Opinion
No. 3:01cv0736 AS.
February 22, 2002
MEMORANDUM AND ORDER
On October 16, 2001, pro se petitioner, Daniel Fleshood, an inmate at the Westville Correctional Facility (WCF) in Westville, Indiana /Indiana State Prison (ISP) in Michigan City, 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 November 26, 2001, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). The petitioner filed a Traverse on January 30, 2002, which is in fine legal form, which this Court greatly appreciates.
The petitioner is a convicted felon serving a sentence imposed by a court in the State of Indiana. He was the subject of a Conduct Adjustment Board (CAB), WCC 01-06-0223, and in the Appendix to the Response, the Attorney General of Indiana has put before this Court Exhibits 1 through 7 which document the proceedings. In the CAB proceedings, this petitioner was sanctioned with a demotion to earning Class II. When one looks carefully at the recent decisions of 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), one has to raise the question of whether simply a demotion in time credit earning class is enough to trigger the applicability of the limited due process involved in Wolff v. McDonnell, 418 U.S. 539 (1974). Any doubt about that will resolved in favor of this petitioner, since there has been compliance here with Wolff, and the evidence is sufficient under Superintendent, Mass. Corr. Institution at Walpole v. Hill, 472 U.S. 445 (1985). See also the standards in this circuit in 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).
There is simply no basis here for relief under 28 U.S.C. § 2254, and the issue with regard to the timeliness of the hearing is basically a state law issue under Estelle v. McGuire, 502 U.S. 62 (1991). This Court is not bottoming a decision on harmless error.
This Court does not conceive that Hester v. McBride, 966 F. Supp. 765 (N.D.Ind. 1997) is a binding precedent here that requires the grant of this petition. Quite to the contrary. The petition is now DENIED. IT IS SO ORDERED.