Konrath v. Superintendent

Filing 6

OPINION AND ORDER DENYING 1 PETITION for Writ of Habeas Corpus filed by Petitioner Gregory Konrath. Clerk DIRECTED to enter judgment and close this case. Petitioner is DENIED leave to proceed in forma pauperis on appeal. Signed by Senior Judge James T Moody on 2/2/17. (cc: Gregory Konrath). (cer)

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

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No. 3:17 CV 78

OPINION AND ORDER
Gregory Konrath, a pro se prisoner, filed a habeas corpus petition challenging the
prison disciplinary hearing (WCU 17-01-172) at the Westville Correctional Facility where
a disciplinary hearing officer (DHO) found him guilty of bribing. He lost 60 days Earned
Credit Time and was demoted from Credit Class B to Credit Class C. He raises three
claims in his petition.
In Ground One, he argues that he was not given 24 hours written notice with the
time, date, and place of the hearing as required by State law. However, violations of State
law are not a basis for habeas corpus relief. Estelle v. McGuire, 502 U.S. 62, 68 (1991) (“In
conducting habeas review, a federal court is limited to deciding whether a conviction
violated the Constitution, laws, or treaties of the United States.”). Konrath also argues
that this violated his due process rights. Though Wolff v. McDonnell, 418 U.S. 539 (1974),
requires that an inmate be given 24 hour advance written notice of the factual basis of the
charges against him, there is no federal constitutional due process right to be told the

time, date, or place of the hearing 24 hours in advance. Therefore Ground One is not a
basis for habeas corpus relief.
In Ground Two, he argues that he was denied the right to call witnesses and
present evidence. However that is not true. When he was notified of the charge in this
case, he was asked if there were any witnesses or evidence he wanted to present. (DE #
1-1 at 2.) He indicated that “I do not wish to call any witnesses” and “I do not request any
physical evidence.” (Id.) Konrath signed that form acknowledging that he had “been
advised of [his] rights under due process as enumerated above.” (Id.) Though Wolff
requires that an inmate be given the opportunity to call witnesses and present evidence,
an inmate can (and Konrath did) waive that right. Therefore Ground Two is not a basis
for habeas corpus relief.
In Ground Three, he argues that a prison disciplinary hearing can be challenged
even if it does not result in the lengthening of the duration of confinement. As such, he
argues that Konrath v. Superintendent, 3:16-CV-839 (N.D. Ind. filed December 8, 2016), was
wrongly decided. However, these arguments are not relevant to this case. Nothing that
happened in that prior lawsuit is a basis for habeas corpus relief in this case. Therefore
Ground Three is not a basis for habeas corpus relief.
If Konrath 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.
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For these reasons, the habeas corpus petition is DENIED. The clerk is DIRECTED
to enter judgment and close this case. Gregory Konrath is DENIED leave to proceed in
forma pauperis on appeal.
SO ORDERED.
Date: February 2, 2017
s/ James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT

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