Opinion
Civ. No. 3:99-CV-0672.
February 10, 2000.
Pro se for Plaintiff/Petitioner.
Diane M. Mains, Indiana Department of Correction, Indiana Government Center S., 302 W. Washington St., Ste. E334, for Defendant/Respondent.
MEMORANDUM AND ORDER
On November 23, 1999, pro se petitioner, Darnell Mayers, an inmate at the Indiana State Prison in Michigan City, Indiana (ISP), filed a petition pursuant to 28 U.S.C. § 2254. The Response filed by the Attorney General of Indiana on January 18, 2000, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). The petitioner filed a handwritten Traverse on January 27, 2000, 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 Exhibits A through I which represent the state record relevant to this case, and the court has examined the same. The Conduct Adjustment Board (CAB) proceedings were had in May, 1999 at the ISP, and during that time frame, marijuana was confiscated from this petitioner. The procedural demands of Wolff v. McDonnell, 418 U.S. 539 (1974), and the evidentiary requirements of Superintendent, Mass. Corr. Institution at Walpole v. Hill, 472 U.S. 445 (1985), have been applied.
The sanction was a demotion to Credit Class III and the deprivation of 90 days of earned time credit which invokes Wolff. See McPherson v. McBride, No. 97-1394 (7th Cir. August 13, 1999). If the divergence of testimony that is apparent in this record would happen in a regular court of record, the case would probably be described as a swearing contest. Certainly, Brady v. Maryland, 373 U.S. 83 (1963) does not apply in these CAB proceedings. But there is a duty to disclose exculpatory evidence. See Rasheed-Bey v. Duckworth, 969 F.2d 357 (7th Cir. 1992).
This court has real concerns about the failure to provide the videotape that this petitioner claims would exonerate him. This court was not present and cannot evaluate the credibility of the witnesses, a function which must be decided by the CAB. The Attorney General's reason for the non-disclosure of the videotape is thin, to say the least, and the language chosen by the Attorney General is somewhat suspect and is guarded. For example, at page 5, the Attorney General states:
"the videotape would not have provided any evidence which could not have been provided by the witness statements already considered at the hearing. Furthermore, the videotape, if it existed, was not patently exculpatory. Therefore, the CAB was not required to review the tape."
In the footnote at page 5, there is an attempt by the Attorney General to wire around Sweeney v. Parke, 113 F.3d 716 (7th Cir. 1997) on the basis that the rights recognized in Sweeney have not been established by the Supreme Court of the United States. Inthis court, Sweeney v. Parke is a binding precedent unless and until the Supreme Court of the United States or indeed the Congress of the United States says otherwise.
Therefore, this court has a very serious concern with reference to this record and now ORDERS this case REMANDED to the Indiana Department of Corrections with a mandate to conduct a full and fresh CAB hearing at which the videotape and its contents are available to the petitioner and to the CAB. In this regard, it would help the appearance of fairness if the new CAB hearing were conducted by different CAB members, although the court is not ordering such. This court does not reach the so-called stacking issue that has been raised by this petitioner. IT IS SO ORDERED.