GRADY v. BROWN
Filing
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Order Denying Petition for Writ of Habeas Corpus and Directing Entry of Final Judgment - The petition of Kenny Grady for a writ of habeas corpus challenges Indiana prison disciplinary proceeding number WVS 17-05-0005. 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. Grady to the relief he seeks. Accordingly, Mr. Grady's petition for a writ of habeas corpus is denied. Final judgment consistent with this Order shall now issue. (See Order.) Signed by Judge William T. Lawrence on 9/4/2018. (DMW)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
KENNY GRADY,
Petitioner,
v.
RICHARD BROWN, Warden,
Respondent.
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No. 2:17-cv-00479-WTL-DLP
Order Denying Petition for Writ of Habeas Corpus
and Directing Entry of Final Judgment
The petition of Kenny Grady for a writ of habeas corpus challenges Indiana prison
disciplinary proceeding number WVS 17-05-0005. For the reasons explained in this Entry,
Mr. Grady’s habeas petition is 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 by 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 May 24, 2017, Indiana Department of Correction (IDOC) Investigator L. Harbaugh
wrote a Conduct Report charging Mr. Grady with the Class A offense of conspiracy, assisting, or
attempting to traffic with another. The Conduct Report provides:
The Investigation department began looking into multiple unauthorized financial
transactions that were being communicated over the GTL system [the inmate
telephone system] between Offender King and a girlfriend, Kelyn Crittenden.
During the course of the investigation it was discovered that King had connections
with food service offenders, who had corrupt staff willing to bring drugs inside.
Also during calls it was found that Ms. Crittenden, upon King’s request was
meeting people on the streets for the purpose of picking up drugs and collecting
money. While investigating these concerns during the course of May 7th, 8th, 9th
and 10th Ms. Crittenden agreed to meet and obtain two packages of drugs from
Markel Jordan, brother of Jeron Jordan, 245195 (see attached breakdown.).
Meeting dates and times were mentioned, and information was exchanged about
the drop. Offender Jordan conspired with Ms. Crittenden to meet his brother to
conduct this illegal activity. Jordan and Offender Jordan spoke about the meeting
and Jordan first spoke with Ms. Crittenden using Offender Kenny Grady’s phone.
Grady has worked with Crittenden in the past giving her multiple pay-pal numbers
for King. Grady was more of a middle man but he did by policy conspire with King
and Jordan to get drugs brought inside.
Evidence: All calls can be reviewed on the GTL system. JPays can be reviewed
linking Grady and Ms. Crittenden. Case #17-MCF-0054 Attempted Trafficking and
17-MCF-0050 Attempting to Traffic.
Dkt. No. 10-1. Investigator Harbaugh wrote other confidential reports, filed in this action ex parte,
which describe the investigation and actions of the persons involved in more detail. Dkt. No. 12.
Some of this information may be discussed or cited below.
Mr. Grady was notified of the charge on May 26, 2017, when he received the Screening
Report. Dkt. No. 10-2. He pleaded not guilty to the charge, requested a lay advocate, but did not
request any witnesses or physical evidence. Id.
The disciplinary hearing was held June 12, 2017. Dkt. No. 10-6. It had been postponed in
order to give the hearing officer time to review case files from the Miami Correctional Facility
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concerning other offenders thought to be involved in trafficking drugs. Mr. Grady made this
statement in his defense:
Mr. Jordan asked to use my phone. Ms. Crittenden bring my children to see me. I
stepped away – I didn’t know what they had going on. I know nothing about paypal numbers being given. I have given her numbers to call a girl for me.
Dkt. No. 10-6.
Based on Mr. Grady’s statement, the conduct report, the case file summaries from the
Miami Correctional Facility in 17-MCF-00504 & 17-MCF-0054, and the confidential reports of
investigation, the hearing officer found Mr. Grady guilty of the A-111/113 offense. Grievous
sanctions imposed included the loss of earned credit time and a demotion in credit earning class.
