Renninger v. Warden

Filing 19

OPINION AND ORDER: The court DENIES the habeas corpus petition 2 and DIRECTS the clerk to enter judgment in this case. Signed by Judge Robert L Miller, Jr on 10/13/2020. (bas)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
WILLIAM J. RENNINGER,
Petitioner,
v.

CAUSE NO.: 3:19-CV-876-RLM-MGG

WARDEN,
Respondent.
OPINION AND ORDER
William J. Renninger, a prisoner without a lawyer, filed a habeas corpus
petition challenging a disciplinary proceeding at Westville Correctional Facility
(WCC 19-08-006) in which he was found guilty of possessing offensive materials
in violation of disciplinary rule B-246, and lost 60 days of earned-time credits.
The charge was initiated on August 1, 2019, when Officer A. Miranda wrote
a conduct report stating as follows:
On 8-1-19 at approx. 9:38 am I Officer Miranda was conducting a
shake down on offender Renninger William 161711 assigned bed
area 8L-EI-7L when I found unauthorized sexual act pictures in his
property box.
The report reflects that the pictures were sent to the Indiana Department of
Correction Office of Investigations and Intelligence. On August 14, 2019, Mr.
Renninger was formally notified of the charge. The screening report reflects that
he declined the assistance of a lay advocate and didn’t request any witnesses or
evidence.
On August 22, 2019, the hearing officer held a hearing on the charge. Mr.
Renninger made the following statement in his defense: “Not guilty. They were

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not in my box they were in my neighbor’s. I have never seen them before.” The
hearing officer found Mr. Renninger guilty. He imposed a sanction of 30 days
lost earned-time credits, as well as a previously suspended sanction of 30 days
for another disciplinary offense. He imposed this sanction because of the
seriousness of the offense, the frequency and nature of Mr. Renninger’s conduct
violations, and his attitude and demeanor during the hearing. Mr. Renninger
didn’t appeal to the facility head or the final reviewing authority.
When prisoners lose earned-time credits in a disciplinary proceeding, the
Fourteenth Amendment Due Process Clause guarantees them certain procedural
protections: (1) at least 24 hours advance written notice of the charge; (2) an
opportunity to be heard by an impartial decisionmaker; (3) an opportunity to call
witnesses and present documentary evidence 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 be “some evidence” to
support the hearing officer’s decision. Superintendent, Mass. Corr. Inst. v. Hill,
472 U.S. 445, 455 (1985).
Giving the petition liberal construction, Mr. Renninger claims that he was
denied the right to present evidence, the right to a written statement by the factfinder, and the right to an impartial decisionmaker. The respondent argues that
Mr. Renninger’s claims are procedurally defaulted because he didn’t file an
administrative appeal.

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A petitioner must exhaust all available state remedies can obtain federal
habeas relief, and a failure to do so constitutes a procedural default precluding
relief on the merits. 28 U.S.C. § 2254(b)(1)(A); Markham v. Clark, 978 F.2d 993,
995-96 (7th Cir. 1992). Indiana doesn’t provide judicial review of decisions by
prison

administrative

bodies,

so

a

petitioner

satisfies

the

exhaustion

requirement in 28 U.S.C. § 2254(b) by pursuing available administrative
remedies. Moffat v. Broyles, 288 F.3d 978, 981-82 (7th Cir. 2002). “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.” Id. To properly exhaust, “a legal contention
must be presented to each administrative level.” Id.
A federal court may consider a defaulted claim if the petitioner establishes
both “cause” to excuse his default and “actual prejudice resulting from the
alleged constitutional violation.” Crutchfield v. Dennison, 910 F.3d 968, 973 (7th
Cir. 2018) (citation and internal quotation marks omitted). “Cause is an objective
factor external to the defense that impeded the presentation of the claim to the
state courts,” and only applies to factors that “cannot fairly be attributed to the
prisoner.” Id. (citation and internal quotation marks omitted). Prejudice exists
where an error “so infected the entire [proceeding] that the resulting conviction
violates due process.” Johnson v. Foster, 786 F.3d 501, 505 (7th Cir. 2015.) A
petitioner may also obtain review of a defaulted claim where he establishes that
failure to consider the claim would result in a miscarriage of justice. Id. This
narrow exception requires the petitioner to establish that “a constitutional

