Hardman v. Superintendent
OPINION AND ORDER DENYING re 1 the amended Petition for Writ of Habeas Corpus and the Petitioner is DENIED leave to proceed in forma pauperis on appeal. ***Civil Case Terminated***. Signed by Judge Philip P Simon on 11/06/2017. (Copy mailed to pro se party)(sct)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JERRY D. HARDMAN,
CAUSE NO. 3:17-CV-474-PPS-MGG
OPINION AND ORDER
Jerry Hardman, a prisoner without a lawyer, filed a habeas corpus petition
challenging the prison disciplinary hearing where a Disciplinary Hearing Officer found
him guilty of attempted trafficking in violation of Indiana Department of Correction
policy A-111 and A-113. ECF 1 at 1. As a result, he was sanctioned with the loss of 60
days earned credit time and was demoted from Credit Class 1 to Credit Class 2.
In Ground One, Hardman argues that he is entitled to habeas corpus relief
because he was improperly denied an opportunity to personally review documents
contained in the Internal Affairs file regarding this incident. While Hardman concedes
that the hearing officer reviewed this evidence, he argues that he should have been
permitted to personally review the evidence as well. Specifically, he argues that the
hearing officer relied on statements from two witnesses that he was not permitted to
review. However, it is well-established that “prison disciplinary boards are entitled to
receive, and act on, information that is withheld from the prisoner and the public . . . .”
White v. Ind. Parole Bd., 266 F.3d 759, 767 (7th Cir. 2001). Hardman had a right to have
the evidence reviewed by the hearing officer, but he did not have the right to personally
review all of the evidence himself where the disclosure of the sensitive information in
the file posed an obvious risk to the security of the facility. Thus, Ground One does not
identify a basis for granting habeas corpus relief.
In Ground Two, Hardman argues that he requested a continuance so that the
hearing officer could review additional evidence. He claims that there were phone calls
and “law enforcement incident reports” that the hearing officer did not review.
However, the confidential case file contained a transcript of the phone calls, and
contained copies of the police reports. Because the hearing officer reviewed the
confidential investigation file (see ECF 8-5), and there was no need for a continuance.
Ground Two does not identify a basis for granting habeas corpus relief.
In Ground Three, Hardman argues that he is entitled to habeas corpus relief
because his request for counsel was denied. Respondent contends that Hardman is
procedurally defaulted on this claim because he failed to raise it during his
administrative appeal. However, I may consider the merits of Hardman’s claim,
notwithstanding his alleged failure to exhaust. See 28 U.S.C. § 2254(b)(2) (“An
application for a writ of habeas corpus may be denied on the merits, notwithstanding
the failure of the applicant to exhaust the remedies available in the courts of the State.”).
I do so here.
Hardman argues that he was denied the assistance of counsel. Hardman argues
that, due to the severity of the charges, and the fact that this incident gave rise to
criminal charges, he should have been provided with counsel. Yet, for purposes of his
petition, Hardman is limited to challenging sanctions imposed as a result of his prison
disciplinary hearing, not any related criminal proceeding. In the context of prison
disciplinary hearings, prisoners do not have a due process right to counsel. See Wolff v.
McDonnell, 418 U.S. 539, 570 (1974). Thus, Ground Three does not identify a basis for
granting habeas corpus relief.
If Hardman 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.
For these reasons, the amended habeas corpus petition (ECF 1) is DENIED. The
clerk is DIRECTED to enter judgment and close this case. Jerry Hardman is DENIED
leave to proceed in forma pauperis on appeal.
ENTERED: November 6, 2017.
_/s Philip P. Simon__________
United States District Court
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