ROSE v. WARDEN

Filing 9

ORDER Denying Petition for Writ of Habeas Corpus and Directing Entry of Final Judgment - The petition of Donnie A. Rose for a writ of habeas corpus challenges a prison disciplinary proceeding identified as No. JCU 17-08-0009. For the reasons exp lained in this Order, Mr. Rose's habeas petition must be denied. Accordingly, Mr. Rose's petition for a writ of habeas corpus must be denied and the action dismissed. Judgment consistent with this Order shall now issue (SEE ORDER FOR ADDITIONAL INFORMATION). Signed by Judge James R. Sweeney II on 10/25/2018. Copy to Petitioner via US Mail. (DWH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DONNIE A. ROSE,
Petitioner,
v.
WARDEN,
Respondent.

)
)
)
)
)
)
)
)
)

No. 1:18-cv-00409-JRS-DML

Order Denying Petition for Writ of Habeas Corpus and
Directing Entry of Final Judgment
The petition of Donnie A. Rose for a writ of habeas corpus challenges a prison disciplinary
proceeding identified as No. JCU 17-08-0009. For the reasons explained in this Order, Mr. Rose’s
habeas petition must be denied.
A.

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).

B.

The Disciplinary Proceeding

On August 11, 2017, Officer Tetrick wrote a Conduct Report charging Mr. Rose with B202, possession of a controlled substance. Dkt. 7-1. The Conduct Report states:
On 8/11/2017 at 1530 hour’s [sic] I Ofc. Tetrick, Sgt. Jeter, and Lt. Lane were out
in building 643 patting down offenders as they came in from crew. When crew 27
came back in Sgt. Jeter was doing a strip search on offender Rose, Donnie
DOC#160366 when he noticed a lump on the inner lining of the boot[;] Sgt. Jeter
was trying to find the opening to where the package was shoved into the inner lining
of the boot, and was unable to locate it. Lt. Lane sent Sgt. Jeter to go get a pair of
scissors to cut open the inner lining of the boot to further inspect what was inside
the lining of the boot. While Sgt. Jeter was getting scissors Lt. Lane and myself
Ofc. Tetrick kept inspecting the boot. Lt. Lane had his hand inside the boot
continuing to look for a hole in the inner lining of the boot when Lt. Lane and
myself Ofc. Tetrick saw two peach colored pills the [sic] read V3605 fall out of the
boot before Sgt. Jeter had returned with the scissors. I Ofc. Tetrick immediately
picked up both pills and put them in a glove and gave them to Sgt. Jeter. Sgt. Jeter
took the pills to medical and had the nurses look at them to verify what they actually
were. Medical verified both pills as Hydrocodone (325mg), and stated that wasn’t
anything we carried on center. This puts offender Rose, Donnie DOC#160366 in
violation of a Class B Offense 202—Possession or use of controlled substance.
Dkt. 7-1. Lt. Lane and Stephen Jeter also prepared Incident Reports regarding the same incident.
Dkt. 7-2; Dkt. 7-3. The two tablets were confiscated, visually verified to be Hydrocodone, and
sent to the evidence locker. Dkt. 7-4.
Mr. Rose was notified of the charge on August 11, 2017, when he received the Screening
Report. Dkt. 7-5. He pleaded not guilty to the charge, requested a lay advocate, and did not request
any witnesses or physical evidence. Id. A lay advocate was later appointed. Dkt. 7-6.
The prison disciplinary hearing was held on August 25, 2017. According to the notes from
the hearing, Mr. Rose stated, “I just got the boots that Sunday. I wore them about a week.” Dkt.
7-7. Based on the staff reports and Mr. Rose’s statement, the hearing officer found Mr. Rose guilty
of B-202, possession of a controlled substance, because there was nothing disputing the charge on

2

the conduct report. The sanctions imposed included ninety days of earned-credit-time deprivation
and a credit class demotion.
Mr. Rose 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.
C.

Analysis

In his petition, Mr. Rose asserts three grounds to challenge his prison disciplinary
conviction: (1) denial of exculpatory evidence; (2) due process violation due to incorrect case
numbers on various forms; and (3) the boots he was issued were not compliant with IDOC policy.
Dkt. 1. The respondent has construed Mr. Rose’s third ground to be a challenge to the sufficiency
of the evidence, and the Court will do so as well. The respondent argues that Mr. Rose’s due
process rights were not violated, typographical errors in a case number do not violate due process,
and there is “some evidence” supporting the hearing officer’s finding of guilt. Dkt. 7. Mr. Rose
did not file a reply, and the time to do so has passed.
1.