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violation has probably resulted in the conviction of one who is actually innocent.”
Schlup v. Delo, 513 U.S. 298, 327 (1995) (citation omitted).
The record reflects that Mr. Renninger didn’t pursue an appeal at either
level of administrative review provided for under state law, so his claims are
therefore procedurally defaulted. Moffat v. Broyles, 288 F.3d at 981-982. Mr.
Renninger suggests that his default should be excused because prison staff
prevented him from filing an appeal. He claims that when he appeared for a
hearing, he was told that it was being postponed. He claims he didn’t learn he
had been found guilty until September 6, 2019, when he was meeting with his
mental health counselor and she looked the case up on her computer. He
submits documentation showing that on September 7, 2019, he submitted
“request for interview” forms to the hearing officer, the warden, and other prison
staff, complaining that the hearing officer found him guilty without first
reviewing the video evidence, among other improprieties. On that same date, he
also submitted a grievance to the facility grievance specialist complaining about
the hearing officer’s handling of the case and asking that the guilty finding be
expunged and his earned-time credits restored.
The record belies Mr. Renninger’s allegations about the hearing being
postponed. It reflects that he appeared at the hearing and made a statement in
his defense. The report also reflects that the hearing officer chose the sanction
based in part on Mr. Renninger’s demeanor during the hearing. In short, the
administrative record shows that the hearing proceeded and concluded on
August 22, 2019.

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Even if the court were to accept Mr. Renninger’s allegations as true, it’s
clear from his own filings that he was aware as of September 6, 2019, that he
had been found guilty by the hearing officer. Given the internal prison forms he
submitted, it is also clear that he believed his due process rights had been
violated, yet he didn’t pursue a disciplinary hearing appeal to either the facility
head or the final reviewing authority. Filing “request for interview” forms and a
grievance wasn’t the proper procedure.1 Moffat v. Broyles, 288 F.3d at 982; see
also Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002) (“To exhaust
remedies, a prisoner must file complaints and appeals in the place, and at the
time, the prison’s administrative rules require.”). Even if the request for interview
form sent to the warden could be considered a first-level appeal, Mr. Renninger
didn’t pursue an appeal or otherwise present his due process claims to the final
reviewing authority, which is a necessary step. Moffat v. Broyles, 288 F.3d at
982. Nothing in the record to suggests that prison officials prevented him from
doing so. He hasn’t established cause to set aside his default.
Mr. Renninger raises the miscarriage of justice exception, without making
a clear argument as to how it applies to him. He might be arguing that he is
“innocent” because Officer Miranda didn’t specifically list the identification code
on the property box in which the pictures were found in the conduct report.
Unlike in a criminal case, guilt need not be proven beyond a reasonable doubt

1 In one of his filings, Mr. Renninger acknowledges that he was familiar with his
rights under the disciplinary rules because he served as a lay advocate for
approximately a year. (ECF 2-1 at 1.) Under the disciplinary code, to be approved to
serve as a lay advocate, an inmate must “[h]ave a demonstrated working knowledge of
this policy and administrative procedure.” Disciplinary Code, § IX(D)(1)(e).

