Judges: Per Curiam
Filed: Jan. 25, 2019
Latest Update: Mar. 03, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted December 20, 2018* Decided January 25, 2019 Before JOEL M. FLAUM, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge MICHAEL Y. SCUDDER, Circuit Judge No. 18-1971 ANTHONY C. MARTIN, Appeal from the United States District Petitioner-Appellant, Court for the Southern District of Indiana, Indianapolis Division. v. No. 1:17-cv-01
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted December 20, 2018* Decided January 25, 2019 Before JOEL M. FLAUM, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge MICHAEL Y. SCUDDER, Circuit Judge No. 18-1971 ANTHONY C. MARTIN, Appeal from the United States District Petitioner-Appellant, Court for the Southern District of Indiana, Indianapolis Division. v. No. 1:17-cv-017..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 20, 2018*
Decided January 25, 2019
Before
JOEL M. FLAUM, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 18‐1971
ANTHONY C. MARTIN, Appeal from the United States District
Petitioner‐Appellant, Court for the Southern District
of Indiana, Indianapolis Division.
v.
No. 1:17‐cv‐01708‐RLY‐DLP
DUSHAN ZATECKY,
Respondent‐Appellee. Richard L. Young,
Judge.
O R D E R
After a disciplinary hearing, inmate Anthony Martin was found guilty of
possessing a controlled substance at Pendleton Correctional Facility in Indiana. He was
stripped of good‐time credit, among other sanctions. Eventually he petitioned for a writ
of habeas corpus under 28 U.S.C. § 2254, alleging that in five ways the prison punished
him without due process: insufficient evidence supported his conviction; the hearing
officer was biased against him; he was not permitted to call witnesses for his defense; he
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. CIV. P. 34(a)(2)(C).
No. 18‐1971 Page 2
was denied a lay advocate; and the prison denied his request to retest the controlled
substance and present other evidence. The district court determined that Martin failed
to exhaust his administrative remedies and had procedurally defaulted his claims.
Where a habeas petitioner has not exhausted a claim and complete exhaustion is
no longer available, the claim is procedurally defaulted, but such default can be excused
if he can demonstrate cause for the default and prejudice, or that the failure to consider
his claims would constitute a miscarriage of justice. Guest v. McCann, 474 F.3d 926, 930
(7th Cir. 2007); Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004). The record is unclear
as to whether Martin had cause for the failure to exhaust, as there is some evidence
calling into question whether he received timely notice of the denial of his first appeal
so as to allow him to timely appeal that denial. But we need not resolve that question,
because his claims are without merit and therefore he is unable to demonstrate either
prejudice or a miscarriage of justice.
Martin’s hearing occurred after he was charged with possessing cocaine. A
correctional officer named Davis (his first name is not in the record) searched Martin’s
property and discovered a white powdery substance. He completed an “Evidence
Record” form recording his discovery and delivered the substance to Officer Kraus
(whose first name is also not in the record). Officer Kraus field‐tested the substance and
determined that it was cocaine. Martin later received a notice charging him with
possessing the cocaine, pleaded not guilty, and made three requests. He asked that he
receive a lay advocate for his hearing, that the substance be retested by an outside
laboratory, and that three chosen witnesses testify for him. The prison denied his
requests. It explained that the substance had already been tested, one witness had
already given a statement, the second was not present when the substance was found,
and the third (Officer Davis) had given his statement in the conduct report. The hearing
officer found Martin guilty of possessing a controlled substance. As relevant to his
petition, he lost 90 days good earned‐time credit and was demoted to a lower
credit‐earning class.
Martin appealed the hearing officer’s decision internally, raising several
arguments. He argued that (1) he was wrongly denied his right to call witnesses and
present other evidence; (2) the evidence was not reliable because the chain of custody of
the tested substance was incomplete and the substance was not tested by an outside lab;
and (3) the hearing officer was not impartial because she made racial remarks. The
prison denied Martin’s appeal, and Martin then unsuccessfully pursued relief through
the Indiana Department of Correction’s administrative procedures.
No. 18‐1971 Page 3
Martin next went to district court. He petitioned for a writ of habeas corpus
under 28 U.S.C. § 2254, asserting the same due‐process violations that he raised in his
appeal of the hearing officer’s decision. The district court denied relief, ruling that
Martin had procedurally defaulted his claims because he had not properly pursued an
appeal with the Department’s Final Reviewing Authority. See 28 U.S.C. § 2254(b)(1)(A);
Moffat v. Broyles, 288 F.3d 978, 981–82 (7th Cir. 2002) (describing Indiana’s two‐step
administrative appeals process that prisoner must complete to properly exhaust claims).
The relevant legal principles are well established. Martin has a liberty interest in
his good‐time credit and his credit‐earning class, so he is entitled to due process before
those interests can be taken away. See Wolff v. McDonnell, 418 U.S. 539, 557 (1974);
Scruggs v. Jordan, 485 F.3d 934, 939 (7th Cir. 2007). In this context, due process requires
that the prison’s decision has support from “some evidence in the record,” a lenient
standard requiring no more than “a modicum of evidence.” Walpole v. Hill, 472 U.S. 445,
454–55 (1985); see also Donelson v. Pfister, 811 F.3d 911, 916 (7th Cir. 2016). We ask only
“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. Due process also entitles a prisoner
to an impartial hearing officer and material, non‐redundant witnesses whose
appearance does not jeopardize prison security. See Jones v. Cross, 637 F.3d 841, 845
(7th Cir. 2011); Scruggs, 485 F.3d at 939.
Martin first contends that the evidence is insufficient to convict him because the
prison did not establish a proper chain of custody of the substance. We disagree. The
“Evidence Record” that Officer Davis completed confirms that he found the substance
in Martin’s property and delivered it to Officer Kraus, who stated that he received the
substance from Officer Davis and field‐tested it. Taken together, this is “some evidence”
supporting the decision to sanction Martin. See Webb v. Anderson, 224 F.3d 649, 652–53
(7th Cir. 2000). Furthermore, Martin offered no evidence that these statements and the
field test are mistaken, so nothing undermines the sufficiency of this evidence.
See id. at 653; Meeks v. McBride, 81 F.3d 717, 721 (7th Cir. 1996).
Martin also argues that the prison denied him due process by rejecting his
request to call three witnesses, but we see no error with the prison’s decision. One of the
witnesses that Martin requested was not present during the search of Martin’s property
or during the field test. Martin does not explain how, given this witness’s absence from
the two key events, his testimony could have been relevant. The other two witnesses
that Martin requested had already given statements, and Martin has not explained how
their testimony would have differed from those statements. Because Martin does not
No. 18‐1971 Page 4
have a right to call witnesses who would give irrelevant, repetitive, or unnecessary
testimony, see Scruggs, 485 F.3d at 939–40; Pannell v. McBride, 306 F.3d 499, 503 (7th Cir.
2002), the prison did not violate Martin’s due process rights by refusing to call them.
Martin next asserts that the hearing officer was biased against him and
commented on his race during the hearing. In this appeal, he asserts that the hearing
officer was biased and personally involved in the conduct report, that she was having a
sexual affair with Davis and Kraus, that she was a known recovering drug addict, and
that she made racial comments stating that blacks are the cause of cocaine in the
neighborhood. Of those allegations, only the claim of racial bias was raised in state
proceedings, and in those proceedings he did not set forth the actual alleged statements,
asserting the claim only a conclusory manner such as alleging the hearing officer made
“racial and defamatory” statements. We presume the honesty and integrity of
adjudicators, and the burden for proving impermissible behavior is high. See Piggie
v. Cotton, 342 F.3d 660, 666–67 (7th Cir. 2003). Martin has not met this burden.
Comments by a hearing officer about race may reflect bias, but the unsworn and
unsupported allegations by Martin were an insufficient basis to call the presumed
integrity of the hearing into question. See Redding v. Fairman, 717 F.2d 1105, 1113 (7th
Cir. 1983).
That brings us to Martin’s next challenge—that the prison denied him a lay
advocate. Martin lacks a right to a lay advocate unless he is illiterate or the subject
matter is complex. See Wolff, 418 U.S. at 570; Miller v. Duckworth, 963 F.2d 1002, 1004
(7th Cir. 1992). His grievances and his administrative appeals show that he is literate,
and there is nothing complex about this possession case. In any case, the record of the
hearing suggests that the prison gave Martin a lay advocate.
Last, Martin asserts that he was denied due process because the prison denied
his request for outside testing of the substance found in his property. But Martin has not
given us a reason to doubt the reliability of the field test, and we have found no case
that requires a prison to retest a substance that initially and reliably tested positive as a
controlled substance. Martin, too, has not pointed us to any such case. Indeed, such
retesting is not required even in criminal trials. See United States v. Sanapaw, 366 F.3d
492, 496 (7th Cir. 2004). Martin responds that the prison denied him a chance to present
other evidence at his hearing, but he did not offer to the district court any admissible
evidence that he asked to present other evidence at the hearing. We therefore conclude
that the hearing comported with due process.
No. 18‐1971 Page 5
We have considered Martin’s other contentions, but none merits discussion. The
judgment of the district court is AFFIRMED.