UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

TIMOTHY AUSTIN, )

)

Petitioner, )

) 

v. ) No. 2:13 CV 221

)

SUPERINTENDENT, )

)

Respondent. )

OPINION AND ORDER

Timothy Austin, a pro se prisoner, filed a habeas petition under 28 U.S.C. § 2254

challenging a prison disciplinary proceeding. (DE #1.) In WCC #13-03-0074, a hearing

officer found Austin guilty of attempted trafficking. (DE #7-8 at 1.) The charge was

initiated on February 28, 2013, when Correctional Officer M. Spoon wrote a conduct

report stating as follows:

On Feb 28, 13 at approx. 10:00 AM while I Ofc Spoon was shaking down the

crawl space at the Gary Parole Office, Gary, IN. I Ofc Spoon found 5 packs

of Bugler cigarette papers, 1 ziploc bag that appears to have tobacco in it, 2

ziplock bags filled with more ziplock bags in it. Offender Austin, Timothy

#20967 was assigned to this area (crawl space) as his work assignment.

(DE #7-1.) 

On March 7, 2013, Austin was formally notified of the charge and given a copy of

the conduct report. (DE #7-1; DE #7-2.) He pled not guilty, declined the assistance of a

lay advocate, did not request any physical evidence, and requested witness statements

from fellow inmates Brian Rhodes, Adam Vigil, and David Armentrout. (DE #7-2.)

Statements were obtained from all three witnesses prior to the hearing. Vigil stated as
follows: “Every time Mr. Austin went into the crawl space he was supervised by a C/O.

Other then that I know nothing about all that other stuff.” (DE #7-3). Rhodes stated,“I

don’t think that Austin, Timothy had nothing to do with what he’s being accused of. I

worked with him (Austin) but [was] never around him.” (DE #7-4.) Armentrout stated,

“I never saw anyone in the crawl space but I know Tim was the one that I was told had

went down there.” (DE #7-5.)

After a postponement, a hearing was held on March 25, 2013. (DE #7-8.) Austin

made the following statement: “I wasn’t working in the crawl space I was working

above ground.”(Id.) Based on the evidence, the hearing officer found him guilty. (Id.) As

a result he lost 60 days of earned-time credits, among other sanctions. (Id.) His

administrative appeals were denied. (DE #7-9 to DE #7-11.)

 The Fourteenth Amendment guarantees prisoners certain procedural due

process rights in prison disciplinary hearings: (1) advance written notice of the charges;

(2) an opportunity to be heard before an impartial decision-maker; (3) an opportunity to

call witnesses and present documentary evidence in defense, when consistent with

institutional safety and correctional goals; and (4) a written statement by the fact-finder

of evidence relied on and the reasons for the disciplinary action. Wolff v. McDonnell, 418

U.S. 539 (1974). To satisfy due process, there must also be “some evidence” in the record

to support the guilty finding. Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455

(1985). 

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In his first two claims, Austin argues that he was denied the opportunity to call

witnesses. (DE #1 at 2-3.) A prisoner has a limited right to present witnesses and

evidence in his defense, consistent with correctional goals and safety. Wolff, 418 U.S. at

566. A hearing officer has considerable discretion with respect to witness and evidence

requests, and may deny requests that threaten institutional safety or are irrelevant,

repetitive, or unnecessary. Piggie v. Cotton, 342 F.3d 660, 666 (7th Cir. 2003).

Furthermore, due process only requires access to witnesses and evidence that are

exculpatory. Rasheed-Bey v. Duckworth, 969 F.2d 357, 361 (7th Cir. 1992). “Exculpatory”

in this context means evidence that “directly undermines the reliability of the evidence

in the record pointing to [the prisoner’s] guilt.” Meeks v. McBride, 81 F.3d 717, 721 (7th

Cir. 1996). The denial of the right to present evidence will be considered harmless,

unless the prisoner shows that the evidence could have aided his defense. See Jones v.

Cross, 637 F.3d 841, 847 (7th Cir. 2011). 

Here, Austin claims that he was denied the opportunity to obtain statements

from prison staff, who could have provided more information about his work

assignments. (DE #8 at 3.) However, the record reflects that at screening Austin

requested statements from only three witnesses; those statements were obtained and

considered by the hearing officer. (DE #7-2 to 7-5.) He cannot fault the hearing officer

for failing to consider evidence he did not properly request. See Piggie v. McBride, 277

F.3d 922, 925 (7th Cir. 2002). Nor has he made the necessary showing of prejudice. It

appears Austin takes issue with Officer Spoon’s phrasing in the conduct report that he

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was “assigned” to the crawl space, and wanted staff to explain that the crawl space was

not his official work station. Even if he could have obtained such testimony, it would

not have exculpated him from the charge. The key issue was whether Austin had access

to the crawl space through his prison job, and he acknowledges as much in his filings.

(DE #1 at 3; DE #8 at 3.) The statements of his own witnesses also confirmed that Austin

had been in the crawl space. (DE #7-3 to 7-5.) Thus, his argument is unavailing.

