Opinion
No. 3:02cv0181 AS
August 1, 2002
MEMORANDUM AND ORDER
On March 11, 2002, pro se petitioner, William Daniel Bewley, Sr., an inmate at the Miami Correctional Facility (MCF) in Bunker Hill, Indiana, filed a petition seeking relief under 28 U.S.C. § 2254. The Response filed on behalf of the respondent by the Attorney General of Indiana on May 17, 2002, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). The petitioner filed a handwritten Traverse on July 29, 2002, which this Court has carefully examined.
The petitioner is a convicted felon serving a sentence imposed by a court in the State of Indiana. The Attorney General has placed before this Court a series of exhibits numbered 1 through 10, both inclusive, which detail the Conduct Adjustment Board (CAB) proceeding involving this petitioner. The CAB sanctioned the petitioner to one year of disciplinary segregation, which generally does not implicate the due process clause of the Fourteenth Amendment under Sandin v. Conner, 515 U.S. 472 (1995). He was also sanctioned for a demotion from credit class I to credit class III and a loss of 104 days of earned credit time. This does implicate the Fourteenth Amendment due process clause, as explicated in Wolff v. McDonnell, 418 U.S. 539 (1974).
This petitioner has a rather long list of nine contentions some of which are borderline frivolous. He was charged in October, 2001 with battery against a correctional officer. In fact, there were two correctional officers involved who were injured; an Officer Jones and a Sergeant Henke. Both were assaulted and sustained injuries. At the screening, he requested a lay advocate, six prison employees plus an offender as witnesses, and medical records as physical evidence. The disciplinary hearing was scheduled and rescheduled because of the unavailability of some of the witnesses requested and staff. The disciplinary hearing was scheduled a third time on November 15, 2001, when this petitioner requested a continuance, which was granted. Finally, the hearing was held before a three-member CAB panel. At the hearing, apparently this petitioner asked for other witnesses that had not been mentioned in the screening. On the basis of staff reports, the statement of the offender, and a photograph of Sergeant Henke's face, the CAB found this petitioner guilty of battery and he was sanctioned, as aforesaid. The administrative review went forward and has been completed.
Petitioner argues something about his entitlement to have been taken out of general population before he attacked these correctional officers, and it is very hard to see how that implicates the due process clause. It must be remembered that the collateral review that is envisioned by § 2254 focuses on violations of the Constitution, treaties and laws of the United States. See Bell v. Duckworth, 861 F.2d 169 (7th Cir. 1988), cert. den., 489 U.S. 1088 (1989). The focus is not on violations of state law. See Estelle v. McGuire, 502 U.S. 62 (1991). See also Hickey v. O'Bannon, 287 F.3d 656 (7th Cir. 2002). Petitioner's assertion about an impartial CAB panel is unsupported in the fashion necessary in Redding v. Fairman, 717 F.2d 1105 (7th Cir. 1983), cert. denied, 465 U.S. 1025 (1984). There is absolutely no basis to say that the delay in this hearing was some way or other a violation of the Fourteenth Amendment when some of the delay, perhaps not all of it, was at the doorstep of the petitioner.
There is also a failure on the part of this petitioner to make a case with regard to the calling of witnesses under Ponte v. Real, 471 U.S. 491 (1985), as well as Forbes v. Trigg, 976 F.2d 308 (7th Cir. 1992), cert. denied, 507 U.S. 950 (1993). It is a little hard to understand what physical evidence this petitioner would have wanted at this hearing, since there was a picture of the injuries to the face of the one of officers he assaulted. There is some argument about whether he had a right to choose a lay advocate. Apparently, he had a lay advocate. It is highly doubtful that he has a right to choose the exact lay advocate any more than a defendant in a criminal case has a right to choose his or her appointed counsel. Any incorrect data listed is certainly of no constitutional importance whatsoever. There is some argument about a Sergeant McCord and whether he improperly participated in the disciplinary hearing. This Court does not bottom any decision on harmless error, but is well aware that the nature of these proceedings is described in new and different legal terms by the Court of Appeals in this circuit. See Cox v. McBride, 279 F.3d 492 (7th Cir. 2002), Eads v. Hanks, 280 F.3d 728 (7th Cir. 2002), Piggie v. McBride, 277 F.3d 922 (7th Cir. 2002), White v. Indiana Parole Board, 266 F.3d 759 (7th Cir. 2001), and Montgomery v. Anderson, 262 F.3d 641 (7th Cir. 2001). See also Gaither v. Anderson, 236 F.3d 817 (7th Cir. 2000).
The evidence here must comply with the standards in Superintendent, Mass. Corr. Institution at Walpole v. Hill, 472 U.S. 445 (1985), and under the "some evidence" test applicable in this circuit. See Webb v. Anderson, 224 F.3d 649 (7th Cir. 2000), cert. denied, 2000 WL 1512783 (U.S.), McPherson v. McBride, 188 F.3d 784 (7th Cir. 1999), and Meeks v. McBride, 81 F.3d 717 (7th Cir. 1996). The procedures here regarding Wolff were followed. Any issues with regard to self-defense and credibility were clearly issues to be decided by the CAB and not this Court. In any event, there is no clearly established precedent from the Supreme Court of the United States that would support this petitioner's claim in this regard.
Once again, this Court must wade through the morass of decisional law regarding the production of videotapes. The Court of Appeals in this circuit has yet to clearly rule that a prisoner charged before a disciplinary prison body is entitled to a videotape of the incidents in question, and until that is clarified, this Court will presume that the prisoner is not entitled to it. Certainly, the CAB is entitled to examine the videotape in question.
The petitioner asked for "Williams" as his lay advocate, and his lay advocate turned out to be "Larry Williams, No. 90044". It is hard to make a constitutional issue out of that one. Sergeant McCord did not participate as a decision-maker in the disciplinary hearing, but was a screening officer who may have been present at the hearing. See White. Nothing that Sergeant McCord did in this regard violated the Fourteenth Amendment of the Constitution of the United States, as that is interpreted under Wolff.
The plain fact of the matter is that this petitioner engaged in assaultive conduct apparently not only as to one but two correctional officers, and has been sanctioned for it without any of his constitutional rights being violated. Therefore, the petition for relief under 28 U.S.C. § 2254 is now DENIED WITHOUT PREJUDICE. IT IS SO ORDERED.