Cunningham v. Superintendent

Filing 2

OPINION AND ORDER: The 1 Petition for Writ of Habeas Corpus is DENIED WITHOUT PREJUDICE because it is unexhausted. Signed by Judge William C Lee on 7/13/2016. (cc: Petitioner) (lns)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
TRAVIS CUNNINGHAM,

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Petitioner,
v.
SUPERINTENDENT,
Respondent.

CAUSE NO. 3:16-CV-394 WL

OPINION AND ORDER
Travis Cunningham, a pro se prisoner, filed a habeas corpus petition (DE 1) attempting to
challenge the prison disciplinary hearing (WCC 16-05-508) where a Westville Correctional
Facility Disciplinary Hearing Officer (DHO) found him guilty of Possessing an Unknown
Substance in violation of B-202 on June 2, 2016. As a result, he lost 60 days earned credit time
and was demoted to Credit Class 2. In his petition, Cunningham states that he did not appeal to the
Final Reviewing Authority. DE 1 at 1.
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).
Because Cunningham has not exhausted his claims by presenting them to the Final
Reviewing Authority, the habeas corpus petition is DENIED WITHOUT PREJUDICE because
it is unexhausted.
SO ORDERED.
ENTERED: July 13, 2016
s/William C. Lee
William C. Lee, Judge
United States District Court

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