GATES v. BUTTS

Filing 17

ORDER - Denying Petition for Writ of Habeas Corpus and Directing Entry of Final Judgment; Mr. Gates has failed to exhaust his state court remedies. He has not shown the existence of circumstances permitting him to overcome this hurdle, and hence is not entitled to the relief he seeks. His petition is therefore denied without prejudice. Judgment consistent with this Order shall now issue. Signed by Judge Sarah Evans Barker on 4/27/2018. (CKM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
STEVEN GATES,
Petitioner,
v.
KEITH BUTTS,
Respondent.

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No. 1:17-cv-01921-SEB-TAB

Order Denying Petition for Writ of Habeas Corpus
and Directing Entry of Final Judgment
The petition of Steven Gates for a writ of habeas corpus challenges Indiana Department of
Correction (IDOC) policy concerning the restoration of credit time previously taken away.
Specifically, he asserts that the change in policy violates the Ex Post Facto Clause. For the reasons
explained in this Order, Mr. Gates’s habeas petition must be denied without prejudice.
I.
A.

Background

IDOC’s Discretion to Restore 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
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 … good time credit of which a person is deprived under this section
may be restored.” Id. (emphasis added); 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 § 3550-6-5(c) (2008) (same).

The IDOC has established a policy for the relevant decisionmakers at each facility to follow
when restoring offenders’ previously deprived credit time. The Disciplinary Code for Adult
Offenders (DCAO) instructs facility decisionmakers on how to carry out the IDOC’s legislatively
conferred discretion. Two versions of the DCAO are relevant to this case, the 2012 version, dkt.
8-10, and the 2015 version, dkt. 8-11.
Under the 2012 version of the DCAO, the IDOC could exercise its discretion to restore
credit time based on an offender’s continued good behavior and based on an offender’s eligibility.
However, credit time lost as a result of a violation of offense A-100, among others, was not eligible
for restoration. Dkt. 8-10 at 45, § IX(E)(9)(c)(4). If the offender’s petition for restoration was
approved, then 25% of the original amount of the total lost credit time was restored. Id. at 46, §
IX(E)(9)(g). An offender could file another petition for restoration six months later and have
another 25% restored, if still eligible, and then another six months after that. Id. § IX(E)(9)(g)(2)–
(3). The IDOC, in its discretion, capped the maximum amount of credit time that could be restored
at 75% of the credit time originally lost by the offender. Id. § IX(E)(9)(g)(4).
Effective June 1, 2015, the IDOC altered the manner in which it restored credit time going
forward. See Dkt. 8-11. Under the 2015 version of the DCAO, the restoration of credit time is
still based on the offender’s good behavior, but several of the eligibility criteria have changed, see
id. at 45–46, § IX(E)(9)(a). The facility can restore up to 60 days of credit time upon approval of
the offender’s first petition. Id. at 48–49, § IX(E)(9)(g)(1). An offender can file a petition to
restore credit time every six months. Id. at 48, § IX(E)(9)(c). However, the maximum amount of
“deprived earned credit time” that can be restored is 50% of “the cumulative amount of restorable
earned credit time.” Id. at 49–50, § IX(E)(9)(g)(3). The 2015 policy is silent about whether time
lost as a result of Class A offense may be restored, and thus presumably permits it.

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B.

Loss of Earned Credit Time

On May 15, 2012, Mr. Gates was sentenced to 16 years’ imprisonment. During his current
commitment period, Mr. Gates has been the subject of multiple disciplinary proceedings, seven of
which have resulted in a deprivation of earned credit time:
Proceeding No.

Offense

IYC 12-12-0056
IYC 13-03-0158

B-236, disorderly conduct
B-207, possession of an electronic device
B-202, possession and/or use of a controlled
substance
B-212, assault/battery
B-202, possession and/or use of a controlled
substance
A-121, possession of a cell phone
A-100, violation of state law (IC § 35-42-2-1.5:
aggravated battery)

IYC 13-06-0021
IYC 13-06-0120
IYC 13-08-0041
IYC 14-02-0310
IYC 14-04-0028
Total

Loss of Earned
Credit Time
60 days
90 days
60 days
60 days
60 days
180 days
360 days
763 days

Cumulatively, Mr. Gates lost a total of 763 days of earned credit time.
C.

