Davis v. Superintendent
Filing
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OPINION AND ORDER: The habeas corpus petition ECF 2 is DENIED. The Clerk isdirected to CLOSE this case. The Clerk is DIRECTED to edit the docket changing the respondent to Warden pursuant to Indiana Code 11-8-2-7. Signed by Judge Philip P Simon on 11/16/18. (Copy mailed to pro se party). (nal)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ANTHONY DAVIS,
Petitioner,
v.
CAUSE NO.: 3:17-CV-152-PPS-MGG
WARDEN,
Respondent.
OPINION AND ORDER
Anthony Davis, a prisoner without a lawyer, filed a habeas corpus petition
pursuant to 28 U.S.C. § 2254 challenging the prison disciplinary hearing where a
disciplinary hearing officer found him guilty of Possession of a Cellular Telephone in
violation of Indiana Department of Correction offense code A-121. ECF 2 at 1; ECF 11-3.
As a result of the finding of guilt, Davis was docked 100 days credit time and demoted
from Credit Class 1 to Credit Class 2, which means that going forward he will accrue
good time credits at a slower rate. Id.
Davis argues he was denied due process because he requested video and
photographic evidence, but none was produced at his hearing. The Respondent argues
Davis procedurally defaulted this claim because he failed to pursue it during his
administrative appeals as required by 28 U.S.C. § 2254(b). Here is how that process is
supposed to work in Indiana:
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 (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) (parallel citations omitted). Like Mr.
Moffat, during his administrative appeals, Davis only argued the insufficiency of the
evidence. ECF 11-4. Because he did not administratively raise a claim that he was
denied evidence, this claim is procedurally defaulted.
But let’s suppose he did raise this claim administratively. It would still not be a
basis for habeas corpus relief. Davis argues that he requested video and photographic
evidence. He did not. When he was screened on this charge, he requested, only a
“picture of phone.” ECF 11-2 at 1. Because he did not request any video, it was not a
due process error for the hearing officer to have not reviewed any video for the hearing.
In response to the request for a picture of the phone, the hearing officer contacted
the reporting officer and asked, “Can you clarify what happened to the cell phone or
send pictures?” ECF 11-3 at 3. In the reply, the officer explained, “Offender Davis
rapidly fled from my escort into the offender bathroom (which we were right in front
of). Never losing sight of the offender, I witnessed him throw the cellular phone into the
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toilet (with his right arm) and flush it as I was placing his left arm into the escort
position.” ECF 11-3 at 4. Consequently, there were no photos of the phone.
Inmates have a right to present relevant, exculpatory evidence in their
defense. Wolff v. McDonnell, 418 U.S. 539, 566 (1974). 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, 720 (7th Cir. 1996).
However, a photo of the phone, if one had existed, would not have been exculpatory.
But no photo existed because Davis flushed the phone. It was not a due process error
for the haring officer to have not considered evidence which did not exist.
In his other ground for relief, Davis argues there was not 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). This is a very modest standard. Here’s how the Seventh
Circuit has described it:
[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
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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).
A Conduct Report alone can be sufficient evidence to support a finding of
guilt. McPherson, 188 F.3d at 786. Here, the Conduct Report charged Davis as follows:
On 10/9/2016 at approximately 9:10 p.m. I Sergeant Drubert, Jon was
conducting safety and security rounds on R1-Dorm. During my rounds, I
witnessed Offender Davis, Anthony quickly run in a nearby room and
attempt to hide behind a bed rack. I ordered Offender Davis to stand up
and submit to a pat search in which the offender began standing up. As he
stood up. I witnessed him place a cellular phone in the waist of his pants. I
ordered the offender to remove his hands out of the front of his pants in
which he refused and assaulted me. After wrestling into offender
bathroom, I witnessed him throw the cellular phone into a toilet (with his
right arm) and flush it as I was placing his left arm into the escort position.
His possession of the cell phone triggered his assault on me.
ECF 11-1. This report alone is sufficient to have found Davis guilty because it was
written by the officer who saw Davis with a cell phone.
In his traverse, Davis attempts to raise two new claims. However, these claims
were not included in his habeas corpus petition as required by Section 2254 Habeas
Corpus Rule 2(c)(1) and have therefore not been properly raised. They cannot be a basis
for habeas corpus relief because “[h]abeas corpus petitions must meet heightened
pleading requirements and comply with this Court’s doctrines of procedural default
and waiver.” Minniefield v. Lemmon, 333 F. App’x 131, 132 (7th Cir. 2009) quoting
McFarland v. Scott, 512 U.S. 849, 856 (1994). Nevertheless, even if the arguments had
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been properly raised in his petition, they would both be procedurally defaulted because
they were not raised during his administrative appeals. See Moffat, 288 F.3d at 981-82.
For these reasons, the habeas corpus petition (ECF 2) is DENIED. The Clerk is
directed to CLOSE this case. The Clerk is DIRECTED to edit the docket changing the
respondent to Warden pursuant to Indiana Code 11-8-2-7.
SO ORDERED.
ENTERED: November 16, 2018
/s/ Philip P. Simon
PHILIP P. SIMON, JUDGE
UNITED STATES DISTRICT COURT
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