Opinion
No. 3:01cv0613 AS.
February 21, 2002
MEMORANDUM AND ORDER
On August 27, 2001, pro se petitioner, Tyson McCoy, 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 January 18, 2002, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). The petitioner filed a Traverse on February 8, 2002.
The petitioner is a convicted felon serving a sentence imposed by a court in the State of Indiana. He was the subject of a disciplinary proceeding at the MCF, number MCF 01-05-0464. The documentation regarding that proceeding has been placed before this Court. As a result of these proceedings before a Conduct Adjustment Board (CAB), this petitioner was sanctioned for a deprivation of 60 days of earned time credit and demoted from Credit Class I to Credit Class II. Wolff v. McDonnell, 418 U.S. 539 (1974) is implicated.
The factual events involved here apparently occurred at the Bunker Hill location on May 26, 2001 when a correctional officer named Smith searched two pizza boxes that had been brought by a person visiting this petitioner. That effort discovered two compact disks wrapped in a paper towel under one of the pizzas. The petitioner admitted to his ownership of the pizza boxes and informed Officer Smith that the visitor had advised him of the contents. Officer Smith confiscated the same. Proceedings were had beginning May 26, 2001 before a CAB proceeding which comply with Wolff. A hearing was held June 7, 2001, in which the petitioner denied the charge and claimed that his visitor and the pizza boxes had been searched prior to his visit. As indicated, he was found guilty and sanctioned. The administrative appeals were exhausted by August 10, 2001.
Once again, this Court is asked to make a constitutional issue by requiring a separate sentencing hearing to be conducted by a CAB. Given the judicial restructuring of these proceedings in White v. Indiana Parole Board, 266 F.3d 759 (7th Cir. 2001), and Montgomery v. Anderson, 262 F.3d 641 (7th Cir. 2001), that is unlikely to happen. See also Cox v. McBride, No. 01-1413 (7th Cir. January 29, 2002). The lack of a separate sentencing hearing simply will not fly as a constitutional issue. The other raised has to do with denial of access to a photograph of the compact disks. The evidence here is sufficient under 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).
This petitioner did not request to see any physical documentary evidence prior to the CAB proceeding. It is hard to understand why the photograph would have been helpful to this petitioner. This Court will not bottom any decision here on harmless error, and is perhaps more concerned than some others in the judicial process with regard to the availability of evidence in this kind of proceeding. However, in this case the constitutional mandates of Wolff and Superintendent, Mass. Corr. Institution at Walpole v. Hill, 472 U.S. 445 (1985) were not transgressed. If there were violations of state law, those are foreclosed under Estelle v. McGuire, 502 U.S. 62 (1991).
When it is all said and done, and not withstanding the protestation made by Mr. McCoy in his Traverse, there is no basis for relief shown here under 28 U.S.C. § 2254.
This Court has reviewed Huffman v. McBride, 853 F. Supp. 1095 (N.D.Ind. 1994), and the reasoning and result, as well as the particular circumstances of that case, did not become binding authority to grant relief in this case. For all of these reasons, the petition must be, and is now DENIED. IT IS SO ORDERED.