United States District Court, S.D. Illinois
GEORGE J. BLACK, No. 12653-027, Petitioner
T.J. WERLICH, Respondent.
MEMORANDUM AND ORDER
R. Herndon Judge
currently incarcerated in the FCI-Greenville, Illinois,
brings this habeas corpus action pursuant to 28 U.S.C. §
2241 to challenge the execution of his sentence.
Specifically, he seeks restoration of 41 days of good conduct
credit which was revoked when he was found guilty of a
disciplinary infraction on November 17, 2015 (Doc. 1, p. 2).
to petitioner, on October 12, 2015, he was placed into an
“eight man tank” with seven other inmates (Doc.
1, p. 3). He did not know any of the cellmates prior to that
date. On October 15, 2015, at 7:15 p.m., a random search of
the cell was conducted. As a result, two
“one-hitter” marijuana pipes were found inside a
toilet paper roll, which had been placed inside a yellow
laundry bag hanging on the wall of the cell's bathroom.
and the other seven prisoners were escorted to the Special
Housing Unit (SHU), where each one was interviewed and
underwent a urinalysis. Only one cellmate (A. Collins) tested
positive for drugs (Doc. 1, p. 2). Collins then admitted that
he was the owner of the pipes, and took responsibility for
the conduct violation. Collins was placed in segregation.
Petitioner and the other six cellmates all tested negative,
and they were released back to their housing unit.
these developments, petitioner was charged with possession of
drugs or related paraphernalia, and appeared at a
disciplinary hearing on November 17, 2015. Evidence was
presented regarding the contraband found in the cell, the
urinalysis results, and the confession of inmate Collins.
Petitioner chose to remain silent and presented no defense.
Despite the evidence of Collins' guilt, the hearing
officer found petitioner guilty, stating: “[Y]ou would
have made a statement and presented a defense against the
charges throughout the entire discipline process to include
during the UDC hearing” (Doc. 1, p. 2). Petitioner
maintains that his choice to remain silent was not a
statement of guilt, and his silence was the only evidence
Court recognizes that it is permissible to draw adverse
inferences from a prisoner's silence in a prison
disciplinary proceeding, particularly when faced with
probative evidence of guilt. See Lenea v. Lane, 882
F.2d 1171, 1174 (7th Cir. 1989) (citing Baxter v.
Palmigiano, 425 U.S. 308, 319, (1976)). However, the
hearing officer's apparent reliance on petitioner's
choice to remain silent, coupled with cellmate Collins'
confession of guilt, and the lack of direct evidence of
petitioner's knowledge or actual possession of the
contraband, presents a due process challenge to the
sufficiency of the evidence that precludes dismissal of the
petition at this time. See Superintendent, Mass. Corr.
Inst. v. Hill, 472 U.S. 445, 454 (1985) (revocation of
good conduct credits must be supported by “some
evidence” in order to satisfy due process concerns);
see also Austin v. Pazera, 779 F.3d 437 (7th Cir.
2015) (“some evidence” standard was not met where
contraband was found in workspace where four other inmates
commenting on the merits of petitioner's claims, the
Court concludes that the petition survives preliminary review
under Rule 4 and Rule 1(b) of the Rules Governing Section 2254
Cases in United States District Courts.
HEREBY ORDERED that respondent shall answer or otherwise
plead within thirty days of the date this order is entered
(on or before January 4, 2017). This preliminary order to respond
does not, of course, preclude the Government from raising any
objection or defense it may wish to present. Service upon the
United States Attorney for the Southern District of Illinois,
750 Missouri Avenue, East St. Louis, Illinois, shall
constitute sufficient service.
FURTHER ORDERED that pursuant to Local Rule 72.1(a)(2), this
cause is referred to United States Magistrate Judge Clifford
J. Proud for further pre-trial proceedings.
FURTHER ORDERED that this entire matter be REFERRED to United
States Magistrate Judge Proud for disposition, as
contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. §
636(c), should all the parties consent to such a
is ADVISED of his continuing obligation to keep the Clerk
(and each opposing party) informed of any change in his
whereabouts during the pendency of this action. This
notification shall be done in writing and not later than
seven (7) days after a transfer or other change in address
occurs. Failure to provide such notice may result in
dismissal of this action. See Fed. R. Civ. P. 41(b).