STEPHENS v. ZATECKY

Filing 30

ENTRY - Denying Petition for Writ of Habeas Corpus and Motion for Summary Judgment and Directing Entry of Final Judgment; Mr. Stephens has failed to exhaust his state court remedies and has not shown the existence of circumstances permitting h im to overcome this hurdle. His petition is therefore denied without prejudice. Mr. Stephen's motion for summary judgment, filed on May 7, 2018, dkt. 27 , is denied as moot. Judgment consistent with this Order shall now issue. Signed by Judge Sarah Evans Barker on 5/21/2018. (CKM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JAMES STEPHENS,
Petitioner,
vs.
DUSHAN ZATECKY,
Respondent.

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No. 1:17-cv-00132-SEB-MJD

Entry Denying Petition for Writ of Habeas Corpus and Motion for Summary Judgment
and Directing Entry of Final Judgment
The petition of James Stephens for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
challenges the failure of the Indiana Department of Correction (“IDOC”) to restore good time
credits that were lost through several disciplinary proceedings. For the reasons explained in this
entry, Mr. Stephens’ habeas petition must be denied.
I. Disciplinary Background
A. Mr. Stephens’ loss of good-time credits
In November 1999, Mr. Stephens was convicted of three counts of Class B felony
burglary and sentenced to an aggregate term of 54 years’ imprisonment. Dkt. 14-2. Mr. Stephens
was sentenced to consecutive terms of 20 years, 20 years, and 14 years. Id.; dkt. 14-1 at p. 1. Due
to jail-time credit he received for the time he spent in jail prior to sentencing, his effective date of
sentencing (i.e., the date on which his first 20-year sentence began to run) was July 30, 1998.
Dkt. 14-1 at pp. 1-2. Mr. Stephens was placed on parole status for his first 20-year sentence on
March 5, 2010, and began serving his next 20-year term the following day, making his effective
date of sentencing for the second 20-year sentence March 6, 2010. Dkt. 14-1 at pp. 1, 3, 5, 7.
Assuming Mr. Stephens remains in his current credit class (credit class I) and neither loses nor

earns additional credit time, he will be placed on parole for his current 20-year sentence on June
11, 2020, and start serving his consecutive 14-year term the following day, which would make
his effective date of sentencing for the 14-year term June 12, 2020. Dkt. 14-1 at pp. 1, 5, 8.
Assuming Mr. Stephens remains in credit class I and neither loses nor earns additional time (nor
is convicted of another crime), he will be placed on parole for his 14-year term and released from
prison on June 12, 2027. Dkt. 14-1 at pp. 1, 8.
During his time in the IDOC, Mr. Stephens has been the subject of multiple disciplinary
proceedings in which he has lost good-time credit. Dkt. 14-1 at pp. 10–18. At least five of those
disciplinary proceedings are relevant to Mr. Stephens’ claim in this action.
On March 7, 2003, Mr. Stephens was charged in case ISR 03-03-0098 with violating
prison rules. Dkt. 14-1 at p. 19; dkt. 14-3 at pp. 9–11. He was found guilty at a disciplinary
hearing held on March 18, 2003, and sanctioned with a 45-day loss of earned credit time. Dkt.
14-1 at pp. 4, 20; dkt. 14-3 at p. 3.
On October 12, 2007, Mr. Stephens was charged in case ISR 07-10-0220 with violating
federal law. Dkt. 14-4 at p. 5. He was found guilty as charged at a disciplinary hearing held on
October 30, 2007, and sanctioned with a 730-day loss of earned credit time, a demotion to credit
class III, and an order to make restitution to the IRS. Dkt. 14-1 at pp. 21–22; dkt. 14-1 at p. 6.
On November 2, 2007, Mr. Stephens was charged in case ISR 07-11-0039 with
counterfeiting/forging documents based on phony documents he submitted to the hearing officer
in case ISR 07-10-0220. Dkt. 14-1 at p. 23; dkt. 14-5 at p. 8. Mr. Stephens was found guilty as
charged at a disciplinary hearing held on November 19, 2007, and sanctioned with a 180-day
loss of earned credit time. Dkt. 14-1 at pp. 4, 24; dkt. 14-5 at p. 7.

