UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

DERRICK ASHER JOHNSON, )

)

Petitioner, )

)

v. ) CAUSE NO. 3:13-CV-619 WL

)

SUPERINTENDENT, )

)

Respondent. )

OPINION AND ORDER

Derrick Asher Johnson, a pro se prisoner, filed a habeas petition under 28 U.S.C. § 2254

challenging a prison disciplinary proceeding. (DE 1.) The court is obligated to review the petition

and dismiss it if “it plainly appears from the petition and any attached exhibits that the petitioner is

not entitled to relief[.]” RULE 4 OF THE RULES GOVERNING SECTION 2254 CASES.

According to the petition, on April 16, 2013, Mr. Johnson was found guilty of assaulting a

staff member at Westville Correctional Facility. (DE 1 at 1.) In his petition, he raises one claim: that

the prison failed to come forward with more than “some evidence” to prove him guilty of the

offense. (Id. at 4-5.) In his view, the applicable burden of proof is that of a civil forfeiture

proceeding, preponderance of the evidence. (Id. at 5.) He acknowledges that he did not raise this

claim at all levels of the administrative appeals process. (Id. at 6.)

Upon review, Mr. Johnson fails to allege a cognizable due process claim. He argues

incorrectly that the prison had to establish his guilt by a preponderance of the evidence; in the prison

disciplinary context, all that is needed to satisfy due process is “some evidence” to support the

disciplinary decision. Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455 (1985). Mr.

Johnson does not argue that the some evidence standard was not met, only that the prison failed to
satisfy the higher burden he believes was applicable. As stated, this argument has no merit in light

of Hill. 

Furthermore, even if Mr. Johnson alleged a cognizable due process claim, principles of

exhaustion that apply to federal review of criminal convictions also apply to review of prison

disciplinary proceedings. See Eads v. Hanks, 280 F.3d 728, 729 (7th Cir. 2002); Markam v. Clark,

978 F.2d 993, 994-95 (7th Cir. 1992). Before seeking federal habeas relief, a prisoner must take all

available administrative appeals, and must raise in those appeals any issue on which he seeks federal

review. Eads, 280 F.3d at 729. An inmate’s failure to properly exhaust his claims in the state

administrative process precludes a federal court from reviewing those claims on the merits. Id.; see

also Moffat v. Broyles, 288 F.3d 978, 982 (7th Cir. 2002) (Indiana prisoner must raise his claim at

all levels of administrative review, including with the final reviewing authority). 

Here, Mr. Johnson acknowledges that he did not raise his claim with the final reviewing

authority. (DE 1 at 6.) In essence, he states he did not do so because he did not expect the final

reviewing authority to rule against him in his appeal. (Id.) Mr. Johnson’s subjective belief that there

was no need to raise the claim does not constitute the type of “external impediment” that would

excuse a procedural default. See Harris v. McAdory, 334 F.3d 665, 669 (7th Cir. 2003). Accordingly,

his claim could not be reached on the merits in any event.

For these reasons, the petition (DE 1) is DISMISSED pursuant to RULE 4 OF THE RULES

GOVERNING SECTION 2254 CASES. 

SO ORDERED.

ENTERED: June 28, 2013 s/William C. Lee 

William C. Lee, Judge

United States District Court

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