Restoration of Earned Credit Time

On September 5, 2015, Mr. Gates filed his first petition for restoration of time. The petition
was approved, and 60 days of earned credit time were given back per the 2015 policy.
Mr. Gates filed a second petition for restoration of time on March 5, 2016. That petition
was approved, and another 60 days of earned credit time were given back.
On September 5, 2016, Mr. Gates filed a third petition for restoration of time. That petition
was approved on September 9, 2016, and another 60 days of earned credit time were given back.
On March 5, 2017, Mr. Gates filed a fourth petition for restoration of time. The petition
was approved on March 9, 2017, but only 22 days were restored. Based on IDOC’s calculations,
the 22 days brought Mr. Gates’s total restored credit time to 202 days restored ((60 x 3) + 22 =

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202), which is 50% of the 403 days’ lost earned good-time credit they stated were eligible for
restoration.
It appears that the IDOC combined aspects of both the 2012 policy and 2015 policy when
calculating how lost earned credit time may be eligible for restoration. That is, following the 2012
policy, the IDOC declared that the 360 days he lost from the A-100 violation in 2014 was ineligible
to be restored. However, following the 2015 policy, he was eligible to have 50% of his earned
credit time restored, and not the 75% he would have been eligible to have restored under the 2012
policy.
Mr. Gates pursued a classification appeal shortly after, but that appeal was denied on March
20, 2017, on the ground that Mr. Gates had already reached the restoration cap of the 2015 version
of the DCAO, which applies to all petitions for restoration filed after June 1, 2015. Mr. Gates was
also informed that the DCAO prohibits any restoration of time from violations of offense A-100.
On June 9, 2017, Mr. Gates filed a petition for a writ of habeas corpus under 28 U.S.C.
§ 2254.
II.

Discussion

Mr. Gates asserts that the IDOC’s change in the manner of exercising its discretion violates
the Ex Post Facto Clause as applied to him and that he is thus entitled to have an additional 180
days of credit time restored. He asserts that prior to 2015, he was entitled to restoration of time
from his A-100 violation, but that after 2015, he is not.
The respondent first asserts that Mr. Gates has not exhausted his state court remedies
because Indiana courts will review claims challenging changes in IDOC policies relating to earned
credit time. The respondent next assert that even if Mr. Gates could overcome the procedural

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barrier and succeed on the merits of his ex post facto claim, which they do not concede, he would
be entitled to restoration of at most 100 days, and not the 180 days he seeks.
A federal district court may not grant habeas corpus relief unless “(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.A. § 2254(b)(1). Indiana courts have demonstrated that they
will adjudicate whether the retroactive application of earned credit time restoration provisions
violate the Constitution. In Young v. Indiana Dep’t of Correction, 22 N.E.3d 716, 719 (Ind. Ct.
App. 2014), the Indiana Court of Appeals held “that Section IX.E–9(d) of the DOC’s Disciplinary
Code for Adult Offenders, which limits restoration of credit time to credit time deprived during an
offender’s current sentence, does not violate the Equal Protection Clause of the Fourteenth
Amendment or Article 1, Section 23 of the Indiana Constitution as the policy applies to offenders
serving consecutive sentences.” Id. at 719. Young demonstrates Indiana courts will adjudicate the
ex post facto claim raised in this case.
The parties agree Mr. Gates has not presented this claim to the State courts and do not
dispute such an adjudication by Indiana courts would be effective as required by 28 U.S.C.A. §
2254(b)(1)(B)(ii).

Because the claim has not been presented to the Indiana courts, it is

unexhausted. Therefore habeas corpus relief is unavailable and this petition must be dismissed
without prejudice so that Mr. Gates can present it to the State courts.
When dismissing a habeas corpus petition because it is unexhausted, “[a] district court [is
required] to consider whether a stay is appropriate [because] the dismissal would effectively end
any chance at federal habeas review.” Dolis v. Chambers, 454 F.3d 721, 725 (7th Cir. 2006).
Here, because Mr. Gates is not challenging his state court conviction, the 1-year period of

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limitation in 28 U.S.C. § 2244(d) does not apply. See Cox v. McBride, 279 F.3d 492, 493 (7th Cir.
2002) (“[T]he custody he is challenging, as distinct from the custody that confers federal
jurisdiction, is the additional two years of prison that he must serve as the result of the ‘judgment’
not of a state court but of the prison disciplinary board.”). This means that dismissing this case
will not effectively end his chance at habeas corpus review because he will still have time to file a
new habeas corpus case (if necessary) after he finishes exhausting this claim by presenting it to
the Indiana Supreme Court. Therefore a stay would not be appropriate.
III.

Conclusion

“[H]abeas corpus has its own peculiar set of hurdles a petitioner must clear before his claim
is properly presented to the district court.” Keeney v. Tamayo-Reyes, 504 U.S. 1, 14 (1992)
(O’Connor, J., dissenting) (internal citations omitted). Mr. Gates has failed to exhaust his state
court remedies. He has not shown the existence of circumstances permitting him to overcome this
hurdle, and hence is not entitled to the relief he seeks. His petition is therefore denied without
prejudice. Judgment consistent with this Order shall now issue.
IT IS SO ORDERED.

Date:

4/27/2018

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

Distribution:
STEVEN GATES
962108
MIAMI - CF
MIAMI CORRECTIONAL FACILITY
Electronic Service Participant – Court Only
Aaron T. Craft
INDIANA ATTORNEY GENERAL
[e-mail]

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