WEAVER v. ALSIP

Filing 11

ENTRY Discussing Petition for Writ of Habeas Corpus - Mr. Weaver'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 7/22/2013. Copy Mailed. (JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JOSHUA WEAVER,
Petitioner,
v.
MR. ALSIP,
Respondent.

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Case No. 1:13-cv-427-TWP-TAB

Entry Discussing Petition for Writ of Habeas Corpus
This matter is before the Court on a Petition for Writ of Habeas Corpus. Petitioner Joshua
Weaver’s (“Mr. Weaver”) is serving the executed portion of a sentence imposed by an Indiana
state court following his conviction for dealing in cocaine. In the present action, Mr. Weaver
challenges the validity of a prison disciplinary proceeding identified as No. ISR 13-02-080.
The pleadings and the expanded record show the following relative to the challenged
proceeding:
1.

Mr. Weaver was charged with being in possession of two photographs and one

homemade greeting card which contained offensive material relating to a security threat group. On
February 25, 2013 he was notified of the charge and a hearing was held on February 25, 2013. Mr.
Weaver attended the hearing and made a statement concerning the charge. That statement was
considered by the hearing officer, along with the other evidence.
2.

Mr. Weaver was found guilty of the charged misconduct and was sanctioned with a

written reprimand, a 90 day deprivation of earned credit time and a demotion from credit class I to
credit class II. His administrative appeal was rejected and the filing of this action followed. It has
been fully at issue since June 11, 2013.
3.

In order to prevail on his petition, Mr. Weaver must demonstrate that the

challenged proceeding caused him to be in custody “in violation . . . .” 28 U.S.C. § 2254(a).

Limited and well-defined due process procedures must be followed before good time may be taken
from a prison inmate such as Mr. Weaver,
Due process requires that prisoners in disciplinary proceedings be given: “(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); see also Wolff v. McDonnell, 418
U.S. 539, 94 S. Ct. 2963, 41 L.Ed.2d 935 (1974).
Scruggs v. Jordan, 485 F.3d 934, 939 (7th Cir. 2007). 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).
4.

The claims in Mr. Weaver’s habeas petition are as follows: (1) the evidence he

requested was not explained to him, and (2) he was not given an opportunity to compare images on
the evidence with a source containing known signs, which was a violation of due process and the
Disciplinary Code for Adult Offenders handbook.
5.

The conduct report filed against Mr. Weaver includes the following: “On the back

of each photograph was writing and abbreviations used by a security threat group known as the
Saxon Knights” and “one homemade greeting card and one personal photograph which were also
discovered in and confiscated…did have a symbol drawn…which is a symbol known to be used by
different White Supremacist Groups.”
6.

A federal habeas court Awill overturn the . . . [conduct board=s] decision only if no

reasonable adjudicator could have found . . . [the petitioner] guilty of the offense on the basis of the
evidence presented”), Henderson v. United States Parole Comm'n, 13 F.3d 1073, 1077 (7th Cir.
1993) cert. denied, 115 S. Ct. 314 (1994). Viewing the evidence in the manner most favorable to
the hearing officer’s decision, the hearing officer found the writings, symbols and images located
on the property possessed by Mr. Weaver were known to be associated with established security
threat groups. This made him guilty of the offense with which he was charged. Mr. Weaver was

aware of that evidence, and due process did not entitle him to more, including an explanation of the
evidence which he would find convincing. See also Hill, 472 U.S. at 457 ("The Federal
Constitution does not require evidence that logically precludes any conclusion but the one reached
by the disciplinary board.").
6.

Mr. Weaver’s second habeas claim is that he was not permitted to compare a prison

roster of security threat group symbols and images with those found in his possession and
described in the conduct report. This, too, is a claim to a step which is not required by Wolff or its
progeny.
7.

"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 Mr. Weaver to the relief
he seeks. Accordingly, Mr. Weaver’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.

07/22/2013
Date: __________________
Distribution:
Joshua Weaver
No. 180866
Pendleton Correctional Facility
4490 West Reformatory Road
Pendleton, IN 46064
All Electronically Registered Counsel

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