QUERRY v. SUPERINTENDENT

Filing 10

ORDER - Mr. Querry's Petition for Writ of Habeas Corpus must be DENIED and the action DISMISSED. Judgment consistent with this Order shall now issue. See order for details. Signed by Judge Tanya Walton Pratt on 2/15/2018. (Copy mailed to Petitioner) (MEJ)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
SHANE QUERRY,
Petitioner,
v.
SUPERINTENDENT,
Respondent.

)
)
)
)
)
)
)
)
)

Case No. 1:17-cv-02709-TWP-MJD

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
AND DIRECTING ENTRY OF FINAL JUDGMENT
This matter is before the Court on the Petition for Writ of Habeas Corpus filed by Shane
Querry (“Mr. Querry”) which challenges a prison disciplinary proceeding identified as No. IYC
17-01-0186. For the reasons explained in this Order, Mr. Querry’s habeas petition must be denied.
I.

OVERVIEW

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).

II.

THE DISCIPLINARY PROCEEDING

On January 20, 2017, Sergeant T. Andis wrote a Report of Conduct charging Mr. Querry
with a violation of Code A-106, possession of a dangerous weapon. The Report of Conduct states:
On, 01-20-2017 at approximately 1:45 PM I, Sergeant T. Andis was conducting a
search of HUW M-33L. During the search I located a homemade pointed edge
weapon. A further search produced no contraband. The items were secured[,]
photographed and logged into I&I evidence. Offender Querry, Shane #943517 &
Offender Ward, Kevin #925824 are both assigned to the cell during the search.
[Dkt] 1-1 at 8; [Dkt] 9-1.
Mr. Querry was also provided with a Notice of Confiscated Property that, among other
items, identified a “Pointed edge weapon” and listed “Unauthorized-106” for the reason of
confiscation. [Dkt] 1-1 at 9; [Dkt] 9-2.
Mr. Querry was notified of the charge on January 25, 2017, when he received the Screening
Report. He pled not guilty to the charge and did not request a lay advocate. [Dkt] 1-1 at 13; [Dkt]
9-4. He requested to call Officer Fugate as a witness to ask him two questions: (1) “did the item
look like the other find [sic] prior” and (2) “what did I.I. state to you in regards to the event prior.”
He also requested video review of the shakedown and photos. In response to Mr. Querry’s two
questions, Officer Fugate responded: (1) “The weapon I found was made in the same way as the
one Sergeant Andis had found. The only difference I noticed was the shape of the magnet attached
to the shaft” and (2) “Nice find, Good job”. [Dkt] 1-1 at 11; [Dkt] 9-5.
The hearing officer viewed the video evidence and completed a summary of the video,
which states:
On 1/31/2017 I DHO L. Glenn did review video requested by offender Querry,
Shane #943517 of an incident that took place on 1/20/2017 in HUW cell 33. On
camera HUW M Unit Dayroom on 1/20/2017 at 1:30:31 pm Sgt. T. Andis walks
up to the door of cell 33 in HUW M unit and unlocks the door then enters the cell
and goes out of the view of the camera. At 1:48:53 pm Sgt. Andis is observed on
camera again exiting cell 33 and secures the door behind him.
2

[Dkt] 1-1 at 12; [Dkt] 9-7.
The prison Disciplinary Hearing was held on February 4, 2017. According to the notes
from the hearing, Mr. Querry stated:
The last one they found I told them in screening that I would plead guilty because
my bunky only had 47 days left. Screening told me that I could tell DHB about it
but I didn’t get to say anything. Because Gagnon already had me sanctioned when
he came to talk to me at medical. Andis told me he found this one in a heater vent.
Fugate told me the first one was rusted and old and there were affiliates in there
before me.
Dkts. 1-1 at 7; 9-6. Based on the staff reports, Mr. Querry’s statement, Officer Fugate’s statement,
the photograph of the confiscated items, the confiscation slip and the video review, the hearing
officer found Mr. Querry guilty of possession of a deadly or dangerous weapon. The sanctions
imposed included eighty-two (82) days earned-credit-time deprivation.
Mr. Querry appealed to the Facility Head and the Indiana Department of Correction
(“IDOC”) Final Reviewing Authority, both of which were denied. He then brought this Petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
III.

ANALYSIS

In his Petition, Mr. Querry lists three grounds on which he challenges his prison
disciplinary conviction: (1) the definition of “possession”; (2) a violation of IDOC policy
regarding his credit classification (citing to VII.A.1); and (3) untimeliness of the screening in
violation of IDOC policy (citing to VIII.A.2). The Respondent notes that Mr. Querry did not
exhaust his administrative remedies as to some of his grounds for habeas relief. The Respondent
further argues that violations of IDOC policy are not grounds for habeas relief and the finding of
guilty was supported by “some evidence”. Mr. Querry did not file a reply brief and the time to do
so has passed.

3

A.

