Phelps v. Superintendent
Filing
14
OPINION AND ORDER The court DENIES Cody Phelps's petition for writ of habeas corpus. The clerk is DIRECTED to close this case. Signed by Judge Robert L Miller, Jr on 11/27/2018. (Copy mailed to pro se party)(sct)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
CODY PHELPS,
Petitioner,
v.
WARDEN,
)
)
)
)
)
)
)
CAUSE NO. 3:17-CV-454-RLM-MGG
Respondent.
OPINION AND ORDER
Cody Phelps, a prisoner without a lawyer, filed a habeas corpus petition
challenging a disciplinary hearing (ISP 17-03-383) in which a disciplinary
hearing officer found him guilty of unauthorized possession of personal
information in violation of Indiana Department of Correction Policy B-247. He
was sanctioned with the loss of 90 days earned credit time and a one-step
demotion in credit class. The Warden has filed the administrative record. Mr.
Phelps hasn=t filed a traverse and the time to do so has passed, so this case is
fully briefed.
The Fourteenth Amendment guarantees prisoners certain procedural due
process rights in prison disciplinary hearings: (1) advance written notice of the
charges; (2) an opportunity to be heard before an impartial decision-maker; (3)
an opportunity to call witnesses and present documentary evidence in defense,
when consistent with institutional safety and correctional goals; and (4) a written
statement by the fact-finder of evidence relied on and the reasons for the
disciplinary action. Wolff v. McDonnell, 418 U.S. 539 (1974). To satisfy due
process, there must also be Asome evidence@ in the record to support the guilty
finding. Superintendent, Mass Corr Inst. v. Hill, 472 U.S. 445, 455 (1985). Mr.
Phelps asserts there are three grounds which entitle him to habeas corpus relief.
In one ground of his petition, Mr. Phelps argues the hearing officer didn=t
have sufficient evidence to find him guilty of violating offense B-247. Mr. Phelps
claims the hearing officer found him guilty on an Aassumption@ because the
conduct report states the confiscated pages of personal information contain
Apossible@ credit card information. In the context of a prison disciplinary hearing,
Athe relevant question is whether there is any evidence in the record that could
support the conclusion reached by the disciplinary board.@ Supt. v. Hill, 472 U.S.
at 455-456. AIn 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).
Mr. Phelps was found guilty of violating IDOC offense B-247, which
prohibits inmates from A[p]ossessing or soliciting unauthorized personal
information regarding another offender, ex-offender, victim/witness, potential
victim, or current or former staff person, including but not limited to personnel
files, offenders packets, medical or mental health records, photographs, Social
Security Numbers, home addresses, financial information, or telephone
numbers, except as authorized by a court order or as approved in writing by the
Facility Head. This includes soliciting for correspondence (pen-pals) through
forums on any website or periodical.@ Indiana Department of Correction, Adult
Disciplinary Process: Appendix I. http://www.in.gov/idoc/
files/02-04-101_APPENDIX_I-OFFENSES_6-1-2015(1).pdf.
The Conduct Report charged Mr. Phelps as follows:
Offender found with several pages of personal information to include
possible credit card information. Offender requested for interview
on same date but declined unless he could bring a witness with him.
Information obtained is in violation of code 247B of adult disciplinary code.
Documents are available for review in case file 17ISP0067.
ECF 9-1 at 1.
In assessing the evidence, the hearing officer determined there was
sufficient evidence in the record to find Mr. Phelps guilty of unauthorized
possession of personal information in violation of offense B-247. A conduct
report alone can be enough to support a finding of guilt. McPherson v. McBride,
188 F.3d at 786. Such is the case here. In the conduct report, Officer Whelan,
the reporting officer, detailed his discovery of documents containing credit card
and personal information in Mr. Phelps=s cell. ECF 9-1 at 1, 11 at 1-8. The
confidential packet of documents filed in this case (ECF 11 at 1-8), which are the
documents confiscated from Mr. Phelps=s cell and contained in confidential case
file 17-ISP-0067, corroborate the conduct report. Given the conduct report
coupled with the confidential packet of documents, there was more than Asome
evidence@ for the hearing officer to find Mr. Phelps=s guilty of offense B-247. The
DHO=s finding that Mr. Phelps was guilty was neither arbitrary nor unreasonable
in light of these facts.
