Opinion
No. 3:01cv0885 AS
April 10, 2002
MEMORANDUM AND ORDER
On December 13, 2001, pro se petitioner, Steven Tuck, an inmate at the 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 March 25, 2002, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). The petitioner filed a Traverse on April 4, 2002.
The petitioner is a convicted felon serving a sentence imposed by a court in the State of Indiana. He has been the subject of a prison disciplinary proceeding, in which he was found guilty of battery and placed in disciplinary segregation for one year, ordered to pay restitution, and deprived of 735 days of earned credit, and demoted from Credit Class I to Credit Class III. The deprivation of 730 days of earned credit time and the demotion in credit class, either or both, implicate Wolff v. McDonnell, 418 U.S. 539 (1974). The Attorney General of Indiana has placed 20 pages of documentation before this Court that explicates the proceedings referred to. It appears that there has been compliance with the procedural demands under Wolff in these proceedings, which commenced on or about April 22, 2001.
The collateral review that is envisioned by § 2254 focuses on violations of the Constitution, treaties and laws of the United States. See 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).
It is certainly not clear from the documentation here that this petitioner requested to see the contents of a video at the time of the conduct report. He did attend the hearing before a three-member Conduct Adjustment Board (CAB), and it is undisputed from the record that two of the members of that Board viewed a videotape. The CAB relied on staff reports, this petitioner's statement and internal investigation file, and the videotape. However, on administrative appeal, the same was remanded so that all of the members of the CAB could view the video, and it was further ordered that a new and fresh CAB hear the case. Very wise move on the part of the Department of Corrections. Thus, the petitioner was rescreened on June 27, 2001, entered a plea of not guilty and requested the assistance of the lay advocate. The petitioner requested that a person named Gibson provide a witness statement, but did not request any physical evidence. This new CAB conducted a hearing on the charge against the petitioner on or about July 3, 2001, and each of its members reviewed the videotape taken August 22, 2001. Specifically, as indicated in the record, the following conclusion was reached:
The video clearly shows Atkinson 901045 entering his cell S.W. 403 prior to 1:50 p.m. on 4-22-01 in good physical condition without any injuries. Several seconds later the video clearly shows Tuck 982012 and Gibson 104608 enter Atkinson (sic) 901045 cell S West 403. Several seconds later, the video clearly shows Tuck 982012 and Gibson 104608 exit Atkinson (sic) 901045 cell S.W. 403. Several seconds later, Officer McCormick is seen on the video looking into Atkinson (sic) 901045 cell S.W. 405 and calling for assistance.
The CAB heard Gibson as well as the petitioner, and the spin of each on these events. Again, the CAB recommended sanctions of one year of disciplinary segregation, an order to pay restitution, the loss of 730 days of earned credit time, and demotion from Credit Class I to Credit Class III. These sanctions were approved on administrative appeal. That process was completed by August 22, 2001.
Beyond any doubt, the Court of Appeals in this circuit has retooled the basic approach to these cases under 28 U.S.C. § 2254. See Cox v. McBride, No. 01-1413 (7th Cir. January 29, 2002), Eades v. Hanks, No. 01-1720 (7th Cir. January 18, 2002), Piggie v. McBride, No. 01-2611 (7th Cir. January 17, 2002), 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). Again, there has been compliance with the procedural mandates of Wolff. The evidence is also more than 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 Court is concerned about whether the disclosure of the videotape, or the failure to disclose it, as the case may be, complies with the recent mandates reflected in the opinion in Piggie. With that exception, the relief requested under 28 U.S.C. § 2254 is DENIED. However, in an abundance of caution, within 60 days from the date of the entry of this Order, the petitioner and Attorney General should each file briefs with reference to the issue of the video as dealt with in Piggie. IT IS SO ORDERED.