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in a prison disciplinary proceeding. Moffat v. Broyles, 288 F.3d at 981. Rather,
there only needs to be “some evidence” to support the finding of guilt. Supt. v.
Hill, 472 U.S. at 455. This is a “lenient standard, requiring no more than a
modicum of evidence,” and even “meager proof will suffice.” Webb v. Anderson,
224 F.3d 649, 652 (7th Cir. 2000). A conduct report alone can be enough
evidence to support a finding of guilt, McPherson v. McBride, 188 F.3d 784, 786
(7th Cir. 1999), as can circumstantial evidence. Meeks v. McBride, 81 F.3d 717,
721 (7th Cir. 1996).
This conduct report states that Officer Miranda found the pictures in the
property box belonging to Mr. Renninger located in his assigned bed area. Under
prison rules, “possession” means “[o]n one’s person, in one’s quarters, in one’s
locker or under one’s physical control.” IDOC Manual of Policies & Procedures,
Disciplinary Code for Adult Offenders (herein “Disciplinary Code”), § III(BB) (eff.
June 1, 2015). Prison rules also presume inmates
to be responsible for any property, prohibited property or contraband that
is located on their person, within their cell or within areas of their housing,
work, educational or vocational assignment that are under their control.
Areas under an offender’s control include, but are not limited to: the door
track, window ledge, ventilation unit, plumbing and the offender’s desk,
cabinet/locker, shelving, storage area, bed and bedding materials in
his/her housing assignment and the desk, cubicle, work station and
locker in his/her work, educational or vocational assignment.
Id. The conduct report provided ample evidence that the pictures were found in
Mr. Renninger’s property box and so were in his possession. To the extent Mr.
Renninger relies on prison policy to argue that the officer was required to note
the identification number on the property box, an officer’s violation of prison
policy doesn’t establish a constitutional violation. Estelle v. Gamble, 502 U.S.
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62, 67–68 (1991); Keller v. Donahue, 271 F. App’x 531, 532 (7th Cir. 2008)
(inmate’s claim that prison failed to follow internal policies had “no bearing on
his right to due process”). Mr. Renninger hasn’t established that he meets the
narrow miscarriage of justice exception.
If Mr. Renninger could overcome his procedural default, his claims
wouldn’t entitle him to relief on the merits. He first claims that he was denied
the right to review and present evidence. The full panoply of rights available at a
criminal trial don’t apply in the prison disciplinary context. Rasheed-Bey v.
Duckworth, 969 F.2d 357, 361 (7th Cir. 1992). An inmate does have a right to
request and present evidence when consistent with institutional safety and
correctional goals. Wolff v. McDonnell, 418 U.S. at 564. The screening report,
which Mr. Renninger signed, reflects that he didn’t request any witnesses or
evidence. Although he suggests that he didn’t know the screening officer checked
these boxes, he doesn’t explain why he signed this document if it didn’t
accurately reflect his wishes. The prison can’t be faulted for failing to consider
evidence that Mr. Renninger didn’t properly request. Sweeney v. Parke, 113 F.3d
716, 720 n.5 (7th Cir. 1997); see also Miller v. Duckworth, 963 F.2d 1002, 1005
n.2 (7th Cir. 1992) (observing that a “prisoner certainly cannot wait until the day
of the hearing to make such requests”).
Additionally, to the extent Mr. Renninger wanted an opportunity to view
the pictures found in his property box, “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). The court

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concludes that turning over the pictures to Mr. Renninger could have jeopardized
institutional safety. See Wolff v. McDonnell, 418 U.S. at 566; Jones v. Cross, 637
F.3d 841, 847 (7th Cir. 2011). Mr. Renninger hasn’t explained how viewing the
pictures would have aided his defense; he already told the hearing officer that
the pictures weren’t his and that he had never seen them before. See Piggie v.
Cotton, 344 F.3d 674, 677 (7th Cir. 2003) (denial of evidence is considered
harmless unless the evidence would have aided the inmate’s defense).
Mr. Renninger also wanted to question Officer Miranda, but he had no
general right to “confront and cross examine adverse witnesses.” Rasheed-Bey v.
Duckworth, 969 F.2d at 361. Prison rules allowed him to submit written
questions in advance of the hearing, but there is no indication that he did so.
See Disciplinary Code, § IX(D)(2)(l). Moreover, the questions he intended to pose
to Officer Miranda—namely, whether he “participated in a dorm wide shakedown
and not just my area,” and how many other property boxes were in the area—
would not have directly undercut the officer’s account that he found the
photographs in Mr. Renninger’s property box next to his bed. (See ECF 15 at 34 .) Likewise, he has not explained why surveillance video showing that a dormwide search was conducted would have exculpated him from the charge. Mr.
Renninger also wanted to ask Officer Miranda “why he did not follow policy and
document the number” on the property box, but as stated above, the officer’s
failure to follow departmental policy would not exculpate Mr. Renninger from the
charge or establish a constitutional violation. Estelle v. Gamble, 502 U.S. at 67–
68; Keller v, Donahue, 271 F. App’x at 532. Mr. Renninger also mentions that he

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wanted fingerprint evidence and a polygraph test, but there is nothing in the
record to suggest that such evidence existed. Prisoners have a right to submit
relevant exculpatory evidence, but they don’t have the right to the creation of
evidence that does not already exist. Wolff v. McDonnell, 418 U.S. at 556. He
hasn’t established a violation of his due process rights in connection with this
claim.
Mr. Renninger next claims that he was denied a written statement by the
decisionmaker. Due process requires a written statement by the fact-finder of
the evidence relied on and the reasons for the disciplinary action. Wolff v.
McDonnell, 418 U.S. at 564. The written statement requirement is “not onerous”
and “[t]he statement need only illuminate the evidentiary basis and reasoning
behind the decision.” Scruggs v. Jordan, 485 F.3d 934, 941 (7th Cir. 2007). The
hearing report reflects that the hearing officer relied on the conduct report to
find Mr. Renninger guilty. The report further reflects that the sanction imposed
was based on the seriousness of the offense, the frequency and nature of Mr.
Renninger’s conduct violations, and his attitude and demeanor during the
hearing. Though not overly detailed, the report adequately explains the
evidentiary basis and reasoning behind the hearing officer’s decision.
Mr. Renninger claims that he wasn’t given a copy of the report after the
hearing. The record belies this argument: it reflects that Mr. Renninger refused
to sign for the report, not that the hearing officer failed to give him one. A prisoner
can’t manufacture a constitutional violation through his own conduct. See
generally Rodriguez v. Briley, 403 F.3d 952, 953 (7th Cir. 2005). In any event,

