IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

JOSIAH BOYD )

)

Petitioner, )

)

vs. ) NO. 3:13-CV-336

)

SUPERINTENDENT, )

)

Respondent. )

OPINION AND ORDER

This matter is before the Court on the Petition under 28

U.S.C. Paragraph 2254 for Writ of Habeas Corpus by a Person in

State Custody filed by Josiah Boyd, a pro se prisoner, on April 22,

2013. For the reasons set forth below, the court DENIES the

petition for writ of habeas corpus pursuant to 28 U.S.C. §

2244(d)(1), and DIRECTS the Clerk to close this case.

BACKGROUND

Josiah Boyd, a pro se prisoner, was found guilty of

threatening in violation of B-213 by the Disciplinary Hearing Body

(DHB) at the Miami Correctional Facility on July 6, 2012, under

cause number MCF 12-06-441. He was sanctioned with the loss of 60

days earned credit time, the imposition of a suspended 30 day loss

of earned credit time, and demoted from credit class 2 to credit

class 3. Boyd lists four grounds in his habeas corpus petition: (1)

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that he was denied the right to present documentary evidence, (2)

that he was denied a copy of the findings of fact, (3) that he was

denied an impartial decision maker, and (4) that he was denied the

right to speak at the hearing. 

DISCUSSION

The respondent argues that Boyd has procedurally defaulted the

first three grounds because he did not raise them during his

administrative appeal. This is correct. “[T]o exhaust a claim, and

thus preserve it for collateral review under § 2254, a prisoner

must present that legal theory to the . . . Final Reviewing

Authority . . ..” Moffat v. Broyles, 288 F.3d 978, 982 (7th Cir.

2002). The form used by Boyd to file both his habeas corpus

petition and his traverse ask him to explain why he did not exhaust

any claim that he did not raise during his administrative appeal.

DE 1 at 7 and DE 5 at 5. Boyd left both of these questions blank

and has provided the court with no explanation for excusing his

procedural default. Therefore because Boyd did not raise the first

three grounds during his administrative appeal (see DE 4-4 at 1),

they cannot be a basis for habeas corpus relief. 

Boyd’s fourth, and only exhausted ground, is that he was

denied the right to speak at his hearing. The Disciplinary Hearing

Report states that he “Refused to participate.” DE 4-3. In his

petition, Boyd wrote, “I was not present. The reason being is that

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it was held outside of my presence. I never had a chance to testify

if I wanted to. I was never informed by any member of the

disciplinary hearing committee why this was done.” DE 1 at 6. In

his traverse, Boyd did not present any argument in relation to

ground four. See DE 5 at 5. Boyd does not say that he did not

refuse to participate. He does not even say that he wanted to

testify, much less what he would have testified. “[T]he petitioner

bears the burden of proving his habeas claim,” Quintana v.

Chandler, 723 F.3d 849, 854 (7th Cir. 2013), but Boyd has not done

so. The uncontradicted evidence in this record is that he refused

to participate in his hearing. Therefore it was not a due process

violation to have conducted it without him. Cf. Rodriguez v.

Briley, 403 F.3d 952, 953 (7th Cir. 2005) (“He cannot, in short, be

permitted to engineer an Eighth Amendment violation.”) Neither can

he engineer a due process violation merely by refusing to attend.

Finally, despite his protestations to the contrary, there is

evidence that he is guilty of threatening: Sgt. Rush heard him say,

“the first chance I get out of seg unit. I will attack and stab the

first staff person I can get to.” DE 4-1. Boyd asserts that this

statement alone is not sufficient because it was not recorded or

witnessed by someone else. This is simply not the law. “Prison

disciplinary proceedings are not part of a criminal prosecution,

and the full panoply of rights due a defendant in such proceedings

does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974).

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However, even in a criminal prosecution, the uncorroborated

statement of a single witness is sufficient to support a

conviction. Weiler v. United States, 323 U.S. 606, 608 (1945).

(“Triers of fact in our fact-finding tribunals are, with rare

exceptions, free in the exercise of their honest judgment to prefer

the testimony of a single witness to that of many.”) In the prison

disciplinary setting, a conduct report alone may be sufficient

evidence to support a finding of guilt. See McPherson v. McBride,

188 F.3d 784, 786 (7th Cir. 1999). Such is the case here. 

CONCLUSION

For the foregoing reasons, the court DENIES this petition for

writ of habeas corpus, and DIRECTS the Clerk to close this case.

DATED: October 29, 2013 /s/RUDY LOZANO, Judge

United States District Court

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