Mr. Grady appealed to the Facility Head and the IDOC Final Reviewing Authority; both
appeals were denied. He then brought this petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254.
C.
Analysis
Mr. Grady seeks habeas corpus relief through four grounds for relief: (1) that the
disciplinary hearing officer denied him due process of law when he was not provided a reasoned
explanation of why the evidence did not support a conviction on a lesser charge; (2) that he was
denied due process when (a) the transcript of the telephone call to Ms. Crittenden was not provided
to him and (b) the reports from the Miami Correctional Facility were not provided to him; (3) there
was insufficient evidence to support the conviction; and finally (4) the he was denied due process
when the disciplinary hearing officer denied Mr. Grady the right to have his guilt or innocence
decided by a preponderance of the evidence. Respondent contends, and the record demonstrates,
that Mr. Grady exhausted his administrative appeals as to the sufficiency of the evidence grounds
but no others. Mr. Grady concedes he did not exhaust all of his administrative remedies, but does
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not specify which claims he agrees are unexhausted. Dkt. No. 14, p. 10 (petitioner’s reply, marked
as page 8). It does not matter, however, because none of Mr. Grady’s grounds have merit.
1.
Unexhausted Grounds
Grounds one and two were not presented to the IDOC appeal authorities during
Mr. Grady’s administrative appeals. Dkt. No. 1-1, p. 2; Dkt. No. 10-7. Thus they cannot be the
basis for habeas corpus relief. 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). Presenting
the issues to the Facility Head and the Appeals Review Officer “exhausts” the issues for federal
habeas corpus review. Because these issues have not been exhausted in the administrative appeal
process, habeas corpus relief on grounds one and two is denied.
2.
Sufficiency of the Evidence Grounds
Grounds three and four challenge the sufficiency of the evidence and are combined for
analysis. These grounds were presented to IDOC administrative appeal authorities and are
exhausted for federal habeas corpus review. Dkt. Nos. 1-1, 10-7.
Mr. Grady contends that there was no evidence to support the disciplinary hearing officer’s
decision. He argues that the evidence is insufficient to support the conviction because he merely
allowed another inmate, Jordan, to use his (Mr. Grady’s) phone call to speak to Ms. Crittenden,
and he stepped away during the phone call. The hearing officer heard this defense during the
disciplinary hearing, and weighed the competing evidence before finding Mr. Grady guilty of the
charged offense.
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This Court cannot reweigh the evidence. It can only assess whether there was some
evidence to support the hearing officer’s decision. “[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 Conduct Report “alone” can “provide[]
‘some evidence’ for the . . . decision.” McPherson v. McBridge, 188 F.3d 784, 786 (7th Cir. 1999).
There is “some evidence” here. The Conduct Report alone contains sufficient evidence to
support the hearing officer’s decision, and the confidential reports – the essence of which
Mr. Grady is aware of – also support the decision. The IDOC investigator’s reports detail a
comprehensive investigation into the trafficking incidents and support the hearing officer’s
decision. Mr. Grady can be heard on the GTL phone calls giving account numbers to
Ms. Crittenden, a known participant in the trafficking operation. He told her that “someone on the
streets is going to contact her.” Dkt. Nos. 10-1, 10-5, 12. As noted above, this Court’s role is not
to reweigh the conclusions of the report writers, but only to assess whether they constitute “some
evidence” to support the hearing officer’s decision. They do.
Habeas corpus relief on the sufficiency of the evidence grounds, grounds three and four, is
denied.
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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. Grady to the relief he seeks.
Accordingly, Mr. Grady’s petition for a writ of habeas corpus is denied. Final judgment consistent
with this Order shall now issue.
IT IS SO ORDERED.
_______________________________
Date: 9/4/18
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
Distribution:
Kenny Grady
129457
Wabash Valley Correctional Facility – Inmate Mail/Parcels
Electronic Service Participant – Court Only
Electronically Registered Counsel
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