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Mr. Renninger has received a copy of the hearing report now, as it is attached to
the respondent’s motion. See Jensen v. Knight, No. 1:18-CV-03230-TWP-MPB,
2019 WL 3779767, at *4 (S.D. Ind. Aug. 12, 2019) (observing that with respect
to the written statement requirement, “there is no hard time limit under federal
constitutional law for providing the inmate with this information”). Moreover, to
obtain habeas relief on this claim, Mr. Renninger would have to show that the
delay prejudiced him. Piggie v. Cotton, 342 F.3d 660, 666 (7th Cir. 2003)
(harmless error analysis applies to prison disciplinary proceeding); see also
O’Neal v. McAninch, 513 U.S. 432, 436 (1995) (constitutional error is harmless
unless it had a “substantial and injurious effect” on the outcome of the
proceedings). To the extent Mr. Enninger might be claiming that the lack of a
report hindered his ability to exhaust his administrative appeals, he hasn’t been
prejudiced because this court has considered his claims on the merits despite
his lack of exhaustion.2 See Jensen v. Knight, 2019 WL 3779767, at *4 (inmate
didn’t establish that hearing officer’s failure to provide him a copy of hearing
report prejudiced his ability to pursue an appeal, where the court bypassed the
exhaustion issue and considered his claims on the merits).
Finally, Mr. Renninger claims that he was denied an impartial
decisionmaker. Prison adjudicators are “entitled to a presumption of honesty
and integrity,” and “the constitutional standard for improper bias is high.” Piggie

2 The court doesn’t presume that the lack of a report hindered his ability to file an
administrative appeal. Even without the report, he was able to craft very specific due process
arguments challenging the guilty finding, which are contained in his petition and supporting
memorandum. There appears to be no reason he couldn’t have included these same arguments
in an administrative appeal.

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v. Cotton, 342 F.3d at 666. Due process prohibits a prison official who was
personally and substantially involved in the underlying incident from acting as
a decisionmaker in the case. Id. Due process isn’t 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.
Mr. Renninger doesn’t argue, and the record offers no reason to conclude,
that the hearing officer was involved in any way in the underlying incident
leading to the disciplinary charge. Rather, Mr. Renninger’s claim of bias appears
to be based on his allegation that the hearing officer told him that because a
sergeant signed off on the conduct report, he was “not reducing” the charge.
(ECF 2 at 2.) This claim is based entirely on Mr. Renninger’s uncorroborated
account, but even accepting it as true, the fact that the hearing officer made a
statement about not “reducing” the charge doesn’t mean he had prejudged Mr.
Renninger’s guilt.3 To the extent Mr. Renninger is claiming that the hearing
officer made an arbitrary decision, “prisoners are entitled to be free from
arbitrary actions of prison officials, but . . . even assuming fraudulent conduct
on the part of prison officials, the protection from such arbitrary action is found
in the procedures mandated by due process.” McPherson v. McBride, 188 F.3d

3 Under the disciplinary code, a hearing officer’s decision “shall be guilty, not guilty, or
dismissed.” Disciplinary Code, § IX(E)(2)(b). “If an offender admits guilt or the evidence shows
guilt of an equal or lesser related disciplinary code violation,” the hearing officer has discretion
to find the inmate guilty of the lesser code violation. Id. There is no indication from the record
that Mr. Renninger admitted his guilt or argued to the hearing officer that a lesser related
disciplinary offense more closely matched the conduct underlying the charge.

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at 787. As already outlined, Mr. Renninger hasn’t established that his due
process rights were violated.
For these reasons, the court:
(1) DENIES the habeas corpus petition (ECF 2);
(2) DIRECTS the clerk to enter judgment in this case.
SO ORDERED on October 13, 2020
s/ Robert L. Miller, Jr.
JUDGE
UNITED STATES DISTRICT COURT

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