Denial of Evidence

Mr. Rose first asserts that, in violation of IDOC policy, Officer Tetrick failed to itemize all
of the collected evidence in the conduct report and failed to include Lt. Lane’s witness statement
in the conduct report. Dkt. 1 at 2, 4.
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

3

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
review.”); see also Estelle v. McGuire, 502 U.S. 62, 68 n.2 (1991) (“[S]tate-law violations provide
no basis for federal habeas review.”).
Mr. Rose next asserts that he failed to receive Lt. Lane’s witness statement at screening,
which was a clear violation of his due process rights because he is entitled to all exculpatory
evidence. Dkt. 1 at 2.
Due process requires “prison officials to disclose all material exculpatory evidence,” unless
that evidence “would unduly threaten institutional concerns.” Jones v. Cross, 637 F.3d 841, 847
(7th Cir. 2011) (citation and quotation marks omitted). In the prison disciplinary context, “the
purpose of the [this] rule is to insure that the disciplinary board considers all of the evidence
relevant to guilt or innocence and to enable the prisoner to present his or her best defense.” Id.
(citation and quotation marks omitted). Evidence is exculpatory if it undermines or contradicts
the finding of guilty, see id., and it is material if disclosing it creates a “reasonable probability” of
a different result, Toliver v. McCaughtry, 539 F.3d 766, 780-81 (7th Cir. 2008).
As an initial matter, Mr. Rose did not request any physical evidence in this disciplinary
matter. Mr. Rose was given an opportunity to request evidence when he was screened on August
11, 2017, but he declined to request any evidence or call any witnesses. See dkt. 7-5. The hearing

4

report also reflects that he did not request any evidence during the hearing – his statement only
relates to the sufficiency of the evidence. See dkt. 7-7.
Even if prison officials unjustifiably deny a timely evidentiary request, federal habeas relief
is available only if the denial resulted in prejudice (i.e., was not harmless). Jones, 637 F.3d at
847–48; see also Davis v. Ayala, 135 S. Ct. 2187, 2197–98 (2015). Mr. Rose fails to explain how
Lt. Lane’s statement, dkt. 7-2, is exculpatory. Rather, Lt. Lane’s statement is fully consistent with
Officer Tetrick’s conduct report and is not exculpatory. Thus, Mr. Rose was not prejudiced by
any alleged denial. Accordingly, Mr. Rose is not entitled to habeas relief on the ground of denial
of evidence.
2.

Incorrect Case Numbers

Mr. Rose next asserts that his right to due process was violated because incorrect case
numbers appeared on various forms. Mr. Rose states that the case number on his conduct report
and screening report list the case number as JCU-17-08-0007, but that the disciplinary hearing
report, notice to lay advocate/witness, and the final reviewing authority response list the case
number as JCU-17-08-0009. The court reproduces the case numbers from the various relevant
documents:

Conduct Report (Dkt. 7-1)

Notice to Lay Advocate
(Dkt. 7-6)

Hearing Report
(Dkt. 7-7)

Screening (Dkt. 7-5)

Final Reviewing Authority
(Dkt. 7-9)

It appears that the screening report was marked with a screening number that could be construed
as JCU-17-08-0007. However, it could also be construed as JCU-17-08-0009. The conduct report
potentially bore the case number of JCU-17-08-0007 but appears to have been corrected to reflect

5

the correct case number of JCU-17-08-0009. Regardless, these errors are minor in nature.
Moreover, there is no due process right associated with minor errors to the case number on a
Conduct Report or Screening Report. See Wolff, 418 U.S. at 563-71; Hill, 472 U.S. at 454-57.
There is no basis to conclude that Mr. Rose was prejudiced by these typographical errors. Thus,
Mr. Rose is not entitled to habeas relief on this ground. See Estelle, 502 U.S. at 67-68 (habeas
relief is only available for a violation of the U.S. Constitution or other federal laws).
3.

Sufficiency of the Evidence

Mr. Rose also asserts that the boots he was provided were not in accordance with IDOC
policy. However, habeas relief is unavailable on this ground, as explained above, because claims
based on IDOC policy are not cognizable. Moreover, 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 undisputed record reflects that Mr. Rose failed to timely exhaust his
available administrative remedies on the grounds that the boots were not in accordance with IDOC
policy before filing this action (see dkt. 7-8), habeas relief is not available to Mr. Rose on this
ground.
Because the respondent has construed Mr. Rose to be challenging the sufficiency of the
evidence, the Court will address 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

6

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 B-202 is entitled “Possession or Use of Controlled
Substance,” and is defined as “[p]ossession or use of any unauthorized substance controlled
pursuant to the laws of the State of Indiana or the United States Code or possession of drug
paraphernalia.”

Indiana Department of Correction Adult Disciplinary Process, Appendix I:

Offenses, available at http://www.in.gov/idoc/files/02-04-101_APPENDIX_I-OFFENSES_6-12015(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.
Here, Officer Tetrick and Lt. Lane found two Hydrocodone pills in a lump in the inner
lining of Mr. Rose’s boot. The Hydrocodone pills were visually verified by the officers and the
medical staff.

7

Under the IDOC definitions, there is sufficient evidence to find that Mr. Rose possessed
the Hydrocodone pills which were found under his direct control inside his boot. Moreover, that
Mr. Rose had only had the boots for a week or two does not negate the fact that Mr. Rose possessed
the drugs in his boot at the time of the search. Thus, Mr. Rose’s challenge to the sufficiency of
the evidence must be rejected because, under Ellison, there is “some evidence” to support the
hearing officer’s decision.
D.

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. Rose to the relief he seeks.
Accordingly, Mr. Rose’s petition for a writ of habeas corpus must be denied and the action
dismissed.
Judgment consistent with this Order shall now issue.
IT IS SO ORDERED.
Date:

10/25/18

Distribution:
DONNIE A. ROSE
160366
PLAINFIELD - CF
PLAINFIELD CORRECTIONAL FACILITY
Inmate Mail/Parcels
727 MOON ROAD
PLAINFIELD, IN 46168
Aaron T. Craft
INDIANA ATTORNEY GENERAL
[e-mail]

8