Morgan v. Superintendent

Filing 13

OPINION AND ORDER: DENYING 1 PETITION for Writ of Habeas Corpus, filed by Bronco Morgan. The clerk is DIRECTED to close this case. Signed by Magistrate Judge Michael G Gotsch, Sr on 6/12/2017. (Copy mailed to pro se party)(lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
BRONCO MORGAN,
Petitioner,
v.
SUPERINTENDENT,
Respondent.

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CAUSE NO. 3:16-CV-280-MGG

OPINION AND ORDER
This case is before the court by consent of the parties. ECF 11. Bronco Morgan, a pro se
prisoner, filed a habeas corpus petition challenging the prison disciplinary hearing (ISP 16-02-99)
where a Disciplinary Hearing Officer (DHO) found him guilty of possession of a cell phone in
violation of Indiana Department of Correction (IDOC) policy A-121. ECF 1 at 1. As a result,
Morgan was sanctioned with the loss of 60 days earned credit time and was demoted from Credit
Class 1 to Credit Class 2. Id.
Morgan’s petition identifies only one ground, generally alleging “due process” violations.
ECF 1 at 2. Within Ground One, Morgan identifies four discrete issues that he believes entitles him
to relief. Id. First, Morgan argues that there was insufficient evidence on which to find him guilty.
Id. Second, he claims that the Conduct Report does not identify the “disposition” of the evidence
or any witnesses. Id. Third, he claims that he did not receive a copy of the evidence card. Id. Finally,
he claims that he was denied access to evidence that he requested. Id.
Respondent contends that Morgan is procedurally defaulted on the latter three claims because
he failed to raise these issues during his administrative appeals. ECF 9 at 10. In habeas corpus
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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
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). In his administrative appeals, Morgan only
raised the issue of the sufficiency of the evidence. ECF 9-7 at 1. Thus, Morgan is procedurally
defaulted with respect to all other claims.
Morgan argues that he is entitled to habeas corpus relief because there was insufficient
evidence to find him guilty. In the disciplinary context, “the 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 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 findings of a prison disciplinary board [need only] have the support of some
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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.
An inmate violates IDOC A-121 by his “[u]nauthorized use or possession of any cellular
telephone or other wireless or cellular communications device.” IDOC Adult Disciplinary Process.
http://www.in.gov/idoc/files/02-04-101_APPENDIX_I-OFFENSES_6-1-2015(1).pdf. The Conduct
Report charges Morgan as follows,
At approximately 2:25 am I, Ofc J. Piggott was unlocking doors on the west 400
range. When I got to offender Morgan’s cell (west 427) (doc # 209989) I picked up
on the lock box to try and unlock cell 427 west and as I, Ofc J. Piggott, picked up on
the lock box a cellular device fell from underneath the box.
ECF 9-1 at 1. During the subsequent disciplinary hearing, the DHO was presented with the Conduct
Report, a photograph of the confiscated phone, and statements from Morgan. Based on the evidence,
the DHO reported that she “[b]elieve[s] CR to be true + factual. Photo supports charge. Policy states
inmates responsible for all parts of cell. Has been in cell since Sept. 2015.” ECF 9-6 at 1. In her
declaration attached to Respondent’s return, the DHO stated that she has worked at the Indiana State
Prison for over 26 years. ECF 9-9 at 1. Based her experience in the prison, she explains that the
“lock mechanism cannot literally be ‘picked up’ by staff. But due to the age of the facility and the
locking mechanisms, staff members occasionally need to push, pull, and/or simultaneously work the

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key, the door, and the locking mechanism so the locking bolt will click to secure or unsecure the cell
door.” Id. The DHO’s declaration states, “when the cell is secured, no one but the occupant is
capable of tampering with the locking mechanism. And if an item such as a cell phone is placed
under the locking mechanism when the cell is unsecured, then the door would not be able to be
locked.” Id. Based on her knowledge of the locking mechanism, and her 26 years experience at the
prison, the DHO concluded that “the cell phone at issue in this case was somewhere behind the
locking mechanism and that it fell to the floor when the officer was attempting to unlock the door
to Morgan’s cell. Accordingly, [she] concluded that Morgan, as the occupant of the cell, had
possessed the cell phone.” Id.
The DHO had sufficient evidence to find Morgan guilty of possession of the cell phone. The
phone was discovered in an area of a cell that, once locked, could only be accessed by the inmate
in the cell. Furthermore, the DHO knew from experience that the door could not have been secured
if the phone was hidden behind the locking mechanism. Based on the evidence, it was not
unreasonable or arbitrary for the DHO to determine that Morgan hid the cell phone. The DHO noted
that Morgan had been housed in his cell for five months at the time of the infraction, and thus was
presumably familiar with the structure of the cell. Moreover, during his hearing, Morgan admitted
to the DHO that he had been caught with possession of two cell phones in the past. ECF 1 at 6.
Morgan argues that he should not have been found guilty because the phone, found outside
of his cell door, was in a common area. ECF 12 at 5-6. Yet, the DHO was permitted to rely on both
circumstantial evidence, and the theory of constructive possession, to find Morgan guilty. Hamilton
v. O’Leary, 976 F.2d 341, 345 (7th Cir. 1992) (finding offender guilty based on offender’s
constructive possession of contraband); Brenneman v. Knight, 297 F. App’x 534, 536 (7th Cir. 2008)
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(finding prisoner guilty based on circumstantial evidence). Because the DHO’s finding was
supported by “some evidence,” Morgan is not entitled to habeas corpus relief.
For the reasons set forth above, the petition (ECF 1) is DENIED. The clerk is
DIRECTED to close this case.
SO ORDERED.
ENTERED: June 12, 2017.

S/Michael G. Gotsch, Sr.
Michael G. Gotsch, Sr.
United States Magistrate Judge

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