UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

JAMES HERRON, )

)

Petitioner, )

) 

v. ) CAUSE NO. 3:15CV498-PPS

)

SUPERINTENDENT, )

)

Respondent. )

OPINION AND ORDER

James Herron, a pro se prisoner, filed a habeas corpus petition challenging the

prison disciplinary hearing in which a Disciplinary Hearing Officer found him guilty of

conspiring to traffic contraband in violation of Indiana Department of Correction

policies. [ECF 1 at 1.] As a result, Herron was sanctioned with the loss of 100 days

earned credit time and was demoted from Credit Class 1 to Credit Class 2. [Id.] Herron’s

petition identifies three grounds for relief. 

In Ground One, Herron argues that the hearing officer had insufficient evidence

on which to find him guilty. [ECF 1 at 2.] In the disciplinary context, "the relevant

question is whether there is any evidence in the record that could support the

conclusion reached by the disciplinary board." Superintendent v. Hill, 472 U.S. 445,

455-56 (1985). "In reviewing a decision for some evidence, courts are not required to

conduct an examination of the entire record, independently assess witness credibility,

or weigh the evidence, but only determine whether the prison disciplinary board’s

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decision to revoke good time credits has some factual basis." McPherson v. McBride, 188

F.3d 784, 786 (7th Cir. 1999) (quotation marks omitted). In short, the standard for

sufficiency of the evidence in the context of prison disciplinary matters is an

exceedingly modest one. Webb v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000) (quotation

marks, citations, parenthesis, and ellipsis omitted). In fact, a Conduct Report alone can

be sufficient evidence to support a finding of guilt. McPherson, 188 F.3d at 786.

Herron was charged with violations of IDOC A-111 and A-113. [ECF 6-1 at 1.] 

IDOC A-111 penalizes “[a]ttempting or aiding and abetting with another to commit any

Class A offense.” Indiana Department of Correction, Adult Disciplinary Process:

Appendix I. 

http://www.in.gov/idoc/files/02-04-101_APPENDIX_I-OFFENSES_6-1-2015(1).pdf.

IDOC A-113 prohibits inmates from “[e]ngaging in trafficking (as defined in IC 35-44.1-

3-5) with anyone who is not an offender residing in the same facility.” Id. Indiana Code

35-44.1-3-5 gives this definition of trafficking:

(b) A person who, without the prior authorization of the person in charge

of a penal facility or juvenile facility, knowingly or intentionally:

(1) delivers, or carries into the penal facility or juvenile facility with

intent to deliver, an article to an inmate or child of the facility;

(2) carries, or receives with intent to carry out of the penal facility

or juvenile facility, an article from an inmate or child of the

facility; or

(3) delivers, or carries to a worksite with the intent to deliver,

alcoholic beverages to an inmate or child of a jail work crew or

community work crew...

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IC § 35-44.1-3-5 (West). 

The Conduct Report charged Herron as follows: 

On 6/3/15 I began investigating the above offender for possible

Trafficking. Information was gathered from phone calls between the

Herron (sic) and his girlfriend Alicia Stout, indicating she was making

contraband drops for Herron at Minimum Housing. 

On 5/22/15 Herron received conduct after be (sic) found in possession of

tobacco. Information from phone calls prior to this incident, indicated

Alicia was to get an item ready to bring when she came to visit. 

On 6/3/15 information was gathered from phone calls in which Herron

asks Alicia to “make it smaller,” “take them out of the thing to make it

smaller” and that he wanted to “make sure she got out of here alright.”

Other language used during the calls supported the allegation that Alicia

had dropped contraband off. Additional calls on 6/3/15 indicated that

Alicia was on MCA grounds to make drop, but there were too many

people around.

Phone calls were continued to be monitored over the next several days.

Information was gathered that Herron and Alicia were attempting a new

way to get contraband into the facility. They discussed “mailing” the stuff,

that it was a safer way, and others had done it before. Herron told Alicia

to mark the box with “stars” and to wrap the items in a t-shirt. He also

gave her a specific return address to put on the label. 

Postal deliveries were monitored for the next several days to attempt to

intercept the box. In a later phone call, Alicia admitted she had not mailed

the box and Herron indicated he was glad because “they been out there

every day checking.”

See DII Case # 15-MCF-0077 for further. (CONFIDENTIAL).

[ECF 6-1 at 1.] The hearing officer considered staff reports, the Conduct Report,

evidence from witnesses, and the evidence contained in the confidential investigation

file. [ECF 6-3 at 1.] Based on this evidence, the hearing officer found Herron guilty. [Id.]

