Merritt v. Superintendent

Filing 16

OPINION AND ORDER DENYING [DE 1] Habeas Corpus Petition, The Clerk is directed to close this case; ***Civil Case Terminated. Signed by Judge Philip P Simon on 8/7/17. (Copy mailed to pro se party)(mlc)

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

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CAUSE NO. 3:17-CV-33-PPS-JEM

OPINION AND ORDER
Omar Merritt, a pro se prisoner, filed a habeas corpus petition challenging the prison
disciplinary hearing where a Disciplinary Hearing Officer found him guilty of creating
counterfeit documents in violation of Indiana Department of Correction policy. ECF 1 at
1. As a result, he was sanctioned with the loss of 90 days earned credit time and was
demoted from Credit Class 1 to Credit Class 2. Id.
Merritt argues that the hearing officer 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 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 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).
It’s a violation for an inmate to engage in “[c]ounterfeiting, forging, or unauthorized
reproduction or possession of any document, article, identification, money, passes, security
or

official

paper.”

Adult

Disciplinary

Process,

Appendix

I:

Offenses.

http://www.in.gov/idoc/files/02-04-101_APPENDIX_I-OFFENSES_6-1-2015(1).pdf.
The Conduct Report charged Merritt as follows:
On 09/01/2016, I, Casework Manager K. Miller was given back three
request slips in the RHU mailbox in the mailroom. The remittance slips
were sent through night mail and had my signature on the remittance
slips. This offender did not hand these remittance slips directly to me,
which would not allow the remittance slips to get signed by me. After
comparing another remittance slip that has been signed by me, it was
noted that Offender Merritt- 194553- R506 signed my signature in blue
ink. The blue ink from the pen was found under Offender Merritt’s Bunk
in RHU 506. Both the ink and the blue pen were confiscated, along with
the remittance slips that were pre-signed.
ECF 9-1 at 1.
The officer who searched Merritt’s cell, Officer Isaac, also submitted a statement:

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On September 1st 2016 at approximately 0935 I, C/O J. Isaac, was working
in RHU. While escorting offenders to outside recreation I removed
offender Merritt, Omar DOC 194553 from cell R-505, to the outside rec
cage. I then began to conduct routine cell searches. Upon entering
offender Merritts cell I noticed that there was a blue pen body on the table.
I then located the blue ink cartridge taped to the underside of his bunk.
ECF 9-1 at 3. The hearing officer was also provided with copies of the forged and
authentic remittance slips for comparison. ECF 9-1 at 4.
The hearing officer had sufficient evidence to find Merritt guilty of creating a
counterfeit. He was provided with evidence by the employee whose signature was
forged that the signature did not belong to her, and that Merritt had never provided her
with the remittance slips for her signature. A comparison between the two signatures
supports a finding that one of the signatures was forged. See ECF 9-1 at 4. The forged
signature was signed in blue ink. A blue ink pen cartridge was discovered concealed in
Merritt’s cell. Moreover, Merritt does not contest that he wrote and signed the
remittance slips. Thus, there is “some evidence” to support the finding of guilt.
Merritt also challenges the credibility of the evidence. Merritt claims that Officer
Isaac could not have found the pen under his bed because his bed is “just one big block
of stone” and nothing can be placed under the bed. ECF 1 at 4. He also challenges the
fact that Officer Isaac’s witness statement claimed that he discovered the blue ink pen in
cell 505, and claims that he was held in cell 506. ECF 1 at 3. It was the responsibility of
the hearing officer to weigh the evidence and, in light of the evidence against Merritt, it
was not unreasonable or arbitrary for the hearing officer to resolve discrepancies in
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favor of Officer Isaac. Moreover, Officer Isaac’s misidentification of the cell number
appears to be nothing more than a scrivener’s error. While Officer Isaac may have
misidentified the cell number, he did explicitly identify the cell as Merritt’s cell.
Furthermore, the Conduct Report identified the correct cell number. Thus, Merritt’s
arguments regarding the weight of the evidence do not serve as a basis for habeas
corpus relief.
Next, Merritt claims that his due process rights were violated because the
hearing officer declined his request at the hearing to examine the pen. 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). Here, the pen
confiscated from Merritt’s cell was not exculpatory. Merritt has not identified why he
wished to examine the pen, or how his examination of the pen would have altered the
outcome of his case. Furthermore, even if the pen was exculpatory evidence, Merritt’s
request, made the day of his hearing, was untimely. Cf. 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.
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”).
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Merritt also challenges the manner in which the evidence was stored and argues
that there was an improper chain of custody. ECF 1 at 2. “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 blue ink pen. Therefore, the lack of a chain of custody report for the
pen does not serve as a basis for habeas corpus relief.
Merritt also claims that the manner in which the pen was stored violated IDOC
policy. However, “[i]n conducting habeas review, a federal court is limited to deciding
whether a conviction violated the Constitution, laws, or treaties of the United States.”
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). The IDOC’s failure to follow its own policy
does not rise to the level of a constitutional violation. See id. at 68 (“state-law violations
provide no basis for federal habeas relief”).
Merritt’s final claim is that his discipline in this case caused him severe mental
and emotional stress. ECF 1 at 3. This is not a proper claim pursuant to 28 U.S.C. § 2254.
For purposes of his habeas corpus petition, I only consider whether Merritt was
afforded the due process rights he was entitled pursuant to Wolff, 418 U.S. at 539. Here,
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Merritt has not established that any of his procedural due process rights were violated.
Thus, he 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: August 7, 2017.

s/ Philip P. Simon
PHILIP P. SIMON, JUDGE
UNITED STATES DISTRICT COURT

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