CARTER v. BUTTS

Filing 15

ENTRY - Carter's petition for a writ of habeas corpus must be denied and the action dismissed. Judgment consistent with this Entry shall now issue. Signed by Judge Tanya Walton Pratt on 10/26/2012. Copy Mailed.(JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
THEOTHUS CARTER,
Petitioner,
vs.
KEITH BUTTS,
Respondent.

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No. 1:12-cv-1076-TWP-DML

Entry Discussing Petition for Writ of Habeas Corpus
For the reasons explained in this Entry, the petition of Theothus Carter
(ACarter@) for a writ of habeas corpus must be denied and this action dismissed
with prejudice.
Background
The pleadings and the expanded record in this action establish the following:
1.
Carter is confined at an Indiana prison. He seeks a writ of habeas corpus
with respect to a prison disciplinary proceeding identified as No. ISR 12-03-0079,
wherein he was found guilty of having violated prison rules of conduct by
threatening.
2.
A conduct report was issued on March 19, 2012, reciting that Carter told
Supervisor Neale that, “[Supervisor Neale] was going to start bringing in shit and
moving shit or people are going to get hurt” and “[Supervisor Neale and her family
were] going to get hurt.”
3.
After being supplied with a copy of the written charge and notified of his
procedural rights, at a hearing conducted on April 17, 2012, Carter was found guilty
of the misconduct with which he had been charged. He was sanctioned, in part, with
the deprivation of a period of earned good-time and a demotion in his credit class,
his administrative appeals were rejected, and this action followed.
Carter’s Claims
Contending that the proceeding described above is tainted by constitutional
error, Carter seeks a writ of habeas corpus. Carter’s specific contentions are that: 1)
Department of Correction policies were violated; 2) segregation policies were
violated; and 3) he was denied evidence.

Discussion
A federal court may issue a writ of habeas corpus pursuant to 28 U.S.C. '
2254(a) only if it finds the applicant Ais in custody in violation of the Constitution or
laws or treaties of the United States.@ Id. When a prison disciplinary proceeding
results in a sanction which affects the expected duration of a prisoner=s
confinement, typically through the deprivation of earned good-time credits or the
demotion in credit earning class, the state may not deprive inmates of good-time
credits without following constitutionally adequate procedures to ensure that the
credits are not arbitrarily rescinded and habeas corpus is the proper remedy.
Cochran v. Buss, 381 F.3d 637, 639 (7th Cir. 2004).
"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). In these circumstances, Carter was entitled
to the following process before being deprived of his liberty interests: (1) advance (at
least 24 hours before hearing) written notice of the claimed violation; (2) the
opportunity to be heard before an impartial decision-maker; (3) the opportunity to
call witnesses and present documentary evidence (when consistent with
institutional safety); and (4) a written statement by the fact-finder of the evidence
relied on and the reasons for the disciplinary action. Rasheed-Bey v. Duckworth, 969
F.2d 357, 361 (7th Cir. 1992). In addition, there is a substantive component to the
issue, which requires that the decision of a conduct board be supported by "some
evidence." Superintendent v. Hill, 472 U.S. 445 (1985).
Under Wolff and Hill, Carter received all the process to which he was
entitled. That is, the charge was clear, adequate notice was given, and the evidence
was sufficient. In addition, (1) Carter was given the opportunity to appear before
the conduct board and make a statement concerning the charge, (2) the conduct
board issued a sufficient statement of its findings, and (3) the conduct board issued
a written reason for its decision and for the sanctions which were imposed. Carter=s
claims otherwise are unavailing here.
!
Carter complains in claims one and three that his due process rights
were violated through the violation of Adult Disciplinary Procedures. These claims
are based solely on asserted violations of prison policies, but even if factually
supported such violations do not support the award of federal habeas relief. Colon v.
Schneider, 899 F.2d 660, 672-73 (7th Cir. 1990); Evans v. McBride, 94 F.3d 1062
(7th Cir. 1996); see also Del Vecchio v. Illinois Dept. of Corrections, 31 F.3d 1363,
1370 (7th Cir. 1994) (habeas corpus jurisdiction is limited to evaluating alleged
violations of federal statutory or constitutional law), cert. denied, 516 U.S. 983
(1995).

!
Carter claims that there was a violation of his rights as to segregation
time. Carter’s segregation did not constitute punishment in a constitutional sense
and did not result in the imposition of Acustody@ sufficient to trigger any due process
interests via a writ of habeas corpus. This form of confinement does not constitute
Acustody@ which can be challenged in an action for habeas corpus relief. Cochran v.
Buss, 381 F.3d 637, 639 (7th Cir. 2004); Montgomery v. Anderson, 262 F.3d 641, 644
(7th Cir. 2001)(when no recognized liberty or property interest has been taken, the
confining authority Ais free to use any procedures it chooses, or no procedures at
all@).
!
Carter claims that he was denied evidence reports, witness statements
from Officer Long and a continuance and that such actions resulted in an unfair
hearing. Due process requires that a prisoner be allowed to call witnesses and
present documentary evidence when consistent with institutional safety and
correctional goals. Wolff, 418 U.S. at 566. Due process does not require disclosure of
evidence unless such evidence is material and exculpatory, and “there is no right to
call witnesses whose testimony would be irrelevant, repetitive, or unnecessary.”
Piggie v. Cotton, 344 F.3d 674, 677-78 (7th Cir. 2003). For this reason, Carter did
not have a right to call Officer Long.
Unlike a criminal defendant, a prisoner has no right to confront adverse
witnesses or evidence at a disciplinary hearing. Wolff v. McDonnell, 418 U.S. at 568;
see also White v. Ind. Parole Bd., 266 F.3d 759, 768 (7th Cir.2001) (prisoner had no
due process right to view videotape that the disciplinary board considered). Nothing
in the record indicates that the video was even probative; the video summary
stated, “[d]ue to the safety and security of the facility, Offender is not allowed to
view the video. No activity noted.” Carter also argues that being denied a
continuance prevented him from properly preparing his defense. Although Wolff
requires that an inmate be given 24 hours advance written notice of the factual
basis of the charges against him, it does not require that he be granted a
continuance. The Seventh Circuit has instructed that “Baxter v. Palmigiano, 425
U.S. 308, 96 S. Ct. 1551, 47 L.Ed.2d 810 (1976), warns the court of appeals not to
add to the procedures required by Wolff, which, Baxter held, represents a balance of
interests that should not be further adjusted in favor of prisoners.” White v. Ind.
Parole Bd., 266 F.3d 759, 767–68 (7th Cir. 2001) (citation altered). Here, Carter was
given four weeks between his notification date and his hearing date, which is well
past the minimum 24 hours required by Wolff. Therefore, the denial of additional
time did not violate Carter’s due process rights.
"The touchstone of due process is protection of the individual against
arbitrary action of the government." Wolff, 418 U.S. at 558. There was no arbitrary
action in any aspect of the charge, disciplinary proceedings, or sanctions involved in
the events identified in this action, and there was no constitutional infirmity in the
proceeding which entitles Carter to the relief he seeks. Accordingly, Carter=s

petition for a writ of habeas corpus must be denied and the action dismissed.
Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.

10/26/2012
Date: _________________________

Distribution:
Theothus Carter
No. #967392
Pendleton Correctional Facility
4490 West Reformatory Road
Pendleton, IN 46064
Electronically Registered Counsel

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