United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DISCUSSING NEED FOR EVIDENTIARY HEARING OR
VACATION OF DISCIPLINARY SANCTIONS
EVANS BARKER, JUDGE.
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.
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).
The Disciplinary Proceeding
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
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].
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:
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].
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].
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].
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].