Exhaustion of Administrative Appeals and Violation of IDOC policy
In Indiana, only the issues raised in a timely appeal to the Facility Head and then to the

IDOC Appeals Review Officer or Final Reviewing Authority may be raised in a subsequent
petition for writ of habeas corpus. See 28 U.S.C. § 2254(b)(1)(A); Eads v. Hanks, 280 F.3d 728,
729 (7th Cir. 2002); Moffat v. Broyles, 288 F.3d 978, 981 (7th Cir. 2002). The Respondent argues
that Mr. Querry failed to exhaust the administrative appeals process as to his second and third
grounds regarding violations of IDOC policy, and because the time to complete such
administrative appeals process has passed, no relief can be given under the habeas corpus doctrine.
The undisputed record reflects that he failed to timely exhaust his available administrative
remedies before filing this action.
Even had Mr. Querry timely appealed his second and third grounds, Mr. Querry would not
have been entitled to relief. Relief pursuant to § 2254 is available only on the ground that a prisoner
“is being held in violation of federal law or the U.S. Constitution.” Caffey v. Butler, 802 F.3d 884,
894 (7th Cir. 2015). Prison policies, regulations, or guidelines do not constitute federal law;
instead, they are “primarily designed to guide correctional officials in the administration of a prison
. . . not . . . to confer rights on inmates.” Sandin v. Conner, 515 U.S. 472, 481-82 (1995).
Therefore, claims based on prison policy, such as the one at issue here, are not cognizable and do
not form a basis for habeas relief. See Keller v. Donahue, 271 Fed. Appx. 531, 532 (7th Cir. 2008)
(rejecting challenges to a prison disciplinary proceeding because, “[i]nstead of addressing any
potential constitutional defect, all of [the petitioner’s] arguments relate to alleged departures from
procedures outlined in the prison handbook that have no bearing on his right to due process”);
Rivera v. Davis, 50 Fed. Appx. 779, 780 (7th Cir. 2002) (“A prison’s noncompliance with its
internal regulations has no constitutional import—and nothing less warrants habeas corpus

4

review.”); see also Estelle v. McGuire, 502 U.S. 62, 68 at n.2 (1991) (“[S]tate-law violations
provide no basis for federal habeas review.”).
Accordingly, Mr. Querry is not entitled to relief on his claims regarding IDOC policies or
violations thereof.
B.

Sufficiency of the Evidence
Mr. Querry argues that his procedural due process was violated, citing simply “Definition

‘possession.” [sic] [Dkt] 1 at 2. The Respondent interprets Mr. Querry’s claim to challenge the
sufficiency of the evidence.
Challenges to the sufficiency of the evidence are governed by the “some evidence”
standard. “[A] hearing officer’s decision need only rest on ‘some evidence’ logically supporting
it and demonstrating that the result is not arbitrary.” Ellison v. Zatecky, 820 F.3d 271, 274 (7th
Cir. 2016); see Eichwedel v. Chandler, 696 F.3d 660, 675 (7th Cir. 2012) (“The some evidence
standard . . . is satisfied if there is any evidence in the record that could support the conclusion
reached by the disciplinary board.”) (citation and quotation marks omitted). The “some evidence”
standard is much more lenient than the “beyond a reasonable doubt” standard. Moffat v. Broyles,
288 F.3d 978, 981 (7th Cir. 2002). “[T]he relevant question is whether there is any evidence in
the record that could support the conclusion reached by the disciplinary board.” Hill, 472 U.S. at
455-56.
The Adult Disciplinary Code Section A-106 is entitled “Possession of Dangerous/Deadly
Contraband/Property,” and is defined as “[p]ossession or use of any explosive, ammunition,
hazardous chemical (e.g., acids or corrosive agents) or dangerous or deadly weapon.” Indiana
Department of Correction Adult Disciplinary Process, Appendix I: Offenses, available at

5

http://www.in.gov/idoc/files/02-04-101_APPENDIX_I-OFFENSES_6-1-2015(1).pdf. Possession
is defined as:
On one’s person, in one’s quarters, in one’s locker or under one’s physical control.
For the purposes of these procedures, offenders are presumed to be responsible for
any property, prohibited property or contraband that is located on their person,
within their cell or within areas of their housing, work, educational or vocational
assignment that are under their control. Areas under an offender’s control include,
but are not limited to: the door track, window ledge, ventilation unit, plumbing and
the offender’s desk, cabinet/locker, shelving, storage area, bed and bedding
materials in his/her housing assignment and the desk, cubicle, work station and
locker in his/her work, educational or vocational assignment.
Indiana Department of Correction, The Disciplinary Code for Adult Offenders at 5, available at
http://www.in.gov/idoc/files/02-04-101_The_Disciplinary_Code_for_Adult_Offenders___6-12015.pdf.
In this case, the fact that the weapon was found in Mr. Querry’s cell is enough evidence to
allow the Hearing Officer to conclude that he was in “possession” of the weapon. Hamilton v.
O’Leary, 976 F.2d 341, 345 (7th Cir. 1992) (holding that evidence showing a twenty-five percent
chance of guilt constitutes “some evidence” under the circumstances). That the weapon looked
similar to a prior weapon found in the same cell, that it was found inside of the heater vent of his
cell, and that it was rusted and appeared to have been there for a while does not show that the
decision was unreliable. 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)). Thus, Mr. Querry’s challenge to the sufficiency of the

6

evidence must be rejected because, under Ellison, there is “some evidence” to support the hearing
officer’s decision.
IV.

CONCLUSION

“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. Querry to the relief he seeks.
Accordingly, Mr. Querry’s Petition for Writ of Habeas Corpus must be DENIED and the action
DISMISSED.
Judgment consistent with this Order shall now issue.
SO ORDERED.
Date: 2/15/2018

DISTRIBUTION:
Shane Querry, #943517
PLAINFIELD CORRECTIONAL FACILITY
Inmate Mail/Parcels
727 Moon Road
Plainfield, Indiana 46168
David Corey
INDIANA ATTORNEY GENERAL
[e-mail]

7