McCorker v. Warden

Filing 19

OPINION AND ORDER: Christopher McCorker's 1 petition for writ of habeas corpus is DENIED. The clerk is DIRECTED to close the case. Signed by Chief Judge Jon E DeGuilio on 10/15/2020. (Copy mailed to pro se party)(bas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
CHRISTOPHER MCCORKER,
Petitioner,
v.

CAUSE NO.: 3:17-CV-827-JD-MGG

WARDEN,
Respondent.
OPINION AND ORDER
Christopher McCorker, a prisoner without a lawyer, filed a habeas corpus
petition challenging a disciplinary hearing (ISP 17-08-0115) where a Disciplinary
Hearing Officer (DHO) found him guilty of assault with a deadly weapon in violation
of Indiana Department of Correction (IDOC) offense A-102. ECF 1 at 1. As a result, he
was sanctioned with the loss of 90 days earned credit time and a demotion in credit
class, in addition to a loss of phone and commissary privileges and an order to pay
restitution. ECF 1 at 1; ECF 1-1 at 16.
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, 563-73 (1974). To satisfy due process, there must also be “some evidence” in

the record to support the guilty finding. Superintendent, Mass Corr. Inst. v. Hill, 472 U.S.
445, 455 (1985).
On August 4, 2017, an inmate attacked Offender Coleman with a weapon,
resulting in serious injuries. After reviewing video evidence and identifying McCorker
as the assailant, Sgt. Lott charged McCorker with assaulting Coleman with a deadly
weapon, in violation of offense A-102. The conduct report alleges the following:
On 8-4-17 at approximately 1:45pm, while reviewing the camera I Sgt. Lott
noticed on CE 100 range Offender McCorker, Christopher #113426
assaulting Offender Coleman with a deadly weapon. Due to further
investigation the weapon was recovered and sent to I.A.
ECF 8-1.
McCorker was notified of the charge on August 14, 2017. He pled not guilty. He
did not ask to have any witnesses at his hearing. He did, however, ask for a camera
review and “anything that I.A. has already gotten on me,” including DNA evidence
from the knife. ECF 8-10.
The DHO reviewed the surveillance footage and summarized it as follows:
On [August 4, 2017] and approx. time OF 1:45PM offender McCorker is
seen at the back of 100 East side range in CCH. He is assaulting offender
Coleman with a weapon that is seen in his right hand. He throws the
offender to the ground and continues to assault as [he] is on the ground.
ECF 8-13.
The DHO also emailed Charles Whalen with the Office of Intelligence and
Investigations (OII) 1 and directed him to look at McCorker’s screening report - where
McCorker asked for information from internal affairs - and respond accordingly. ECF 8-

1

Internal Affairs is now known as the Office of Intelligence and Investigations.

2

11. Whalen responded to the DHO’s email by indicating that evidence, including DNA
samples, had been collected and sent to the State Police Lab for processing. Id.
A hearing was held on August 24, 2017. ECF 8-12. McCorker denied his guilt. Id.
The DHO found him guilty on the basis of staff reports, an incident report, photos, and
video evidence. Id. The DHO noted that the conduct report was clear and concise and
that all evidence supported the charge. Id.
On August 31, 2017, McCorker appealed, arguing that he is innocent. ECF 8-15.
His appeal was denied on September 7, 2017. Id. He filed a second level appeal that was
denied on October 2, 2017. ECF 8-16. He received notice that he had completed all levels
of appeal on October 5, 2017. ECF 1-1 at 20.
In each of the three grounds contained in McCorker’s petition (ECF 1), McCorker
asserts that his due process rights to a fair hearing were violated. In substance,
however, his petition asserts four separate grounds: that his conviction was not
supported by sufficient evidence, that the DHO was biased, that he was improperly
denied access to evidence, and that the IDOC violated its own procedures.
Respondent argues that three of McCorker’s four grounds were procedurally
defaulted because he did not raise them in his administrative appeals. In habeas corpus
proceedings, the exhaustion requirement is contained in 28 U.S.C. § 2254(b).
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
3

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, 119 S.Ct. 1728, 144 L.Ed.2d 1 (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). If there is a default, it can be
excused, and the court can consider a claim that was not properly raised, if a petitioner
can demonstrate cause and prejudice. Weddington v. Zatecky, 721 F.3d 456, 465 (7th Cir.
2013).
In his administrative appeals, McCorker argues only that he is innocent. Thus, it
does not appear that McCorker has exhausted his administrative remedies.
Nonetheless, federal courts have the discretion to consider claims for habeas relief
under certain circumstances even if such claims are procedurally barred. 28 U.S.C. §
2254(b)(2). Bell v. Cone, 543 U.S. 447 (2005)(declining to address whether the court of
appeals correctly held that the petitioner had not defaulted on his claim and citing 28
U.S.C. 2254(b)(2) for the proposition that “an application for habeas corpus may be
denied on the merits, notwithstanding a petitioner's failure to exhaust in state court.”)
Here, instead of addressing whether McCorker’s procedural default can be excused, the
court will consider McCorker’s claims on the merits.
McCorker argues that there is insufficient evidence to support the charged
offense. In the context of a prison disciplinary hearing, “the relevant question is
whether there is any evidence in the record that could support the conclusion reached

4

by the disciplinary board.” Hill, 472 U.S. at 455-56. “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).
Here, Sgt. Lott indicated in the conduct report that he reviewed the videotape
and that it showed McCorker attacking Coleman with a weapon. McCorker was
subsequently charged and convicted of violating IDOC A-102, which prohibits
“[c]omitting battery/assault upon another person with a weapon (including the
throwing of body fluids or waste on another person) or inflicting serious bodily injury.”
Adult Disciplinary Process Appendix I: Offenses, at 1 (June 1, 2015), available at
http://www.lb7.uscourts.gov/documents/216-cv-821.pdf (last visited Oct. 14, 2020).
The DHO had sufficient evidence to find McCorker guilty of this offense. The
conduct report, staff reports, incident report, photos, and video evidence contain
sufficient information to find McCorker guilty. It was not arbitrary for the DHO to

5

conclude that McCorker committed an assault with a deadly weapon when Sgt. Lott
identified McCorker as the individual assaulting Coleman on the surveillance video and
the DHO’s own review of the surveillance video confirmed that McCorker was the
individual assaulting Coleman.
McCorker asserts that Sgt. Lott’s conduct report conflicts with his statement to
Captain Wardlow and is therefore unreliable. The two reports, however, are not
contradictory. McCorker suggests that Sgt. Lott said that he was watching the live video
feed at 1:45 when he saw McCorker attack Coleman – a statement that would contradict
Sgt. Lott’s assertion elsewhere that he was passing out ice to offenders when he was
alerted to a problem and went to the 100 East range. While the conduct report could
have been written more clearly, it is reasonable to read Sgt. Lott’s statement to mean
that he was watching the video following the incident, and at 1:45 on the video, he
identified McCorker as the individual attacking Coleman. When so read, the conduct
report is not inconsistent with Sgt. Lott’s statement regarding where he was when he
was alerted that there was an incident, and it supports the DHO’s finding of guilt.
While McCorker denies that he committed the offense, the DHO was not required to
credit his version of events. 2 McPherson, 188 F.3d at 786 (the court is not “required to
conduct an examination of the entire record, independently assess witness credibility,

2 McCorker also argues that six correctional officers have identified another offender as the
assailant. ECF 1 at 2. That is inaccurate. Those officers identified another offender as having a weapon
immediately after the assault. That offender’s possession of a weapon is not inconsistent with the finding
that McCorker attacked Coleman with a weapon. Furthermore, McCorker seems to be inviting the court
to reweight the evidence, which this court cannot do.

