Blakey v. Superintendent
Filing
2
OPINION AND ORDER denying 1 Petition for Writ of Habeas Corpus. The clerk is DIRECTED to enter judgment and close this case. Signed by Judge Rudy Lozano on 12/18/17. (Copy mailed to pro se party)(ksp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
HERBERT EARL BLAKEY,
)
)
)
)
)
)
)
)
)
Petitioner,
v.
SUPERINTENDENT,
Respondent.
CAUSE
NO. 4:17-CV-51 RL-APR
OPINION AND ORDER
This matter is before the Court on the 28 U.S.C. § 2254 Habeas
Corpus Petition Challenging a Prison Disciplinary Proceeding, filed
by Herbert Earl Blakey, a pro se prisoner, on June 15, 2017. For
the reasons set forth below, the habeas corpus petition (ECF 1) is
DENIED.
The clerk is DIRECTED to enter judgment and close this
case.
BACKGROUND
Blakey filed a petition under 28 U.S.C. § 2254 challenging his
prison
disciplinary
hearing
(MCF
17-01-0371)
at
the
Miami
Correction Facility where a Disciplinary Hearing Officer (DHO)
found him guilty of possession or use of a controlled substance in
violation of Indiana Department of Correction policy B-202.
at 1.
ECF 1
As a result, Blakey was sanctioned with the loss of 30 days
earned credit time and was demoted from Credit Class 2 to Credit
Class 3.
Id.
DISCUSSION
Blakey argues there are three grounds which entitle him to
habeas corpus relief.
In the first ground, he claims that the DHO
did not have sufficient evidence to find him guilty.
ECF 1 at 2.
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
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).
[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, the Conduct Report charged Blakey as follows:
On January 21, 2017 at approximately 10:42, I, Officer B.
Johnson, was conducting a random cell search in cell
323/324. As I was searching the bottom bunk of Offender
2
Blakey, Herbert 951672 C323 (B) under his pillow there
was [a] paper towel soaked in coffee that had a small
ripped of[f] piece of a greeting card on it. The coffee
paper is known for what offenders use as rolling papers
for smoking. As I continued to search the bottom bunk
under the mattress in a book w[ere] two more pieces of a
greeting card ripped up approximately the size of an
offender id card. This is believed to be the liquid K2
that is being sprayed on greeting cards that [are] coming
through the mail.
ECF 1 at 4.
K-2 is the name of synthetic marijuana. See McNeeley
v. Superintendent, No. 3:13 CV 401, 2014 WL 301462, at *1 (N.D.
Ind.
Jan.
28,
2014)
citing
Nat'l
Drug
Control
Pol'y,
https://obamawhitehouse.archives.gov/ondcp/ondcp-fact-sheets/
synthetic-drugs-k2-spice-bath-salts (last accessed November 28,
2017).
The IDOC defines offense B-202 as “[p]ossession or use of any
unauthorized substance controlled pursuant to the laws of the State
of
Indiana
or
the
paraphernalia.”
United
Adult
States
Code
Disciplinary
or
possession
Process,
of
Appendix
drug
I.
http://www.in.gov/idoc/files/02-04-101_APPENDIX_I-OFFENSES_6-12015(1).pdf. The IDOC’s definition of ‘possession’ includes any
contraband
on
the
prisoner’s
person,
without
reference
to
ownership: “offenders are presumed 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.”
Disciplinary
Code
for
Adult
Offenders.
h t t p : / / w w w . i n . g o v / i d o c / f i l e s / 0 2 - 0 4 3
101_The_Disciplinary_Code_for_Adult_Offenders___6-1-2015.pdf.
Indiana State law prohibits possession of any synthetic drug. Ind.
Code § 35-48-4-11.5.
The DHO’s finding that Blakey was guilty was neither arbitrary
nor unreasonable in light of the evidence in the Conduct Report.
A conduct report alone can be enough to support a finding of guilt.
McPherson, 188 F.3d at 786.
Here, Blakey’s possession of drug
paraphernalia—coffee paper and three ripped off pieces of greeting
cards—used for rolling and smoking synthetic marijuana, combined
with the suspicious concealment of these items under his pillow and
mattress, constitute “some evidence” that Blakey was guilty of
violating offense B-202.
In the second ground, Blakey argues that his due process
rights were violated because the greeting cards were never tested
to determine if liquid K-2 had been sprayed on them.
ECF 1 at 2.
Here, the prison's refusal to test the greeting cards did not
violate
Blakey’s
due
process
rights.
“Prison
disciplinary
proceedings are not part of a criminal prosecution, and the full
panoply of rights due a defendant in such proceedings does not
apply.”
Wolff v. McDonnell, 418 U.S. 539, 556 (1974).
While
prisoners have a right to submit relevant exculpatory evidence,
they do not have the right to create evidence which does not
already exist because "[p]rison officials must have the necessary
discretion to keep the hearing within reasonable limits."
4
Id. See
also Freitas v. Auger, 837 F.2d 806, 812 n.13 (8th Cir. 1988)
("Freitas was not entitled to a polygraph examination . . ..");
Rhatigan v. Ward, 187 Fed. Appx. 889, 890-891 (10th Cir. 2006); and
Arthur v. Ayers, 43 Fed. Appx. 56, 57 (9th Cir. 2002) (inmates were
not entitled to laboratory testing of substances).
Thus, the fact
that the greeting cards were not tested for liquid K-2 is not a
basis for habeas relief.
In ground three, Blakey argues that Officer Johnson wrote him
up “out of spite” or in retaliation for Officer Johnson’s prior
frivolous conduct reports being dismissed.
ECF 1 at 3.
prison
are
disciplinary
context,
adjudicators
“entitled
In the
to
a
presumption of honesty and integrity,” and “the constitutional
standard for improper bias is high.”
660, 666 (7th Cir. 2003).
Piggie v. Cotton, 342 F.3d
While prisoners have a right to be free
from arbitrary punishment, they are sufficiently protected from
such action where the procedural safeguards in Wolff have been
satisfied. McPherson, 188 F.3d at 787; Guillen v. Finnan, 219 F.
App’x 579, 582 (7th Cir. 2007).
Because Blakey was afforded
appropriate procedural safeguards, his claim that the Officer
Johnson’s conduct report was retaliatory in nature does not entitle
him to habeas corpus relief.
CONCLUSION
5
For the reasons set forth above, the habeas corpus petition
(ECF 1) is DENIED.
The clerk is DIRECTED to enter judgment and
close this case.
DATED: December 18, 2017
/s/ RUDY LOZANO, Judge
United States District Court
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