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Ellison v. Zatecky

United States Court of Appeals, Seventh Circuit

April 19, 2016

CURTIS T. ELLISON, Petitioner-Appellant,
DUSHAN ZATECKY, Respondent-Appellee

         Submitted February 11, 2016

          Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:12CV597 -- James T. Moody, Judge.

         CURTIS T. ELLISON, Petitioner - Appellant, Pro se, Pendleton, IN.

         For DUSHAN ZATECKY, Superintendent, Respondent - Appellee: Kyle Hunter, Attorney, OFFICE OF THE ATTORNEY GENERAL, Indianapolis, IN.

         Before WOOD, Chief Judge, and POSNER and WILLIAMS, Circuit Judges.


Page 272

          Williams, Circuit Judge.

          A disciplinary officer found inmate Curtis Ellison guilty of possessing heroin at Pendleton Correctional Facility in Indiana. The officer punished Ellison by stripping him of 90 days' good-time credit. After exhausting his administrative remedies, Ellison petitioned the district court for collateral review under 28 U.S.C. § 2254, and he now appeals the denial of that petition. Because Ellison was prevented from defending against the accusation that he possessed a controlled substance, we vacate the district court's decision and remand for further proceedings.

         Correctional Officer Guffey presented Ellison with a screening report (the notice given an inmate about an im-pending disciplinary proceeding) asserting that, slightly more than a week earlier, Correctional Officer Bynum had confiscated heroin during a search of Ellison's cell. Ellison told Guffey that Bynum (whom Ellison knew) had not searched his cell that day. Two unfamiliar guards conducted the search, he said, and found nothing. Indeed, although a conduct report from Bynum does say that he found heroin in cell 105D, which is assigned to Ellison, a photo of the heroin discovered during the search is labeled " Cell 106D." That cell is located on the other side of the building from Ellison. He explained to Guffey that Bynum's conduct report mistakenly attributes to him the heroin found in Cell 106D, and he asked Guffey to identify the two guards who actually had searched his cell that day. He requested in writing that those guards, as well as Officer Bynum, appear as witnesses at his disciplinary hearing. Ellison also requested the surveillance video and the test results for the substance.

         According to Ellison, three days after receiving the screening report, he recognized and spoke with one of the guards who had searched his cell. The guard identified himself as Correctional Officer Dorethery, confirmed that he had searched Ellison's cell on the day in question (but not with Officer Bynum), and stated that no contraband had been found during the search. Dorethery also said that his name

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would have been included in the conduct report as a witness if heroin had been found during the search. Dorethery said he was willing to provide Ellison with a statement for his hearing and recommended contacting Sergeant Easton, his supervisor, to obtain a copy of the search log identifying the guards who had searched each cell. Ellison wrote to Officer Guffey the same day, explaining that he had identified Dorethery and wished to use his testimony and the search log to show that Bynum had found the heroin in Cell 106D, as noted on the photo of the contraband.

         No witnesses showed at Ellison's hearing the following day. Not even Officer Bynum was present, even though Ellison had requested him by name at screening and he presumably could have addressed the discrepancy between Ellison's cell number included in the conduct report and a different inmate's cell number on the photo of the heroin. The hearing officer refused to call Officer Dorethery because, Ellison was told, his request had not been made at screening (this despite the fact that Ellison had been explicit at screening that he wanted to call as witnesses " the officers who shook down the cell" and had notified Officer Guffey promptly upon learning Dorethery's name). No explanation was given for the hearing officer's failure to call Bynum. Ellison was not permitted to watch the video of the search, and though the hearing officer viewed the video herself, she simply noted in her written decision, " Ofc. seen going into Ofds. cell," without naming the guard in the video or even saying she would recognize Bynum if it was him. At the hearing Ellison testified that he had never used drugs, emphasized that the cell number written on the photo shows that the heroin was found in a different inmate's cell, and characterized the contradictory conduct report as a case of " clear human error." The hearing officer still found Ellison guilty.

         In the district court Ellison claimed that he was denied due process because, he argued, the evidence of guilt was inadequate, the disciplinary hearing was not conducted fairly, and the evidence that the seized substance was heroin (an e-mail to Officer Guffey from " Tom Francum" saying that the substance had tested positive) was unreliable. Ellison elaborated that he had identified Officer Dorethery and requested both Dorethery's testimony and the search log in advance, and that the evidence he requested had been essential to show that the photograph, not Officer Bynum's later conduct report, correctly identifies the cell where the heroin was found. But the district judge understood Ellison to be challenging only the sufficiency of the evidence on which the hearing officer relied, and denied the ยง 2254 petition. The court reasoned that, although " there was ...

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