6

or weigh the evidence.”). Therefore, the court concludes that the DHO’s finding that
McCorker was guilty was neither arbitrary nor unreasonable in light of these facts.
McCorker also claims that his due process rights were violated because he was
denied an impartial hearing officer. According to McCorker, an email from OII
demonstrates the DHO was improperly influenced. The email says “[l]ook at the
Screening Report where he mentioned IA and please respond accordingly.” ECF 8-11.
But, McCorker asserts that Charles Whelan from OII wrote that sentence, and he is
mistaken. The DHO wrote to Charles Whelan at McCorker’s request, asking Whelan to
review McCorker’s request in the screening order. Charles Whalen responded by
indicating that “[w]e did take DNA from him and victim. Took all to state police lab for
processing[.]” Id. McCorker also suggests that the DHO demonstrated bias by finding
him guilty without any evidence to support that finding. The court has already found
that there was some evidence to support the finding of guilt. In the prison disciplinary
context, adjudicators are “entitled to a presumption of honesty and integrity,” and “the
constitutional standard for improper bias is high.” Piggie v. Cotton, 342 F.3d 660, 666 (7th
Cir. 2003). Due process prohibits a prison official who was personally and substantially
involved in the underlying incident from acting as a decision-maker in the case. Id.
However, due process is not violated simply because the hearing officer knew the
inmate, presided over a prior disciplinary case, or had some limited involvement in the
event underlying the charge. Id. McCorker has not demonstrated that the DHO was
directly or otherwise substantially involved in the factual events underlying the
disciplinary charges or the investigation of the incident. Id. Because he has not rebutted
7

the presumption that the DHO was acting with honesty and integrity, the court finds
that this ground is not a basis for habeas corpus relief.
McCorker argues that he was denied access to evidence, namely, the video, all
information that OII had regarding the incident, and the results of the DNA tests. But,
the DNA test results were not available at the time of the hearing, and prisoners do not
have the right to access evidence that does not already exist. “Prison officials must have
the necessary discretion to keep the hearing within reasonable limits.” Wolff, 418 U.S. at
556; See also Arthur v. Ayers, 43 Fed. Appx. 56, 57 (9th Cir. 2002) (inmates were not
entitled to laboratory testing of substances). Furthermore, McCorker had a right to
request evidence in his defense, see Wolff, 418 U.S. at 566, but he did not necessarily
have a right to personally review that evidence. White v. Ind. Parole Bd., 266 F.3d 759, 767
(7th Cir. 2001) (“prison disciplinary boards are entitled to receive, and act on,
information that is withheld from the prisoner and the public . . . ”). Here, the court has
reviewed the video of the incident and the OII file and finds it appropriately withheld
from McCorker because the information could pose a security threat. Additionally,
neither the video nor the OII file contain any exculpatory evidence. Rasheed-Bey v.
Duckworth, 969 F.2d 357, 361 (7th Cir. 1992) (due process only requires production of
“exculpatory” evidence). 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). Because the DHO reviewed the
video and information from OII, there was no violation of McCorker’s due process

8

rights. White, 266 F.3d at 767. Therefore, this ground is not a basis for granting habeas
corpus relief either.
Finally, McCorker argues that the email between the DHO and OII Whalen
violated DOC Procedure 02-04-101. Even if this policy were violated, habeas relief
would be unavailable. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (federal habeas relief
is only available for a violation of the U.S. Constitution or other federal laws); Hester v.
McBride, 966 F. Supp. 765, 775 (N.D. Ind. 1997) (violation of IDOC policy in disciplinary
proceeding could not support grant of habeas relief, since federal habeas court “does
not sit to correct any errors of state law”). Accordingly, this ground does not state a
basis for granting habeas corpus relief.
If McCorker 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). However, he may not 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, Christopher McCorker’s petition for writ of habeas corpus is
DENIED. The clerk is DIRECTED to close the case.
SO ORDERED on October 15, 2020

/s/JON E. DEGUILIO
CHIEF JUDGE
UNITED STATES DISTRICT COURT

9