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The hearing officer had sufficient evidence to find Herron guilty of conspiracy to

traffic. Herron’s communications with Stout can easily be understood as instructions to

Stout for smuggling contraband into the prison. “The Federal Constitution does not

require evidence that logically precludes any conclusion but the one reached by the

disciplinary board.” Superintendent v. Hill, 472 U.S. 445, 457 (1985). While it is possible

that the recorded conversations served a benign purpose, Herron has not set forth any

such alternative explanation. There was plainly “some evidence” to support the finding

of guilty. 

Herron argues that he should not have been found guilty because he was not

“convicted of any tobacco.” [ECF 3 at 2.] This is true, but irrelevant. Herron was

charged and found guilty of conspiracy and attempt, not possession. The fact that

Herron was not in possession of the contraband does not implicate the sufficiency of the

evidence used to find him guilty. Thus, Ground One does not identify a basis for habeas

corpus relief. 

In Ground Two, Herron argues that the hearing officer improperly prohibited

him from presenting exculpatory evidence. But Herron had the opportunity to request

physical evidence in his defense, and he declined to do so. [ECF 6-2 at 1.] The absence

of such evidence at his hearing was not a denial of due process, but the result of his not

having requested it. Therefore, Ground Two does not state a basis for relief. 

In Ground Three, Herron argues that the Hearing officer improperly denied his

requested witness. [ECF 1 at 2.] During his screening, Herron requested that Alicia

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Stout serve as a witness on his behalf. Herron claims that Stout would say that she

“do[es] not know what’s happening.” [ECF 6-2 at 1.] Respondent argues that Herron is

procedurally defaulted on this claim because he failed to raise the issue during his

administrative appeals. [ECF 6 at 10.] But 28 U.S.C. § 2254(b)(2) permits me to deny a

petition for habeas corpus on the merits even if the petitioner failed to exhaust his State

court remedies. That’s what I will do here.

It was not a denial of due process for the hearing officer to have declined to call

Stout as a witness. “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). “The requirements of due

process are considerably relaxed in the setting of prison discipline . . ..” Eads v. Hanks,

280 F.3d 728, 729 (7th Cir. 2002). Prison disciplinary hearing officers do not have the

power to compel the action or attendance of persons outside of the prison. See Aguilar v.

Endicott, 224 F. App’x 526, 528 (7th Cir. 2007). 

In addition, Stout was not merely a witness for Herron - she was also suspected

of criminal activity. See IC 35-44.1-3-5. It was not unreasonable for the hearing officer to

decline to interview a witness whose Fifth Amendment rights would be implicated in

the process because “[p]rison officials must have the necessary discretion to keep the

hearing within reasonable limits.” Wolff, 418 U.S. at 556. The onerous task of pursuing a

witness outside of the prison, who may seek the assistance of outside counsel, amounts

to the type of “crippling impediment” to efficient prison management that Wolff

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explicitly sought to prevent. Id. Furthermore, there was nothing preventing Herron

from asking for time to obtain a statement from Stout himself. Thus, Ground Three is

not a basis for habeas corpus relief.

Herron raises one final issue in his traverse. According to Herron, he did not

receive 24-hour’s notice prior to his hearing. [ECF 8 at 6.] Herron did not raise this issue

in his petition, or in his appeals, so the issue is waived. Furthermore, this claim has no

merit. When Herron was provided with notice of the disciplinary charges, he had the

opportunity to waive his 24-hour’s notice of the hearing. [ECF 6-2 at 1.] He checkmarked the box that indicated that he wished to waive this right. [Id.] In light of this

waiver, Herron’s due process right to notice was not violated when his hearing

occurred the following day. 

If Herron wants to appeal this order, he does not need a certificate of

appealability because he is challenging a prison disciplinary proceeding. See Evans v.

Circuit Court, 569 F.3d 665, 666 (7th Cir. 2009). However, he may not proceed in forma

pauperis on appeal because pursuant to 28 U.S.C. § 1915(a)(3) an appeal in this case

could not be taken in good faith.

ACCORDINGLY:

For the reasons set forth above, James Herron’s petition for writ of habeas corpus

[ECF 1] is DENIED. 

The court DENIES petitioner leave to appeal in forma pauperis pursuant to 28

U.S.C. § 1915(a)(3). 

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The clerk is DIRECTED to close this case. 

SO ORDERED.

ENTERED: June 8, 2017. /s/ Philip P. Simon 

Judge Philip P. Simon

United States District Court

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