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Milian v. Knight

United States District Court, S.D. Indiana, Indianapolis Division

May 30, 2017

ANTHONY MILIAN, Petitioner,
v.
WENDY KNIGHT Superintendent, Respondent.

          ENTRY DISCUSSING NEED FOR EVIDENTIARY HEARING OR VACATION OF DISCIPLINARY SANCTIONS

          SARAH EVANS BARKER, JUDGE.

         The petition of Anthony Milian for a writ of habeas corpus challenges a prison disciplinary proceeding identified as No. CIC 16-01-0085. Mr. Milian set forth four bases for relief in his habeas petition, one of which is discussed in this Entry - namely, that he was denied the right to present evidence to an impartial decision maker.

         Prisoners in Indiana custody may not be deprived of credit time, Cochran v. Buss, 381 F.3d 637, 639 (7th Cir. 2004), or of credit-earning class, Montgomery v. Anderson, 262 F.3d 641, 644-45 (7th Cir. 2001), without due process. The due process requirement is satisfied with the issuance of advance written notice of the charges, a limited opportunity to present evidence to an impartial decision maker, a written statement articulating the reasons for the disciplinary action and the evidence justifying it, and “some evidence in the record” to support the finding of guilt. Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985); Wolff v. McDonnell, 418 U.S. 539, 570-71 (1974); Piggie v. Cotton, 344 F.3d 674, 677 (7th Cir. 2003); Webb v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000).

         B. The Disciplinary Proceeding

         On January 12, 2016, Investigator J. Poer wrote a Report of Conduct in case CIC 16- 01-0085 charging Mr. Milian with use of a cellular device. The Conduct Report states:

On 10/19/15 a cellular telephone was recovered during a search of an offender in C Unit. I, Investigator J. Poer, requested a subpoena for a Call Detail Records for the confiscated cellphone. The Call Detail Records contained a listing of all calls made to and from the confiscated cellphone between 7/29/15 and 10/19/15. I compared the numbers from the confiscated cellphone to the inmate GTL Phone System. Phone number 847-505-4259 was called on 8/2/15 from the confiscated cellphone. This number is on the GTL Phone System as being called by Offender Anthony Milian 170293 24A-C4. The Offender who was in possession of the cellphone has never called phone number 847-505-4259. It is common knowledge that offenders who have access to a cellphone allow multiple offenders to use the phone in return for payment. I have concluded through my investigation that Offender Milian is in violation of A121 “Use of a Cellular Telephone.”
[Dkt. 11-1].

         On January 14, 2016, Mr. Milian was notified of the charge and was given a copy of the Conduct Report and the Notice of Disciplinary Hearing “Screening Report.” He was notified of his rights and pled not guilty. He requested a lay advocate but, according to the Screening Report, did not request a witness. He also did not request any physical evidence. [Dkt. 11-2].

         The Hearing Officer conducted a disciplinary hearing in case CIC 16-01-0085 on March 27, 2016. At the hearing Mr. Milian provided the following statement:

         I was denied evidence at screening. I never used this cell phone. The alleged phone number is not connected to me on the alleged date of conduct report. [Dkt. 11-4].

         The Hearing Officer found Mr. Milian guilty of the charge of use of a cell phone. In making this determination, the Hearing Officer considered the staff reports and the physical evidence. [Dkt. 11-4]. Based on the Hearing Officer's recommendations the following sanctions were imposed: forty-five (45) days of lost commissary and phone; 90 days disciplinary segregation; 90 days of credit time deprivation; and a demotion from credit class 1 to credit class 2. The Hearing Officer recommended the sanctions because of the seriousness of the offense, the frequency and nature of the offense, the degree to which the violation disrupted and endangered the security of the facility, and the likelihood of the sanction having a corrective effect on the offender's future behavior. [Dkt. 11-4].

         Mr. Milian appealed to the Warden arguing that there was no witness statement from the inmate found in possession of the cellular telephone and as such he was unable to call this individual as a potential exculpatory witness. He also argued the evidence was insufficient to support a guilty finding because he was denied potential exculpatory evidence in that he was never shown the evidence the Hearing Officer relied on in finding Mr. Milian guilty, i.e. the subpoenaed cellular records showing the numbers called on the confiscated cellular phone. Mr. Milian argued that the number found in the cellular records that was also on his telephone list was not in fact on his telephone list during the time period it was called from the cellular phone. [Dkt. 11-5].

         The Warden denied the appeal without addressing Mr. Milian's contentions. [Dkt. 11-6]. His appeal to the final reviewing authority was also denied. [Dkt. 11-7].

         C. ...


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