BALLINGER v. KNIGHT
Entry Discussing Petition for Writ of Habeas Corpus - The petition of John Ballinger on for a writ of habeas corpus challenges a prison disciplinary proceeding identified as No. IYC 16-02-0142. For the reasons explained in this Entry, Ballinger's habeas petition must be denied and the action dismissed. Judgment consistent with this Entry shall now issue. (See Entry.) Copy to petitioner via US Mail. Signed by Judge Jane Magnus-Stinson on 2/27/2017.(RSF)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
Entry Discussing Petition for Writ of Habeas Corpus
The petition of John Ballinger on for a writ of habeas corpus challenges a prison
disciplinary proceeding identified as No. IYC 16-02-0142. For the reasons explained in this Entry,
Ballinger’s habeas petition must be denied.
Prisoners in Indiana custody may not be deprived of good-time credits, Cochran v. Buss,
381 F.3d 637, 639 (7th Cir. 2004) (per curiam), or of credit-earning class, Montgomery v.
Anderson, 262 F.3d 641, 644-45 (7th Cir. 2001), without due process. The due process requirement
is satisfied with the issuance of advance written notice of the charges, a limited opportunity to
present evidence to an impartial decision maker, a written statement articulating the reasons for
the disciplinary action and the evidence justifying it, and “some evidence in the record” to support
the finding of guilt. Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985); Wolff v.
McDonnell, 418 U.S. 539, 570-71 (1974); Piggie v. Cotton, 344 F.3d 674, 677 (7th Cir. 2003);
Webb v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000).
B. The Disciplinary Proceeding
On February 8, 2016, Correctional Officer Bill Cash issued a Report of Conduct charging
Ballinger with possession of a cellular phone in violation of Code A-121. The Report of Conduct
states, “On the above date at approximately 12:30 PM, I Officer B. Cash was doing a shakedown
of offender Ballinger, J. #903123 (OS1-23) property. As I was searching his assigned locker I
found a LG Verizon cell phone velcroed under his assigned locker”. Ballinger was notified of the
charge on February 12, 2016, when he was served with the Report of Conduct and the Notice of
Disciplinary Hearing. The Screening Officer noted that Ballinger did not request any witnesses or
evidence other than the cell phone.
The Hearing Officer conducted a disciplinary hearing on March 16, 2016. During the
hearing, Ballinger offered the statement, “It was not my phone. I never made any calls on it. The
cabinet was missing a panel along the bottom so that anyone had access to putting something under
it. I stay out of trouble.” The Hearing Officer determined that Ballinger had violated Code A-121
possession of a cell phone based on the staff statements, the offender statement, and the cell phone.
The sanctions imposed included the deprivation of 180 days of earned credit time and a demotion
from credit class I to II. The Hearing Officer imposed the sanctions because of the seriousness,
frequency, and nature of the offense, the offender’s attitude and demeanor during the hearing, the
degree to which violation disrupted or endangered the security of the facility, and the likelihood
of the sanction having a corrective effect on the offender’s future behavior.
Ballinger’s appeals were denied and he filed the present petition for a writ of habeas corpus.
Ballinger challenges the disciplinary action taken against him arguing that the evidence
was insufficient to sustain the conviction.
In reviewing the sufficiency of the 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); see also Meeks
v. McBride, 81 F.3d 717, 720 (7th Cir. 1996) (“because the ‘some evidence’ standard . . . does not
permit courts to consider the relative weight of the evidence presented to the disciplinary board, it
is ‘[g]enerally immaterial that an accused prisoner presented exculpatory evidence unless that
evidence directly undercuts the reliability of the evidence on which the disciplinary authority
relied’ in support of its conclusion”)(quoting Viens v. Daniels, 871 F.2d 1328, 1335 (7th Cir.
1989)). Instead, the “some evidence” standard of Hill is lenient, “requiring only that the decision
not be arbitrary or without support in the record.” McPherson, 188 F.3d at 786.
The evidence to support Ballinger’s disciplinary conviction included Officer Cash’s
statement that the cell phone was located under Ballinger’s locker and the cell phone itself. This
is “some evidence” sufficient to sustain the conviction. In support of his argument that the evidence
against him was insufficient, Ballinger asserts that “those cabinets/lockers can only be removed
by usage of power tools.” This appears to be an argument that someone else placed the cell phone
on his locker. But this is not enough to show that the evidence was not sufficient. First, a
disciplinary conviction can be based on the concept of “constructive possession” – that an item
located in an area accessible to the prisoner and few others can be determined to be in his
possession. See Pigg v. Finnan, 289 F. App'x 945, 947 (7th Cir. 2008) (“When only a few inmates
have access to the place contraband is found, constructive possession is “some evidence” sufficient
to sustain a disciplinary conviction.”) (citing Hamilton v. O’Leary, 976 F.2d 341, 345 (7th Cir.
1992); Mason v. Sargent, 898 F.2d 679, 679-80 (8th Cir. 1990)). In addition, this argument does
not directly undercut the reliability of the evidence relied on – that the cell phone was found
attached to Ballinger’s locker. See Meeks, 81 F.3d at 720. Ballinger thus has not shown his
entitlement to habeas relief based on his argument that the evidence was insufficient to support the
“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 Ballinger to the relief he seeks.
Accordingly, Ballinger’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.
Marjorie H. Lawyer-Smith
INDIANA ATTORNEY GENERAL
PLAINFIELD - CF
PLAINFIELD CORRECTIONAL FACILITY
727 MOON ROAD
PLAINFIELD, IN 46168
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