On November 20, 2007, Mr. Stephens was charged in case ISR 07-11-0216 with
attempted trafficking. Dkt. 14-1 at p. 25; dkt. 14-6 at p. 6. Mr. Stephens was found guilty at a
disciplinary hearing held on December 12, 2007, and sanctioned with one-year in disciplinary
segregation and a 730-day loss of earned credit time. Dkt. 14-1 at p. 26; dkt. 14-6 at p. 7. Mr.
Stephens’ credit-calculation records show that he instead was demoted to credit class II and lost
only 120 days’ good-time credit. Dkt. 14-1 at p. 3. 1
On April 16, 2010, Mr. Stephens was charged in case ISR 10-04-0174 with attempted
trafficking. Dkt. 14-1 at p. 27; dkt. 14-7 at pp. 5–6. Mr. Stephens was found guilty as charged at
a disciplinary hearing held on April 20, 2010, and sanctioned with a 30-day loss of earned credit
time and a demotion to credit class II. Dkt. 14-1 at pp. 6, 28; dkt. 14-7 at p. 3. This April 2010
discipline occurred after Mr. Stephens had started serving his second 20-year sentence, and so
the 30-day deduction occurred on that sentence.
Mr. Stephens lost a total of 1,105 days’ earned good-time credit from those five
disciplinary proceedings (45 + 730 + 180 + 120 + 30 = 1,105). Dkt. 14-1 at pp. at 3–4, 6.
On July 8, 2015, Mr. Stephens was found guilty of offense A-121, possession of a cell
phone, in case ISR 15-07-0008, based on an incident that occurred on July 1, 2015. Dkt. 14-1 at
pp. 10, 31, 32. Mr. Stephens was sanctioned with a written reprimand and six months in
disciplinary segregation. Id.
II. IDOC Policies Regarding Restoration of Credit Time
The Indiana legislature has given the IDOC discretion to restore any part of an offender’s
credit time that is revoked as a result of a disciplinary proceeding. See Ind. Code § 35-50-6-5(c)
(Supp. 2015); Campbell v. State, 714 N.E.2d 678, 683–84 (Ind. Ct. App. 1999), overruled in part
1

Mr. Stephens disputes that only 120 days were taken. The Court need not attempt to resolve this
discrepancy, however, because its ruling is not based on the various amounts of credit time lost or
restored.

on other grounds by Robinson v. State, 805 N.E.2d 783, 791 (Ind. 2004). Specifically, the statute
provides that “[a]ny part of the educational credit or good time credit of which a person is
deprived under this section may be restored.” Ind. Code § 35-50-6-5(c) (Supp. 2015); accord
Ind. Code § 35-50-6-5(c) (2014) (“Any part of the credit time of which a person is deprived
under this section may be restored.”); Ind. Code § 35-50-6-5(c) (2008) (same); Ind. Code § 3550-6-5(c) (1998) (same).
The IDOC has established a policy for the relevant decision-makers at each facility to
follow when restoring offenders’ previously deprived credit time. The Disciplinary Code for
Adult Offenders (“DCAO”) instructs facility decision-makers on how to carry out the IDOC’s
legislatively conferred discretion. It is sufficient to note that the DCAO has been modified over
the years. Mr. Stephens argues that the 2015 DCAO policy was retroactively applied to his losses
of credit time that occurred in 2003, 2007, and 2010.
The IDOC most recently reissued the DCAO, effective June 1, 2015, to clarify some of
the provisions concerning the restoration of credit time. Dkt. 14-14 at 45–52, § IX(E)(9). This is
the current version of the DCAO. http://www.in.gov/idoc/3265.htm (policy 02-04-101). The
current policy clarifies that an offender is ineligible for restoration of credit time if he is found
guilty of violating one or more of several A-level offenses, including offense A-121 (possession
of a cell phone), after June 1, 2015, the effective date of the current policy. Id. at 46–47, §
IX(E)(9)(a)(3). Under the current policy, the credit time requested to be restored must have been
deprived “while serving the current commitment period, active sentences only,” and the total
maximum amount that can be restored is 50% of “the cumulative amount of restorable earned
credit time.” Id. at 48, § IX(E)(9)(d).

III. Prior Proceedings
As noted, Mr. Stephens lost a total of 1,105 days’ earned good-time credit from the five
disciplinary proceedings he listed in his petition. In March 2009, Mr. Stephens filed a petition for
restoration of previously deprived credit time. That petition was granted and 57 days of goodtime credit were restored. Dkt. 14-1 at p. 3; dkt. 14-8. Mr. Stephens filed another petition for
restoration in May 2011, which was approved, thus restoring eight days, or 25%, of the 30 days
he had lost in case ISR 10-04-0174 in April 2010. Dkt. 14-1 at p. 6; dkt. 14-15. Therefore, a total
of 65 of those days have been restored.
On July 24, 2016, Mr. Stephens filed another petition for restoration. Dkt. 1-1 at p. 2. His
petition was denied on July 26, 2016, on the ground that Mr. Stephens is ineligible for restoration
of credit time under the June 2015 DCAO because he was found guilty on July 8, 2015, of
offense A-121. Dkt. 1-1 at pp. 1–2; dkt. 14-14 DCAO at pp. 46–47, § IX(E)(9)(a)(3)(h).
On September 6, 2016, Mr. Stephens brought a habeas petition under 28 U.S.C. § 2254 in
No. 1:16-cv-2384-RLY-MPB. In that petition, Mr. Stephens sought restoration of the credit time
he lost in the same prison discipline cases he discusses here: ISR 03-03-0098, ISR 07-10-0220,
ISR 07-11-0039, ISR 07-11-0216, and ISR 10-04-0174. Dkt. 14-16 at pp. 1, 15. He claimed that
his due process rights were violated because he had a liberty interest in the restoration of the
credit time he lost and that changes in the 2015 version of the DCAO unlawfully deprived him of
that interest. Id. at pp. 5–6. On September 13, 2016, the Court denied Mr. Stephens’ petition on
the ground that Mr. Stephens did not have a protected liberty interest in the restoration of
previously earned good-time credits. Dkt. 14-17. On April 19, 2017, in response to a motion
filed by Mr. Stephens, the Court clarified that the final judgment entered on September 13, 2016,
was an adjudication on the merits. Dkt. 14-20.