Mr. Phelps argues his due process rights were violated because he was
denied evidence in this case and couldn=t prepare his defense. He claims that,
because he wasn=t present during the Ashakedown@ of his cell, he didn=t know
what happened or what evidence was allegedly confiscated. Mr. Phelps is
incorrect on this point.
On March 30, 2017, he was notified of the charge
against him and, at that time, he asked for the Ainvestigation packetCproof of
credit card numbers.@ ECF 9-2 at 1. Review of the record shows Mr. Phelps
knew that the charge against him involved the unauthorized possession of credit
card and personal information and that documents had been confiscated from
his cell. His assertion lacks merit.
Next, Mr. Phelps contends that he couldn=t defend against the charge
because his requests to review the confidential case file and cross-examine
witnesses were improperly denied. He claims he wasn=t given a Achance@ to review
the evidence and prison officials simply Ahid any way for [him] to argue the
alleged charges.@ While Mr. Phelps had a right to request evidence in his defense,
see Wolff v. McDonnell, 418 U.S. at 566, he didn=t necessarily have a right to
personally review the evidence. See White v. Ind. Parole Bd., 266 F.3d 759, 767
(7th Cir. 2001) (Aprison disciplinary boards are entitled to receive, and act on,
information that is withheld from the prisoner and the public . . . A). Mr. Phelps
didn=t have a right to review the confidential case file or the confidential packet
of documents filed in this case because that information contains sensitive
materials that, if viewed, might jeopardize institutional safety and reveal
investigation techniques. See Wolff v. McDonnell, 418 U.S. at 566; Jones v.
Cross, 637 F.3d 841, 847 (7th Cir. 2011).
Furthermore, Mr. Phelps had no right to review the confidential case file
or the confidential packet of documents because they don=t contain exculpatory
evidence. Rasheed-Bey v. Duckworth, 969 F.2d 357, 361 (7th Cir. 1992) (due
process only requires production of Aexculpatory@ evidence). Exculpatory in this
context means evidence which Adirectly 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). Mr. Phelps has a right to present relevant, exculpatory
evidence in his defense, but the confidential packet of documents is made up of
incriminating evidence, which supports the conduct report. The court has
reviewed the confidential packet of documents and notes they don=t contain any
exculpatory evidence. To the extent Mr. Phelps claims he was denied the right to
cross-examine witnesses, he never requested any witnesses at his screening.
Because the hearing officer who presided over Phelps=s hearing, considered all of
the relevant evidence, including staff reports, the confidential case file, and the
confidential packet of documents filed with this court, there was no violation of
Phelps=s due process rights. This ground doesn=t identify a basis for granting
habeas corpus relief.
If the hearing officer erred in denying Mr. Phelps=s request to review the
confidential materials in this case, that error was harmless. When a prisoner is
denied the opportunity to present 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. Phelps doesn=t allege any
prejudice from not reviewing the confidential materials in this case other than
the general claim that it hindered his defense preparation. He points to no
specific example of how his defense was actually harmed or that there was a
substantial or injurious effect on the outcome of the proceeding. Mr. Phelps
hasn=t established he was prejudiced in any way by the hearing officer=s denial
of his request to review the confidential materials in this case.
In the last ground of his petition, Mr. Phelps asserts his due process rights
were violated because he was placed in restrictive housing and his property was
taken, all in retaliation for his refusal to cooperate with the internal affairs
investigation. Unlike his other grounds, this ground doesn=t question whether
Mr. Phelps was afforded due process as it relates to his disciplinary hearing.
Because this claim appears to allege a failure to provide safe conditions of
confinement, it can=t be remedied in a habeas corpus petition pursuant to
Section 2254. Montgomery v. Anderson, 262 F.3d 641, 643 (7th Cir. 2001). If
Mr. Phelps wants to challenge his conditions of confinement, he must assert
those claims under 42 U.S.C. ' 1983, rather than in a habeas corpus proceeding
under 28 U.S.C. ' 2254. Id. This ground does not identify a basis for habeas
corpus relief.
If Mr. Phelps wants to appeal this order, 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).
But he can=t
proceed in forma pauperis on appeal because pursuant to 28 U.S.C. ' 1915(a)(3)
an appeal in this case could not be taken in good faith.
For these reasons, the court DENIES Cody Phelps=s petition for writ of
habeas corpus. The clerk is DIRECTED to close this case.
SO ORDERED on November 27, 2018.
/s/ Robert L. Miller, Jr.
JUDGE
UNITED STATES DISTRICT COURT
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