MCCRAY v. BUTTS

Filing 14

ENTRY - The petition for a writ of habeas corpus is DENIED, the respondent's motion to dismiss (dkt. 10 ) is GRANTED and this action is DISMISSED with prejudice. Judgment consistent with this Entry shall now issue. Signed by Judge Tanya Walton Pratt on 6/26/2012. Copy Mailed.(JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
KEITH McCRAY,
Petitioner,

v.
KEITH BUTTS,

Respondent.

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No. 1:11-cv-1713-TWP-DML

Entry Discussing Petition for Writ of Habeas Corpus
In a proceeding identified as ISR 09-11-0064, Keith McCray (“Mr. McCray”)
was disciplined by a conduct board which found that Mr. McCray had violated a
prison rule at the Pendleton Correctional Facility. Mr. McCray was found guilty of
committing battery without a weapon or injury in violation of offense B-212 of the
Adult Disciplinary Procedures. The conduct board sanctioned Mr. McCray with the
imposition of 1) a period in disciplinary segregation, and 2) the deprivation of 15
days of earned good time.
Mr. McCray has filed a petition for a writ of habeas corpus, contending that
the proceeding described above is constitutionally infirm. The Respondent, Keith
Butts (“the Commissioner”) has filed a Motion to Dismiss on the basis that Mr.
McCray has failed to first exhaust all available administrative remedies.
Indiana prisoners must pursue their available administrative remedies
before filing a habeas petition. Eads v. Hanks, 280 F.3d 728, 729 (7th Cir. 2002);
Markham v. Clark, 978 F.2d 993, 995 (7th Cir. 1992). The failure to do so, whether

pertaining to the remedy as a whole or to the inclusion in an administrative appeal
each claim which is later asserted in a federal habeas petition, constitutes a
procedural default.
The pleadings and the expanded record in this action for a writ of habeas
corpus show that Mr. McCray did not exhaust his available administrative remedies
with respect to the disciplinary proceeding challenged here.1 Specifically, McCray
did not complete the second step of the appeal process to the Final Reviewing
Authority.
Mr. McCray could overcome procedural default through a showing of cause
and prejudice or that a fundamental miscarriage of justice would result if the merits
of his claim are not reached. Aliwoli v. Gilmore, 127 F.3d 632, 634 (7th Cir. 1997)
(citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)). However, Mr. McCray has
not shown cause for and prejudice from his failure to appeal. Accordingly, the court
is precluded from reaching the merits of the claims in the petition. The petition for a
writ of habeas corpus is therefore denied, the respondent=s motion to dismiss (dkt.
10) is granted and this action is dismissed with prejudice.
Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.

06/26/2012
Date: _________________

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

1 McCray has not replied to the respondent=s motion to dismiss. The effect of this,
pursuant to 28 U.S.C. ' 2248, is that "[t]he allegations of . . . an answer to an order to show
cause in a habeas corpus proceeding, if not traversed, shall be accepted as true."

Distribution:
Keith McCray No. 121389
Pendleton Correctional Facility
4490 West Reformatory Road
Pendleton, IN 46064
Linda Sue Leonard
[e-mail]