On January 12, 2017, Mr. Stephens filed this habeas petition. Again, he seeks restoration
of the credit time he lost in discipline cases ISR 03-03-0098, ISR 07-10-0220, ISR 07-11-0039,
ISR 07-11-0216, and ISR 10-04-0174. Dkt. 1. This time, rather than allege a violation of his due
process rights, he asserts that the application of the June 2015 DCAO to render him ineligible for
restoration of any credit time violates the Ex Post Facto Clause. Id.
IV. Discussion
As noted, Mr. Stephens claims that he is entitled to habeas relief because the June 2015
version of the DCAO, under which he is ineligible for restoration of any credit time by virtue of
his July 2015 disciplinary conviction for offense A-121 (possession of a cell phone), violates the
Ex Post Facto Clause. Dkt. 1 at 3–5; dkt. 29 at 2.
The respondent responds that Mr. Stephens’ habeas petition is barred for three reasons: 1)
failure to exhaust; 2) res judicata; and 3) his ex post facto claim lacks merit. The Court need only
discuss the first defense of exhaustion.
Habeas petitioners must exhaust their available state court remedies before coming to
federal court.
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted unless it appears
that-(A) the applicant has exhausted the remedies available in the courts of the State;
or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of
the applicant.
28 U.S.C. § 2254(b)(1).
Mr. Stephens asserts that prison disciplinary sanctions are not subject to judicial review
and so he need not exhaust. Mr. Stephens is only partially correct. Disciplinary sanctions are not
subject to judicial review in Indiana. See Blanck v. Ind. Dept. of Corr., 829 N.E.2d 505 (Ind.

2005). This habeas petition, however, does not challenge any particular disciplinary action.
Rather, Mr. Stephens alleges that the application of IDOC policies relating to the restoration of
some of his good time credit violates the Constitution.
In Young v. Ind. Dept. of Corr., 22 N.E.3d 716 (Ind. Ct. App. 2014), the Indiana Court of
Appeals reviewed an Indiana state court decision in an inmate’s challenge to the constitutionality
of the IDOC’s policy concerning the restoration of credit time. As the Northern District of
Indiana ruled in Lashbrook v. Superintendent, No. 3:17-cv-184-JD, 2017 WL 4683197 (N.D.
Ind. Oct. 18, 2017), the Young case “demonstrates Indiana courts will adjudicate the ex post
facto claim raised in this case.” Id. This Court agrees and finds that Mr. Stephens has failed to
present his claim to the State courts. Therefore, habeas relief is not available here.
When a district court dismisses a habeas corpus petition for lack of exhaustion, it must
“consider whether a stay is appropriate [when] the dismissal would effectively end any chance at
federal habeas review.” Dolis v. Chambers, 454 F.3d 721, 725 (7th Cir. 2006). Here, Mr.
Stephens is not challenging his state court conviction, so the one-year statute of limitations in 28
U.S.C. § 2244(d) does not apply. See Cox v. McBride, 279 F.3d 492, 493 (7th Cir. 2002).
Because Mr. Stephens may still file a habeas corpus action after he presents his claim to the
Indiana courts, a stay is not appropriate.
V. Conclusion
Mr. Stephens has failed to exhaust his state court remedies and has not shown the
existence of circumstances permitting him to overcome this hurdle. His petition is therefore

denied without prejudice. Mr. Stephen’s motion for summary judgment, filed on May 7, 2018,
dkt. [27], is denied as moot. Judgment consistent with this Order shall now issue.
IT IS SO ORDERED.
5/21/2018
Date: _________________

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Distribution:
JAMES STEPHENS
996056
PUTNAMVILLE - CF
PUTNAMVILLE CORRECTIONAL FACILITY
Electronic Service Participant – Court Only
Aaron T. Craft
INDIANA ATTORNEY GENERAL
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