He also suggests that the hearing officer improperly relied on “hearsay”

statements and denied him the opportunity to cross-examine Officer Spoon. This was

not a formal criminal proceeding, and the hearing officer was not required to follow the

formal rules of evidence, or permit Austin to confront or cross-examine adverse

witnesses. Piggie, 342 F.3d at 666 (inmate had no right to cross-examine or confront

adverse witnesses); Walker v. O’Brien, 216 F.3d 626, 637 (7th Cir. 2000) (formal rules of

evidence do not apply at prison disciplinary proceeding). Nor does Austin explain how

a cross-examination of Officer Spoon would have revealed evidence exculpating him

from the charge. See Jones, 637 F.3d at 847; Meeks, 81 F.3d at 721. Again his complaint

appears to be that he was not technically “assigned” to the crawl space, but as explained

above, this distinction is irrelevant. Austin has not demonstrated an entitlement to

habeas relief.

Austin’s two remaining claims can be read to challenge the sufficiency of the

evidence. (DE #1 at 3.) In reviewing a disciplinary proceeding for sufficiency of the

evidence, “courts are not required to conduct an examination of the entire record,

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independently assess witness credibility, or weigh the evidence, but only determine

whether the prison disciplinary board’s decision to revoke good time credits has some

factual basis.” McPherson v. McBride, 188 F.3d 784, 786 (7th Cir. 1999). “[T]he relevant

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

conclusion reached by the disciplinary board.” Hill, 472 U.S. at 455-56 (emphasis

added). A habeas court will overturn the hearing officer’s decision only if “no

reasonable adjudicator could have found [the prisoner] guilty of the offense on the basis

of the evidence presented.” Henderson v. United States Parole Comm'n, 13 F.3d 1073, 1077

(7th Cir. 1994).

Here, Officer Spoon described how contraband was found hidden in a crawl

space where Austin had been working. (DE #7-1.) Austin does not refute the specifics of

Officer Spoon’s account, but points out that four other inmates also had access to the

crawl space. (DE #1 at 3.) He further claims that he had not been down in the crawl

space for approximately 3-4 weeks prior to the date the contraband was found. In his

view, he could not have been found guilty because there was no direct evidence that the

tobacco was his. However, a hearing officer is permitted to rely on circumstantial

evidence to establish guilt. See Hamilton v. O’Leary, 976 F.2d 341, 345 (7th Cir. 1992).

Furthermore, the record need not contain evidence of actual possession of contraband,

as long as there is sufficient evidence of constructive possession. Id. at 345-46. There is

sufficient evidence of constructive possession in this case, since the contraband was

found in an area where Austin and only a few other inmates had access to it. See Hill,

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472 U.S. at 457 (“Although the evidence in this case might be characterized as meager,

and there was no direct evidence identifying any one of three inmates as the assailant,

the record is not so devoid of evidence that the findings of the disciplinary board were

without support or otherwise arbitrary.”); Hamilton, 976 F.2d at 345-46 (evidence of

constructive possession was sufficient, since contraband was found in a location where

only the petitioner and three other inmates could have left it); see also Pigg v. Finnan, 289

Fed. Appx. 945, 947 (7th Cir. Aug. 18, 2008) (“When only a few inmates have access to

the place contraband is found, constructive possession is ‘some evidence’ sufficient to

sustain a disciplinary conviction.”). 

Austin also argues that he should not have been found guilty because another

inmate admitted to trafficking tobacco around the time of this incident. (DE #8 at 3.)

There is nothing in the administrative record to support his assertion. Moreover, even if

another inmate admitted to trafficking, the hearing officer was not required to credit the

truth of this statement, nor would it necessarily exculpate Austin from the charge. The

hearing officer could have reasonably concluded that more than one inmate was

involved in the trafficking scheme. In any event, weighing the evidence and assessing

the relative credibility of the witnesses were tasks for the hearing officer, not this court.

McPherson, 188 F.3d at 786. To be constitutionally adequate, the evidence does not have

to point to only one logical conclusion; the question is whether there is some evidence

to support the hearing officer’s decision. Based on the record, the court cannot say that

the hearing officer’s decision was arbitrary or without evidentiary support. See Hill, 472

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U.S. at 457; see also Moffat v. Broyles, 288 F.3d 978, 981 (7th Cir. 2002) (witness statements

constituted some evidence); McPherson, 188 F.3d at 786 (conduct report alone provided

some evidence to support disciplinary determination).

Finally, in his traverse, Austin appears to assert a number of additional claims

based on violations of Indiana Department of Correction (“IDOC”) policies governing

time deadlines and the choice of sanction imposed. (DE #8.) A traverse is not the place

to be asserting new claims for the first time. See RULE 2(C)(1) OF THE RULES GOVERNING

SECTION 2254 CASES (providing that all grounds for relief must be contained in the

petition). Regardless, even if IDOC rules were violated, this would not entitle Austin to

federal habeas relief. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (habeas relief is only

available for a violation of the United States Constitution or other federal laws); Hester

v. McBride, 966 F. Supp. 765, 775 (N.D. Ind. 1997) (violation of IDOC policy in

disciplinary proceeding could not support grant of habeas relief, since federal habeas

court “does not sit to correct any errors of state law”).

For these reasons, the petition (DE #1) is DENIED. 

SO ORDERED.

Date: June 11, 2014

s/James T. Moody 

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT