Judge to DOC: Restore Credit Time For “Unreasonable And Arbitrary’”Sanction


Olivia Covington for www.theindianalawyer.com

The Department of Correction must restore nearly six months of lost credit time to a Westville inmate after a federal judge determined the inmate’s disciplinary loss of credit time was “unreasonable and arbitrary.”

Franklin Cox is serving a 45-year sentence in the Westville Correctional Facility for a 2002 murder conviction. In June 2017, Cox filed a “Verified Petition for Additional Credit Time” in the St. Joseph Superior Court seeking credit for activities he participated in at Westville. However, the programs Cox sought credit for were not on the roster of available DOC cut time programs, so the trial court summarily denied his petition without a hearing.

Then in August 2017, a conduct report was filed alleging Cox “filed a frivolous lawsuit claiming he is owed credit time for classes which are not DOC-approved time cut programs.” That conduct, the report said, constituted the offense of “(a)sserting and/or filing a false lien or judgment.”

Cox, however, argued during a disciplinary hearing that his actions weren’t frivolous because a judge “gave (him) time to respond,” adding that “(t)he court would’ve shut it down if it was frivolous.” But a DOC hearing officer determined Cox had committed an actionable offense and sanctioned him with the loss of 165 days earned credit time. Of those days, 120 were for the instant offense and 45 were from a previously suspended sanction.

Cox then filed a habeas petition in the U.S. District Court for the Northern District of Indiana, arguing his petition was not a “lawsuit.” He also argued there was insufficient evidence to warrant the revocation of his earned credit time, and the district court agreed.

“The conduct report — and underlying facts supporting the report — fail to establish that Cox filed a lien or judgment against another person that was false or otherwise untrue,” Judge Jon E. DeGuilio wrote Monday in Franklin J. Cox v. Warden, 3:18-cv-076. “…While the verified petition may have been frivolous because the relief Cox sought was not sanctioned by IDOC, the petition itself — in no way, shape, or form — can be viewed as constituting that of a lien or judgment.

“There is also no evidence to suggest that Cox intended or actually filed the verified petition against another person,” DeGuilio continued. “Rather, as stated, he filed the verified petition in the St. Joseph Superior Court against the State of Indiana in connection with his criminal case. Because there is no factual basis in the record to support the (Disciplinary Hearing Officer’s) guilty finding, it was unreasonable and arbitrary for the DHO to conclude Cox violated offense A-122.”

Thus, the court granted Cox’s habeas petition and ordered DOC to file documentation by Feb. 28 showing that Cox’s guilty finding was vacated and his related credit time was restored.


Please enter your comment!
Please enter your name here