Opinion
No. 3:05cv0547 AS.
December 16, 2005
MEMORANDUM OPINION AND ORDER
On or about August 30, 2005, pro se petitioner, Marcus L. Hudson, an inmate at the Westville Correctional Facility in Westville, 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 30, 2005, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). The petitioner filed a Traverse on December 9, 2005, which this Court has carefully examined. The Attorney General has placed before this Court a series of documents designated A through F, both inclusive, which explicate in great detail the proceedings involved.
The petitioner is a convicted felon serving a sentence imposed by a court in the State of Indiana. At the time of the filing of this petition he was incarcerated in the WCF. He was the subject of a prisoner disciplinary proceeding which included 90 days of disciplinary segregation which does not implicate a liberty interest under Sandin v. Conner, 515 U.S. 472 (1995). The case number is MYC 05-06-0004 and the petitioner was found guilty of battery. He also was sanctioned to 180 days of earned credit time loss and a demotion from credit class I to credit class II, which does implicate Wolff v. McDonnell, 418 U.S. 539 (1974). There has been compliance here with the procedural demands of Wolff, and that basically ends the discussion. The evidence here is sufficient under 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.), cert. denied, 531 U.S. 999 (2000), McPherson v. McBride, 188 F.3d 784 (7th Cir. 1999), and Meeks v. McBride, 81 F.3d 717 (7th Cir. 1996).
The collateral review that is envisioned by § 2254 focuses on violations of the Constitution, treaties and laws of the United States. See Haas v. Abrahamson, 910 F.2d 384 (7th Cir. 1990), and 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 Holman v. Gilmore, 126 F.3d 876 (7th Cir. 1997).
With all deference, the view of the Ninth Circuit as to the standards for "some evidence" may be somewhat different than in this circuit. Burnsworth v. Gunderson, 179 F.3d 771 (9th Cir. 1999) is not a binding precedent here. This court has taken the trouble to carefully examine both the Burnsworth case in 1999 in the 9th Circuit, an opinion by Judge Pregerson and Malchi v. Thaler, 211 F.3d 953 (5th Cir. 2000). The reasoning and result in Malchi is not helpful to this petitioner. It is to be noted there that the district judge in Texas granted the petition, but a panel of the Court of Appeals for the Fifth Circuit reversed that and the law of that case is very definitely in the Fifth Circuit opinion. With regard to Burnsworth, the factual setting is significantly different there than here. There, the Court of Appeals found "no shred of evidence," which is certainly not the case here. The Supreme Court cases cited, namely California v. Green, 339 U.S. 149 (1970), and Thompson v. City of Louisville, 362 U.S. 199 (1960) do not deal with this particular species of hearing and determination. Basically, the proceedings here are governed by the Supreme Court decision in Wolff. This court has also taken the trouble to reexamine the Seventh Circuit cases cited by this petitioner. One Seventh Circuit case so referenced purports to be Lenea v. Lane, and the cite given is 822 F.2d 1171 (7th Cir. 1989). The correct cite is Lenea v. Lane, 882 F.2d 1171 (7th Cir. 1989). Lenea is a case brought under 42 U.S.C. § 1983, not 28 U.S.C. § 2254. There are significant differences between the petitions filed under 28 U.S.C. § 2254 and those filed under 42 U.S.C. § 1983. See Preiser v. Rodriguez, 411 U.S. 475 (1973), and Allen v. Duckworth, 6 F.3d 458 (7th Cir. 1993), cert. den., 114 S.Ct. 1106 (1994).
This court is well aware of Webb v. Anderson, 224 F.3d 649 (7th Cir.), cert. denied, 531 U.S. 999 (2000), which indeed is an appeal from this court, and with all deference does not support the position taken here by this pro se petitioner. Quite to the contrary. When it is all said and done, the petitioner has presented no basis here for relief under 28 U.S.C. § 2254. Such relief is now DENIED. IT IS SO ORDERED.