Ping v. McBride

• Citation: 888 F. Supp. 917
• Decision Date: 19 July 1993
• Docket Number: 3:92cv784 AS.,No. 3:92cv659 AS,3:92cv659 AS
• Parties: Thomas PING and Ronald Nance, Petitioners, v. Danny McBRIDE, Respondent. Ronald NANCE, Petitioner, v. Danny R. McBRIDE, Respondent.
• Court: U.S. District Court — Northern District of Indiana

888 F. Supp. 917

Thomas PING and Ronald Nance, Petitioners, v. Danny McBRIDE, Respondent.

Ronald NANCE, Petitioner, v. Danny R. McBRIDE, Respondent.

Nos. 3:92cv659 AS, 3:92cv784 AS.

United States District Court, N.D. Indiana, South Bend Division.

July 19, 1993.

Thomas Ping, Westville, IN, Ronald Nance, Palmyra, IN, for plaintiff.

Thomas D. Quigley, Indiana Atty. Gen., Indianapolis, IN, for respondent.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

Both of the abovementioned petitioners are seeking a writ of habeas corpus pursuant to a CAB hearing and the resulting disciplinary action from that hearing. The return in each case was filed on April 6, 1993, and complies with Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982). Petitioner Nance filed a Traverse to the Return on June 25, 1993, and an elaborate 23-page memorandum with supporting affidavits and materials which is quite lawyerlike in form and substance. Petitioner Ping filed a Traverse on June 29, 1993, which is equally lawyerlike. The court compliments these two pro se petitioners on the legal quality of their presentation to this court.

When a complaint is fashioned as a petition under 28 U.S.C. § 2254 with regard to the Conduct Adjustment Board (CAB) proceedings, this court is compelled to hear those claims. Hamilton v. O'Leary, 976 F.2d 341 (7th Cir.1992), Forbes v. Trigg, 976 F.2d 308 (7th Cir.1992), Miller v. Duckworth, 963 F.2d 1002 (7th Cir.1992), and Harris v. Duckworth, 909 F.2d 1057 (7th Cir.1990). See also Billops v. Wright, 803 F.Supp. 1439 (N.D.Ind.1992).

This court consolidated the abovecaptioned matters because of the common issues of law and fact. Both petitioners were confined at the Branchville Training Center in Tell City, Indiana. In the respective Conduct Reports, both petitioners are charged with battery, a violation of state law. Both Conduct Reports also contain a Report of Investigation of Incident. Both Conduct Reports charge that on December 21, 1991, the petitioners, Ping and Nance, cut another inmate, Steven West, with a sharp object, causing a laceration approximately four inches long and an inch deep. It is also indicated that the events preceding the battery occurred in the recreational room and the actual battery occurred while the victim was in the restroom.

The various exhibits reveal that each petitioner had a lay advocate. Additionally, each petitioner made a statement exculpatory in nature to the CAB. In each case, the CAB found the respective petitioner guilty of battery. In so doing, the CAB indicated:

The CAB has reviewed the evidence including the Conduct Report, Offender's Statement, Investigative Report and Lay Advocate's Statement. The CAB does not believe the offender's version and believes the investigator's summary accurately describes the incident.

See Memorandum in Support of Return to Order to Show Cause at 3 (for both petitioners). The CAB recommended sanctions of a year's disciplinary segregation, transfer to a more secure facility, demotion in time-earning class from credit class I to credit class III, and loss of 300 days' earned credit time for petitioner Ping. The CAB recommended the same sanctions for petitioner Nance except for the demotion in time-earning class.

Both petitioners pursued an appeal as outlined in the Disciplinary Hearing Appeal. Petitioner Ping appealed and argued "that he was denied a written copy of the CAB's findings of fact, that he and Offender Ronald Nance had both been found guilty of the same offense although the victim had been cut only once, and that he could not have cut the victim on the left side because he is right-handed." Id. In his appeal, petitioner Nance argued that

he and Ping were both found guilty of the same offense although the victim had been cut only once, that he was refused the lay advocate of his choice and that the actual lay advocate with responsibility for the hearing had been given only fifteen minutes' notice that he would represent the petitioner, that there was no evidence at the hearing that could be used to convict him of anything, that he was not allowed to see the information the CAB relied upon in finding him guilty, that the Disciplinary Hearing Report reflected the wrong date of the hearing and thus was a decision made before hearing the evidence, and that the report contained neither a statement of the findings of fact nor a recitation of the evidence relied upon.

