Opinion
No. 3:01cv0491 AS
February 26, 2002
MEMORANDUM AND ORDER
On or about July 5, 2001, this pro se petitioner, Jaime Herrera, an inmate at the Indiana State Prison (ISP) in Michigan City Indiana, filed a petition seeking relief under 28 U.S.C. § 2254. The Return filed by the Attorney General on behalf of the respondent on November 9, 2001, represents the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). The petitioner filed a Traverse and a motion for an in-camera inspection of the video tape on January 31, 2002, which is in excellent legal form and greatly appreciated by this Court.
The petitioner is a convicted felon serving a sentence imposed by a court in the State of Indiana. The Conduct Adjustment Board (CAB) which heard this case sanctioned the petitioner for a deprivation of 90 days of earned credit time, and demoted him from credit class I to credit class II. All of this commenced on or about November 14, 2000, when a correctional officer saw a "Cadillac." Such appears to be a homemade string and paper instrument used to transfer items between cells on a range being pulled from one cell to the other. This one was on the west range of C Cellhouse at the ISP. A correctional officer saw this occurring and found a bag containing a green leafy substance which was tied to the end of the Cadillac's string. The officer thought that the substance looked and smelled like marijuana and confiscated it. The incident was videotaped, and later the substance turned out to be marijuana. The conduct report was done on November 21, 2000, and a hearing was held on November 29, 2000. There was a dispute as to this petitioner's involvement in this particular event. However, that dispute was well within the presentations made to the CAB, as reflected in the record in this case.
The administrative procedures here included the assistance of a lay advocate, and this petitioner did timely request that the videotape be reviewed by the CAB. There was one officer, no longer employed at the ISP, and apparently the request for his statement was waived. Another officer was unavailable and did not provide a statement at the petitioner's rehearing. Another officer provided a written statement that he had reviewed the videotape, and yet another officer issued a report of his review of the videotape which is in the record.
This issue with regard to the videotape is the only issue in this case that triggers strong concern here. This is an ongoing problem that has been dealt with by this Court and in unpublished opinions by the Court of Appeals of the Seventh Circuit, and this case may candidly be a candidate for further appellate review on the subject.
The current guiding authority appears to be Piggie v. McBride, No. 01-2611 (7th Cir. January 17, 2002). Since there is some confusion here as to how these facts may fit into the Piggie formula, this case will be remanded so that a clear and precise record can be made.
The decision here appears to be within the outer boundaries of Saenz v. Young, 811 F.2d 1172 (7th Cir. 1987), and the evidence is within the demands of Superintendent, Mass. Corr. Institution at Walpole v. Hill, 472 U.S. 445 (1985). There is a sentence on page 8 of the Attorney General's memorandum which raises questions with this Court, and that statement is, "Herrera was accorded all the process he was due before he was found guilty of making sexual proposals." Unless this Court is missing something, it was the distinct impression here that this case had to do with involvement in possessing and transporting a controlled substance, namely, marijuana. It was not this Court's understanding that this petitioner was charged with making sexual proposals.
Very recent decisions with regard to the partiality of the CAB have come to this Court's attention. The issue of the impartiality of the CAB was also the subject of discussion by the Court of Appeals in White v. Indiana Parole Board, 266 F.3d 759 (7th Cir. 2001), and any of the assertions made here are not in violation of any of the teaching in White. Also, in White, the partial dissent of Judge Rovner also deals in some depth with the problem of impartiality, but it does not appear from this record that there would be a violation even of the standards established there by Judge Rovner with regard to impartiality. An earlier decision in Whitford v. Boglino, 63 F.3d 527 (7th Cir. 1995), also deals with the question of impartiality at page 534, understanding that Whitford is a case brought under 42 U.S.C. § 1983.
So, when it is all said and done here, the only issue that is of remaining concern to this Court has to do with the unavailability of the videotape, and this Court must bow to what appears to be the prevailing view in the Court of Appeals on this subject at this time. Under the present procedures, this case must be remanded to reconsideration under Piggie.
IT IS SO ORDERED.