Guenther v. Superintendent

Filing 18

OPINION AND ORDER DENYING the habeas corpus petition. The clerk is DIRECTED to enter judgment and close this case. Nicholas Guenther is DENIED leave to proceed in forma pauperis on appeal. ***Civil Case Terminated. Signed by Senior Judge James T Moody on 10/4/17. (Copy mailed to pro se party)(mlc)

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

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No. 3:16 CV 468

OPINION AND ORDER
Nicholas Guenther, a prisoner without a lawyer, filed a habeas corpus petition
challenging the prison disciplinary hearing (MCF 15-08-141) at the Miami Correctional
Facility where a Disciplinary Hearing Officer (DHO) found him guilty of possession of a
controlled substance in violation of Indiana Department of Correction (IDOC) policy B202 on August 26, 2015. (DE # 1 at 1.) As a result, he was sanctioned with the loss of 60
days earned credit time. Guenther identifies four grounds in his petition which he claims
entitles him to relief.
In Ground One, Guenther argues that he was denied access to evidence that he
requested. Specifically, he claims that on the day of his hearing, his lay advocate advised
him to ask for a confiscation report and a chain of custody report. When he made this
request directly before his hearing, the DHO denied the request as untimely. The DHO
did not err in denying his untimely request for evidence. See Miller v. Duckworth, 963 F.2d
1002, 1005 fn. 2 (7th Cir. 1992) (prisoners “certainly cannot wait until the day of the
hearing” to make a witness request); Portee v. Vannatta, 105 F. App’x 855, 857 (7th Cir.
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2004) (“Although inmates have a constitutional right to call witnesses at disciplinary
hearings…this right is limited and requests that inmates make the day of the hearing are
not timely”). Moreover, he did not have a right to a chain of custody report or a
confiscation report. “Prison 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 v. McDonnell, 418 U.S. 539, 556 (1974). 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
that a mistake was made with respect to the evidence. Therefore, the absence of a chain
of custody or confiscation report does not serve as a basis for habeas corpus relief.
In Grounds Two and Three, Guenther argues that the DHO did not have sufficient
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
to 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).

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[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, 224 F.3d at 652 (quotation marks, citations, parenthesis, and ellipsis omitted).
Guenther was charged and found guilty of violating IDOC B-202. This policy
prohibits the “[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_6-1-2015(1).pdf.
Indiana State law prohibits possession of any synthetic drug. Ind. Code § 35-48-4-11.5.
The Conduct Report charged Guenther as follows:
While reviewing DVR footage from 8-11-2015 in the GARMENT shop Phase
1 PEN. I foreman Parks witnesses Ofd. Guenther, Nicholas #150873
removing himself from the waiting line of offenders being stripped out.
Upon further viewing Ofd. Guenther appears to be at his work station
messing with the chairs. Ofd. Guenther appears to be attaching or paying
very close attention to the front lip of one chair in particular. Before leaving
the area Ofd. Guenther switches the chair at his work station with the one
he was messing with.
With video evidence I searched Ofd. Guenther’s work station. Upon
inspecting the underneath side of the chair a small amount of a green leafy
substance wrapped in plastic was discovered. There were no other
offenders in that exact area from the time Ofd. Guenther was there and the
search time.
(DE # 12-1.) The substance subsequently tested positive for synthetic marijuana. (DE #
12-3.)
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The DHO had sufficient evidence to find Guenther guilty. Here, the DHO was
confronted with two conflicting version of events. It was the exclusive province of the
DHO, not this court, to weigh the evidence and resolve the factual dispute. Guenther
claimed that he went back to his desk to retrieve paperwork. The Conduct Report
presents evidence that Guenther went back to his desk to plant contraband. The
substance discovered at his work station subsequently tested positive for synthetic
marijuana. In light of the evidence, it was not unreasonable or arbitrary for the DHO to
find Guenther guilty. Thus, Grounds Two and Three do not provide a basis for granting
habeas corpus relief.
In Ground Four, Guenther argues that he is entitled to habeas corpus relief because
he received notice of the postponement of his disciplinary hearing after his delayed
hearing had taken place and the sanctions had been imposed. Guenther’s belated notice
of the postponement of his disciplinary hearing did not affect any of his procedural due
process rights. See generally Wolff, 418 U.S. at 556. Guenther was entitled to advance notice
of the factual allegations against him, and this right was satisfied when he received the
screening report eight days prior to his hearing. (See DE # 12-7.) To the extent that
Guenther alleges that the belated notice of postponement violated IDOC policy, IDOC
policy is not relevant. The IDOC’s failure to follow its own policy does not rise to the level
of a constitutional violation. Estelle v. McGuire, 502 U.S. 62, 68 (1991) (“state-law violations
provide no basis for federal habeas relief”); Keller v. Donahue, 271 F. App’x 531, 532 (7th
Cir. 2008) (finding that inmate’s claim that prison failed to follow internal policies had

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“no bearing on his right to due process”). Thus, Ground Four is not a basis for habeas
corpus relief.
If Guenther wants to appeal this decision, 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 the court finds pursuant to 28 U.S.C. § 1915(a)(3) that an
appeal in this case could not be taken in good faith.
For these reasons, the habeas corpus petition (DE # 1) is DENIED. The clerk is
DIRECTED to enter judgment and close this case. Nicholas Guenther is DENIED leave
to proceed in forma pauperis on appeal.
SO ORDERED.
Date: October 4, 2017
s/ James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT

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