Id. at 4. Both appeals were denied. Finally, this court notes that petitioner Ping also filed a Petition for Restoration of Time, which was also denied.

I.

Here, in both of the abovecaptioned cases, the Attorney General of Indiana argues that both petitioners have procedurally defaulted on their respective claims. Recently, in Markham v. Clark, 978 F.2d 993 (7th Cir.1992), the Seventh Circuit made it clear that it is incumbent upon a petitioner challenging a CAB proceeding to demonstrate exhaustion of available administrative remedies. Here, the Attorney General of Indiana has very persuasively extended the holding of Markham to procedural default. The petitioners have also made very persuasive arguments on this issue.

In Markham, the Seventh Circuit evaluated the issue of exhaustion in the context of a CAB hearing. The § 2254 petitioner indicated that in evaluating certain disciplinary infractions, the CAB denied his constitutional due process rights. Apparently, in so doing, the CAB eliminated the petitioner's accrued good time credit and lengthened his sentence by 243 days. In Markham, the Seventh Circuit, speaking through Judge Posner, indicated that it is axiomatic to federal habeas corpus relief that the petitioner exhaust any available state remedies, before a federal court will review the claim. The Markham court indicated that "there are two questions: whether a state prisoner is required to exhaust state administrative as well as judicial remedies, and what happens if he fails to do so." Id. at 994.

On these questions, the Markham court explained:

We do not think "courts" in section 2254(b) should be interpreted as being limited to tribunals presided over by persons who are called judges and wear robes. We think the term as it appears in this statute should be read to embrace any tribunal that provides available and effective corrective process.... How states carve up adjudicative functions between courts and agencies is in general and in this particular no business of the federal courts, for the Constitution does not prescribe any particular allocation or separation of powers among the states.... If one state wants to use an administrative body where another state would use a conventional "court," its choice is a matter of indifference from the standpoint of the principles of federalism and comity that underlie section 2254(d). Federal prisoners are required (by judicial rule, not statute) to exhaust their administrative remedies before they can seek relief under the federal prisoner's habeas corpus surrogate, 28 U.S.C. § 2255.... The case for exhaustion of administrative remedies by state prisoners is stronger. Federal courts should not intrude into the relations between a state and its convicted criminals until the state has had a chance to correct its own mistakes. Indiana has established a corrective process for prisoners aggrieved by disciplinary sanctions; we hold that prisoners must use it before turning to the federal courts. Our conclusion is reinforced by 28 U.S.C. § 2254(c), which provides that `an applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of section 2254(b), if he had the right under the law of the State to raise, by any available procedure, the question presented.' There is no limitation to judicial procedure.

Id. at 995. (emphasis supplied) (citations omitted).

Here, the Attorney General argues that by making the exhaustion doctrine applicable in cases of this ilk, then the procedural default analysis must be applied as well. Specifically, the Attorney General maintains that in the abovecaptioned matters, both petitioners have appealed the CAB decisions through the prison administrative system. Apparently, the petitioners pursued certain issues on the administrative level that are different from the issues contained in their petitions here. Next, the Attorney General maintains that the petitioners are only granted one opportunity to pursue their claims on the administrative level and are barred from another opportunity to pursue such administrative remedies. The petitioners did not assert the issues in this petition at the applicable administrative level, and cannot return to the administrative level with these same claims.¹ Therefore, the Attorney General argues that the claims are procedurally defaulted. The petitioners concede that the logical extension of Markham is the application of procedural default to cases of this ilk. Here, the petitioners also point out some very important and fundamental differences between the state court system and the administrative review procedures for CAB hearings. The petitioners argue that these differences make procedural default untenable for purposes of the CAB hearing, the administrative process, and § 2254. The petitioners also argue that assuming arguendo that there is a procedural default issue, then there is cause and prejudice for their procedural default.

This court must commend the Indiana Attorney General on this very cogent and refined application of habeas concepts in this area. This court is equally impressed with the response of the petitioners on this issue. This is undoubtedly an issue of first impression. This court notes that there are many similarities between a § 2254 action premised on a CAB finding and an action pursuant to a state criminal trial. There are, however, some very fundamental problems in the application of cause and prejudice and the comparison becomes very convoluted.

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