WEMER v. SUPERINTENDENT
ENTRY Discussing Petition for Writ of Habeas Corpus - Accordingly, Wemer's petition for a writ of habeas corpus must be denied and the action dismissed. Judgment consistent with this Entry shall now issue. (See Entry.) Copy to Petitioner via U.S. Mail. Signed by Judge William T. Lawrence on 3/22/2017.(JLS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
Entry Discussing Petition for Writ of Habeas Corpus
The petition of Frank Wemer for a writ of habeas corpus challenges a prison disciplinary
proceeding identified as No. WCC 14-06-0872. For the reasons explained in this Entry, Wemer’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,
Kathy Alvey, Wemer’s current custodian, is substituted as the proper respondent in this action.
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 June 30, 2014, Internal Affairs Supervisor Whelan issued a Report of Conduct
charging Wemer with violating a state law (gang activity) in violation of Class A-100. The
Report of Conduct states:
On 4/23/2014 there was an assault on offender Taulbee, 903125. After reviewing
the camera at exactly 8:38:10 pm offender Wemer, Frank 119650 was seen
running full speed and tackling offender Taulbee from behind as four other
inmates were assaulting offender Taulbee. After Wemer tackled Taulbee the other
four inmates continued to collectively hit him while on the ground, until offender
Taulbee was able to get away from the aggressors. There is zero tolerance for
STG gang Activity, and this behavior is against state law.
Wemer was notified of the charge on July 3, 2014, when he was served with the Report of
Conduct and the Notice of Disciplinary Hearing (Screening Report). The Screening Officer
noted that Wemer did not request any witnesses and requested the video and photos for evidence.
The Hearing Officer conducted a disciplinary hearing on July 24, 2014. The Hearing
Officer noted Wemer’s statement, “There was 3 pictures. Some people got into it. I’m not telling
on no body. I made sure nothing happened to him. I didn’t touch him or nothing. It was 5 black
people and 1 white dude. I was horseplaying with the dude but then it turned into them fighting.
I’m accepting what I did. I did not jump no body. I tackled him horseplaying with him. I did try
to get them off the man.” Relying on the Conduct Report, offender statement, and the IA
Investigation Report, the Hearing Officer determined that Wemer had violated Code A-100. The
Hearing Officer imposed the sanction because of the seriousness, frequency, and nature of the
offense, the offender’s attitude and demeanor during the hearing, the degree to which the
violation disrupted or endangered the security of the facility, and the likelihood of the sanction
having a corrective effect of the offender’s future behavior.
Wemer’s appeals were denied and he filed the present petition for a writ of habeas
Wemer challenges the disciplinary action against him arguing that the procedure for
identifying him as a Security Threat Group (“STG”) member was not followed, that the Hearing
Report was completed improperly, and that the evidence against him was insufficient. The
respondent contends that because Wemer did not raise the first two grounds in his administrative
appeals, those arguments are procedurally defaulted and that the evidence against Wemer was
1. Procedural Default
Wemer contends that Indiana Department of Correction (“IDOC”) policy governing
identification of STG members was not followed, that he is not and never has been officially
identified by IDOC as an STG member, and that the Hearing Report was not filled out properly.
The respondent argues that because he did not present these challenges in his internal appeals,
they are procedurally defaulted.
To obtain review of a claim for habeas relief, a prisoner must first exhaust his state
administrative remedies. Markham v. Clark, 978 F.2d 993, 995–96 (7th Cir. 1992); see 28 U.S.C.
§ 2254(b)(1)(A), (c). Exhaustion requires that the prisoner present each claim he seeks to raise in
his habeas petition at each level of the administrative appeals process. Markham, 978 F.2d at
995-96; see also O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). The prisoner must provide
sufficient information to put a reasonable prison official on notice as to the nature of his claim,
so that the prison officials are afforded an opportunity to correct any problems. See Moffat v.
Broyles, 288 F.3d 978, 982 (7th Cir. 2002). Failure to exhaust a claim results in a procedural
default that bars federal habeas relief. Id. at 981-82. It is undisputed that Wemer did not raise
these issues in his internal appeals. These challenges to his disciplinary proceeding in his appeals
are thus now defaulted.
2. Sufficiency of the Evidence
Wemer also challenges the sufficiency of the evidence against him. 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
here was constitutionally sufficient. See Henderson v. United States Parole Comm’n, 13 F.3d
1073, 1077 (7th Cir. 1993) (a federal habeas court “will overturn the [hearing officer’s] decision
only if no reasonable adjudicator could have found [the petitioner] guilty of the offense on the
basis of the evidence presented.”).
Here, Wemer was found guilty of violating Indiana Code Section 35-45-9-3, which
criminalizes actively participating in a criminal gang. The evidence against Wemer included the
Report of Conduct stating that Wemer was observed running and tackling an inmate while others
assaulted the inmate, Wemer’s statement that he “tackled him horseplaying with him,” and the
IA investigation. This is sufficient evidence to conclude that Wemer was participating in gang
activity in violation of state law. Whether or not Wemer is officially labelled as an STG member
by the IDOC, he can still be found to have participated in gang activity. Thus, this label does not
alter the sufficiency of the evidence analysis.
“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 Wemer to the relief he
seeks. Accordingly, Wemer’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.
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
BRANCHVILLE - CF
BRANCHVILLE CORRECTIONAL FACILITY
21390 Old State Road 37
BRANCHVILLE, IN 47514
Electronically registered counsel via electronic notification
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