WOLFE v. SMITH
Filing
24
ORDER Denying Petition for Writ of Habeas Corpus and Directing Entry of Final Judgment. 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 wa s no constitutional infirmity in the proceeding which entitles Mr. Wolfe to the relief he seeks. Accordingly, Mr. Wolfe's petition for a writ of habeas corpus must be denied and the action dismissed. Signed by Judge William T. Lawrence on 6/28/2018. (MAC)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
GREGORY WOLFE,
Petitioner,
vs.
BRIAN SMITH,
Respondent.
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No. 2:17-cv-00317-WTL-MJD
Entry Denying Petition for Writ of Habeas Corpus and Directing Entry of Final Judgment
The petition of Gregory Wolfe for a writ of habeas corpus challenges a prison
disciplinary proceeding identified as No. ISR 17-02-0092. For the reasons explained in this
Entry, Mr. Wolfe’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 February 3, 2017, Officer A. Long wrote a conduct report charging Mr. Wolfe with
A-121, possession of a cellular device. The conduct report states:
On 2-3-17 [at] approximately 700 pm I A Long was conducting a search of
Offender Wolfe Gregory #238354 Bed Area[.] While searching I found a Black
AT&T cellphone and cellphone charger in a book underneath the beds of OSD 233 and 2-34.
The report also indicates: “Placed in DHB room for evidence.”
Wolfe was notified of the charge and was served with a copy of the screening report on
February 22, 2017. The report indicates he was unable to sign, apparently because he was in a
restricted housing cell. Mr. Wolfe was notified of his rights and pleaded not guilty. He requested
a lay advocate and one was appointed on March 13, 2017. He requested one witness, Gary Gray,
and he requested a “video review.” Gray provided a written statement, “I know nothing about
this incident.” The disciplinary hearing officer (“DHO”) reviewed the video from February 3,
2017, and completed a written video evidence review that stated: “On 2.3.17 at approximately
1900 your (Wolfe, Gregory #238354) housing unit can be seen being searched.”
After four postponements, a disciplinary hearing was held in case ISR 17-02-0092 on
March 13, 2017. Mr. Wolfe pleaded not guilty and provided the following statement: “It wasn’t
mine. I had just got to that camp.” The DHO found Mr. Wolfe guilty of possession of cellular
device. The DHO considered the staff report and Mr. Wolfe’s statement. The reasons for the
DHO’s decision was “H/O finds conduct to be true and factual.” Due to the likelihood of
sanction having a corrective effect on Mr. Wolfe’s future behavior, the DHO imposed the
following sanctions: a written reprimand, 30-day loss of jpay privileges, a suspended 180-day
loss of ECT, and demotion in credit class from class 1 to class 2.
Mr. Wolfe appealed the disciplinary action to the Superintendent on March 14, 2017. The
appeal was denied on March 27, 2017. Mr. Wolfe then appealed to the final reviewing authority
for the DOC on April 10, 2017, and the reviewing authority denied his appeal on April 20, 2017.
C.
Analysis
Mr. Wolfe challenges the disciplinary action against him arguing that he was denied
video evidence, that the evidence was insufficient to sustain his conviction, and that he was
denied a lay advocate.
1. Denial of Evidence
Mr. Wolfe argues that he was denied his request for a video review of the day of the
search. The respondent argues that this claim is procedurally defaulted and he therefore cannot
raise it now.
In Indiana, only the issues raised in a timely appeal to the Facility Head and then to the
Indiana Department of Correction 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. Wolfe failed to exhaust the administrative appeals
process, and because the time to complete such administrative appeals process has passed, no
relief can be given under the habeas corpus doctrine.
Mr. Wolfe’s appeal states:
I was not in possession of a cellphone or charger. I know nothing about it. It states
that it was found under bunks 2-33 and 2-34. I was at work all day and have no
knowledge of the violation. Other evidence states that it was found in a pair of
boots. I was wearing my boots. There were also errors in the write up. It says
nothing about any identification of the accused offender, or that I as identified by
state I.D. It also states that the incident occurred at 700 pm, military time. There is
no 700 pm. It would have to be am, but the incident occurred at 1900 pm. I was
also give the pink copy of my writeup [sic]. I was supposed to receive the white
copy. The bottom line is though, I had nothing to do with this. I worked hard and
made many changes to get to a level 1. Please overturn this so that I may get back
there. Thank you.
Mr. Wolfe did not raise a claim that he was denied video evidence in his administrative
appeal. He also does not argue good cause for the default and prejudice resulting from it.
Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004) (petitioner must show good cause and
prejudice to overcome procedural default). This claim is therefore defaulted and Mr. Wolfe
cannot raise it here.
2. Sufficiency of the Evidence
Mr. Wolfe also argues that he evidence was insufficient to support the disciplinary
conviction.
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.
Wolfe argues that the boots were found in a common area to which many inmates had
access and that the respondent did not sufficiently investigate the charges by determining
whether the boot in which the phone was found belonged to him and whether the phone
contained any information connected to him.
Mr. Wolfe has failed to show that the evidence against him was insufficient. It is
undisputed that the phone was found in a boot under his bed – an area that it is safe to assume he
controlled. While the hearing officer could have reached a different conclusion, the Court cannot
find that there was no evidence to support the conclusion that the hearing officer reached. It was
therefore not arbitrary for the hearing officer to find that Mr. Wolfe possessed the phone. Ellison,
820 F.3d at 274. To the extent that Mr. Wolfe argues that a more extensive investigation into the
boots and the phone should have been performed, this does not support a conclusion that the
evidence that was presented was insufficient. Mr. Wolfe did not request the phone or the boots as
evidence and there is no evidence that the hearing officer ignored exculpatory evidence. Piggie v.
Cotton, 344 F.3d 674, 678 (7th Cir. 2003). Mr. Wolfe is therefore not entitled to habeas relief on
this basis.
3. Lay Advocate
Mr. Wolfe also argues that he was denied a lay advocate. The respondent argues that this
claim is procedurally defaulted because Mr. Wolfe did not raise it in his administrative appeals.
Because he did not raise it, he cannot raise it in this habeas petition. Eads, 280 F.3d at 729. Even
if this claim were not procedurally defaulted, it would still fail because a violation of a state
policy – like that allowing a lay advocate – does not rise to the level of a due process violation to
provide a basis for habeas relief. See Keller v. Donahue, 271 Fed. Appx. 531, 532 (7th Cir.
2008).]
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. Wolfe to the relief he
seeks. Accordingly, Mr. Wolfe’s 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: 6/28/18
Distribution:
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
GREGORY WOLFE
238354
PUTNAMVILLE - CF
PUTNAMVILLE CORRECTIONAL FACILITY
Electronic Service Participant – Court Only
David Corey
INDIANA ATTORNEY GENERAL
david.corey@atg.in.gov
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