Davis v. Superintendent

Filing 23

OPINION AND ORDER DENYING 14 Amended Petition for Writ of Habeas Corpus and directing the clerk to close this case. ***Civil Case Terminated. Signed by Judge Robert L Miller, Jr on 8/7/17. (Copy mailed to pro se party)(ksc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
SAMUEL DAVIS, Jr.,
Petitioner,
v.
SUPERINTENDENT,
Respondent.

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CAUSE NO. 3:16-cv-643-RLM-MGG

OPINION AND ORDER
Samuel Davis, Jr., a pro se prisoner, filed an amended habeas corpus
petition challenging the prison disciplinary hearing where a Disciplinary Hearing
Officer found him guilty of attempting to traffic in violation of Indiana Department
of Correction policy A-111 and A-113. As a result, Mr. Davis was sanctioned with
the loss of 180 days earned credit time and was demoted from Credit Class 2 to
Credit Class 3. ECF 18-8.
As a preliminary matter, the respondent argues that Mr. Davis’s claims can’t
be considered because they are time-barred. The respondent contends that habeas
corpus actions have a one-year limitations period pursuant to 28 U.S.C. § 2254,
and that Mr. Davis didn’t pursue his claim within this period. The respondent also
concedes that the Seventh Circuit has already determined that the one-year
limitations period applies to conviction, not disciplinary, habeas cases. See Cox
v. McBride, 279 F.3d 492 (7th Cir. 2002). The respondent insists that our court
of appeals’ interpretation conflicts with that of other circuits, and should be

changed. As the respondent acknowledges, this court is bound by the precedent
of this circuit, and no other. The respondent may present this argument on
appeal, but it won’t be considered further here.
Much of Mr. Davis’s petition is premised on his argument that the
Department of Correction violated its own internal policies in imposing his
discipline. The Department of Correction’s failure to follow its own policy doesn’t
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”). Still, the
court will analyze Mr. Davis’ claims to determine whether he has identified any
violations of his federal rights. See id. at 67-68 (“In conducting habeas review, a
federal court is limited to deciding whether a conviction violated the Constitution,
laws, or treaties of the United States”).
In Ground One, Mr. Davis challenges the sufficiency of the evidence that the
hearing officer used 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, 455-456 (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.”

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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 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).
An inmate violates IDOC A-111 by “[a]ttempting or conspiring or aiding and
abetting with another to commit any Class A offense.” An inmate violates IDOC A113 by “[e]ngaging in trafficking (as defined in IC 35-44-3-9) with anyone who is
not an offender residing in the same facility.” At the time of incident, IC 35-44-3-9
had already been repealed and replaced by Ind. Code 35-44.1-3-5. See Pub. L.
126-2012, Sec. 53, eff. July 1, 2012. The operative statute states,
(b) Except as provided in subsection (d), a person who, without the
prior authorization of the person in charge of a penal facility or
juvenile facility knowingly or intentionally:
(1) delivers, or carries into the penal facility or juvenile facility
with intent to deliver, an article to an inmate or child of the facility;
(2) carries, or receives with intent to carry out of the penal
facility or juvenile facility, an article from an inmate or child of the
facility; or
(3) delivers, or carries to a worksite with the intent to deliver,
alcoholic beverages to an inmate or child of a jail work crew or
community work crew;
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commits trafficking with an inmate, a Class A misdemeanor.
However, the offense is a Class C felony under subdivision (1) or (2)
if the article is a controlled substance, a deadly weapon, or a cellular
telephone or other wireless or cellular communications device.
Ind. Code § 35-44.1-3-5 (eff. Mar. 27, 2013 to June 30, 2014). The Department
of Correction defined “attempt” as:
Planning to do something that would be a violation of these
administrative procedures or any Department or facility rule,
procedure or directive if the act had actually been committed or
when an offender commits acts which showed a plan to violate these
administrative procedures or a Department or facility rule, procedure
or directive when the acts occurred.
The Conduct Report charged Mr. Davis as follows:
On the above date and approximate time, I, Sgt. C. Sipich along with
Ofc. M. Edwards conducted a routine shakedown on cell D3-106.
During this shakedown I found a “note” on offender Davis’ desk. On
the note was a butterfly sticker with my name written underneath it.
This “note” contains offender Davis’ mother’s address and the next
line states, “maybe, man I wish she’d leave me something. I’ll pray
about it.”
Officer Edwards also submitted a witness report that stated:
On the above date & time, I Ofc. M. Edwards and Sgt. Sipich were
conducting a routine shakedown on cell D3-106. During this search
Sgt. Sipich found a note on offender Davis’ desk. On the note was a
sticker of a butterfly and Sgt. Sipich’s name under it. The note was
contained (sic) offender Davis’ mothers address.
While none of the parties explain the significance of the butterfly sticker, it
is evident that everyone involved believed it was significant. During his
disciplinary hearing, Mr. Davis defended his conduct by arguing, “why would I put
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a butterfly on a rough draft I wrote IA.” Mr. Davis requested that the hearing
officer interview a witness to determine where he obtained the sticker. In a letter
trying to reverse his discipline, Mr. Davis argued that the reporting officer, or
another prison employee, planted the sticker on his letter. The sticker’s presence
was also emphasized by the reporting officer in the Conduct Report, by Officer
Edwards in his witness statement, by the DHO in her declaration, and by the the
respondent in the return. It would have been helpful for one of the parties to
explain the significance of the sticker in the prison context, the court doesn’t need
such and explanation to uphold the hearing officer’s finding of guilt. It was for the
hearing officer, and not this court, to weigh the evidence. The presence of the
sticker evidently weighed in favor of Mr. Davis’ guilt. The hearing officer must be
granted wide deference to make these types of determinations, because the prison
officials, and not this court, are in the best position to understand the significance
of objects or phrases that would have no special meaning outside of the prison
context. The hearing officer didn’t act in an unreasonable or arbitrary manner.
Sticker aside, the hearing officer explains that she “found Davis guilty of
attempting to engage in trafficking because the note bore Sergeant Sipich’s name
and included Davis’ mother’s address and telephone number. The note also read,
‘man I wish she’d leave me something.’” Based on this evidence, the hearing officer
concluded, “[t]he note thus indicates that Davis was attempting to convince
Sergeant Sipich to go to Davis’ mother’s house and bring something into the
prison for him. Davis even said he would ‘pray about it,’ hoping that Sergeant
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Sipich would be agreeable.” This is neither an unreasonable or arbitrary
conclusion. The letter was addressed to Sgt. Sipich, hinted that Mr. Davis’ mother
might be holding something for him, and contained the information necessary for
Sgt. Sipich to contact Mr. Davis’ mother. This is “some evidence” that Mr. Davis
was attempting to engage Sgt. Sipich in an operation to traffic contraband into the
prison. Mr. Davis isn’t entitled to habeas corpus relief based on Ground One.
In Ground Two, Mr. Davis claims that he was improperly denied the
opportunity to review Officer Edwards’ witness statement and the note confiscated
from his cell. Inmates have a right to present relevant, exculpatory evidence in
their defense. Miller v. Duckworth, 963 F.2d 1002, 1005 (7th Cir. 1992).
Exculpatory in this context means evidence which “directly undermines the
reliability of the evidence in the record pointing to [the prisoner's] guilt.” Meeks v.
McBride, 81 F.3d 717, 721 (7th Cir. 1996). Mr. Davis’ right to present evidence
was satisfied. During his screening, Mr. Davis had the chance to request
witnesses or evidence in his defense. Mr. Davis asked that the hearing officer
speak with Nurse Jaske, who would tell the hearing officer that she gave him a
piece of paper with a butterfly sticker on it. The hearing officer obtained a
statement from Nurse Jaske, who denied having given Mr. Davis the sticker. Mr.
Davis didn’t request any other evidence at the time of his screening. He later wrote
a supplemental request for evidence, but didn’t ask for Officer Edwards as a
witness or to review the confiscated letter. When Mr. Davis finally requested the
evidence during his disciplinary hearing, his request was untimely. Cf. Miller v.
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Duckworth, 963 F.2d at 1005 fn. 2 (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. 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”). Mr. Davis’ due process right to
present evidence in his defense was satisfied.
To the extent that the hearing officer might erred in denying Mr. Davis’
request to review his letter, the error was harmless. When a prisoner is denied the
opportunity to present relevant evidence, the prisoner must establish that the
denial of the evidence resulted in actual prejudice, rather than harmless error.
Piggie v. Cotton, 342 F.3d 660, 666 (7th Cir. 2003). Mr. Davis wrote the note, so
he was aware of its contents, and the part of the note that served as the basis of
his discipline was quoted in the Conduct Report. Mr. Davis hasn’t established that
he was prejudiced in any way by the hearing officer’s denial of his request to see
the letter; Ground Two doesn’t identify a basis for habeas corpus relief.
Finally, Mr. Davis argues that during his administrative appeal his
sanctions were reduced from a 365 day loss in earned credit time to a 180 day
loss, but that this reduction was not implemented. Mr. Davis’ prison records
demonstrate that this reduction of time was implemented.
For the reasons set forth above, the petition (ECF 14) is DENIED. The clerk
is DIRECTED to close this case.

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SO ORDERED.
ENTERED: August 7, 2017.

/s/ Robert L. Miller, Jr.
Judge
United States District Court

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