HOVIS v. BASINGER

Filing 21

ENTRY Discussing Amended Petition for Writ of Habeas Corpus; 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 Hovis to the relief he seeks, even apart from his unexcused procedural default. Accordingly, Hovis' petition for a writ of habeas corpus must be denied and the action dismissed. Judgment consistent with this Entry shall now issue. Signed by Judge Jane Magnus-Stinson on 5/10/2011.(NKD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

CHRISTOPHER HOVIS,
Petitioner,
v.
JAMES BASINGER,
Respondent.

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No. 2:10-cv-232-JMS-TAB

Entry Discussing Amended Petition for Writ of Habeas Corpus
In a prison disciplinary proceeding identified as No. ISR 07-10-0297, Christopher
Hovis was found guilty of a Class A 100 offense, violation of any state law. The specific
conduct associated with this violation was the filing of false or fraudulent tax documents.
Hovis’ amended petition for writ of habeas corpus challenging this proceeding must be
denied. The court reaches this conclusion because no review is permitted as to the
claim(s) not fully presented in the course of an administrative appeal. Eads v. Hanks, 280
F.3d 728, 729 (7th Cir. 2002). Hovis contends that he did submit an appeal to the Final
Reviewing Authority, but the expanded record shows otherwise.
The foregoing circumstances establish Hovis’ procedural default. Resnover v.
Pearson, 965 F.2d 1453, 1458 (7th Cir. 1992) (procedural default "occurs when a claim
could have been but was not presented to the state court and cannot, at the time that the
federal court reviews the habeas petition, be presented to the state court."). Hovis could
overcome the consequence of this default–which is to preclude review of the merits of his
claims–by “demonstrat[ing] either (a) cause for the default and prejudice (i.e., the errors
worked to the petitioner's ‘actual and substantial disadvantage,’); or (b) that failure to
consider his claim would result in a fundamental miscarriage of justice (i.e., a claim of
actual innocence).” Conner v. McBride, 375 F.3d at 649 (internal citations omitted). “Cause”
for a procedural default exists if the petitioner can demonstrate that “some objective factor
external to the defense impeded counsel’s efforts to comply with the State’s procedural
rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Prejudice is demonstrated by showing
that the errors worked to the petitioner’s “actual and substantial disadvantage.” United
States v. Frady, 456 U.S. 152, 170 (1982). He has not done so.
Even if the court concluded otherwise concerning either the occurrence of
procedural default or the possibility of overcoming that default, moreover, Hovis would not
be entitled to relief. Due process in this setting requires the issuance of advance written
notice of the charges, a limited opportunity to present evidence to an impartial decisionmaker, 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. See
Superintend., Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985); Wolff v. McDonnell, 418
U.S. 539, 564, 566, 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). Here, the pleadings and the

expanded record show that the decision of the hearing officer was supported by the
constitutionally sufficient “some evidence.” The pleadings and the expanded record also
show that the procedural protections required by Wolff were provided. The challenged
disciplinary proceeding, therefore, is not tainted by procedural error.
"The touchstone of due process is protection of the individual against arbitrary action
of the government." Id., 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 Hovis to the relief he
seeks, even apart from his unexcused procedural default. Accordingly, Hovis’ 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.

Date: 05/10/2011
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana