison officials must have the necessary discretion to keep the
hearing within reasonable limits.” Wolff, 418 U.S. at 566. See
also Portee v. Vannatta, 105 F. App’x 841, 843 (7th Cir. 2004)
(upholding disciplinary officer’s denial of inmate’s request for
DNA testing). Uhle’s canine partner signaled that Ice’s property
box contained contraband. Uhle then discovered the white powdery
substance in Ice’s property box. In light of this evidence, the
DHO’s determination was not arbitrary. IDOC’s decision not to send
the contraband to a lab for official testing is not a basis for
habeas corpus relief.
Ice also asserts that he is entitled to relief based on the
alleged “lack of chain of custody.” ECF 1 at 2. According to Ice,
the lack of a chain of custody denied him due process. However,

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“[p]rison disciplinary proceedings are not part of a criminal
prosecution, and the full panoply of rights due a defendant in
such proceedings does not apply.” Wolff, 418 U.S. at 556. In prison
disciplinary cases, due process does not require a complete chain
of custody. Rather, “[a]bsent some affirmative indication that a
mistake may have been made, [the] hypothetical possibility of
tampering does not render evidence inadmissible, but goes instead
to the weight of the evidence.” Webb v. Anderson, 224 F.3d 649,
653 (7th Cir. 2000). Here, there is no affirmative indication of
a mistake. Therefore, the lack of a chain of custody report is not
a basis for habeas corpus relief.
In Ground Three, Ice claims that he is entitled to relief
because the “evidence supports [a] lesser included offense.” ECF
1 at 2. Ice is incorrect. The harshness of the punishment imposed
is not a valid basis for challenging a DHO’s decision, so long as
the punishment is within the range designated for the offense. Cf.
United States ex rel. Long v. Pate, 418 F.2d 1028, 1031 (7th Cir.
1970) (where a sentence is “within the range established by the
legislature … this court will not [on habeas corpus review]
question the trial judge’s discretion in imposing sentence…”).
Here, IDOC policy sets the maximum loss of earned credit time for
a Class B offense as three-months. Disciplinary Code for Adult
Offenders.

http://www.in.gov/idoc/files/02-04-

101_The_Disciplinary_Code_for_Adult_Offenders___6-1-2015.pdf. Ice

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lost 90 days of his earned credit time. IDOC policy sets the
maximum credit class reduction for a Class B offense as one-class
demotion. Ice received a one-class demotion. Id. Because the DHO
sentenced

Ice

within

the

appropriate

guidelines,

Ice

is

not

entitled to habeas corpus relief based on Ground Three.
If Ice wants to appeal this order, he does not need a
certificate of appealability because he is challenging a prison
disciplinary proceeding. See Evans v. Circuit Court, 569 F.3d 665,
666 (7th Cir. 2009). However, he may not proceed in forma pauperis
on appeal because pursuant to 28 U.S.C. § 1915(a)(3) an appeal in
this case could not be taken in good faith.

CONCLUSION
For the reasons set forth above, the petition (ECF 1) is
DENIED pursuant to Habeas Corpus Rule 4. The clerk is DIRECTED to
close this case. Donte Ice DENIED leave to proceed in forma
pauperis on appeal.

DATED: April 18, 2017
/s/RUDY LOZANO, Judge
United States District Court

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