United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
LOZANO, JUDGE UNITED STATES DISTRICT COURT
matter is before the Court on the Petition under 28 U.S.C.
Paragraph 2254 for Writ of Habeas Corpus, filed by Louis
Cole, a prisoner without a lawyer. For the reasons set forth
below, the petition (ECF 1) is DENIED. The
clerk is DIRECTED to close this case. The
court DENIES Cole leave to proceed in forma
pauperis on appeal.
Cole filed a habeas corpus petition challenging the prison
disciplinary hearing (ISO 17-02-23) where a Disciplinary
Hearing Officer (DHO) found him guilty of use of a cell phone
in violation of Indiana Department of Correction (IDOC)
Policy A-121. ECF 1 at 1. As a result, he was sanctioned with
the loss of 30 days earned credit time. Id. Cole
identifies three grounds which he claims entitles him to
habeas corpus relief.
Ground One, Cole argues that the DHO did not have sufficient
evidence to find him guilty. “[T]he relevant question
is whether there is any evidence in the record that could
support the conclusion reached by the disciplinary
board.” Superintendent v. Hill, 472
U.S. 445, 455-56 (1985). “In reviewing a decision for
some evidence, courts are not required to conduct an
examination of the entire record, independently assess
witness credibility, or weigh the evidence, but only
determine whether the prison disciplinary board's
decision to revoke good time credits has some factual
basis.” McPherson v. McBride, 188 F.3d 784,
786 (7th Cir. 1999) (quotation marks omitted).
[T]he findings of a prison disciplinary board [need only]
have the support of some evidence in the record. This is a
lenient standard, requiring no more than a modicum of
evidence. Even meager proof will suffice, so long as the
record is not so devoid of evidence that the findings of the
disciplinary board were without support or otherwise
arbitrary. Although some evidence is not much, it still must
point to the accused's guilt. It is not our province to
assess the comparative weight of the evidence underlying the
disciplinary board's decision.
Webb v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000)
(quotation marks, citations, parenthesis, and ellipsis
“some evidence” test is satisfied even if
“no direct evidence” exists. Hill, 472
U.S. at 457. Indirect evidence linking the offender to the
offense can satisfy the evidentiary requirement. See
Hamilton v. O'Leary, 976 F.2d 341, 345 (7th Cir.
1992) (hearing officer permitted to rely on circumstantial
evidence to find offender guilty); Brenneman v.
Knight, 297 F. App'x 534, 536 (7th Cir. 2008)
(relying on indirect evidence in finding prisoner guilty).
was found guilty of violating A-121. This offense is defined
as the “[u]nauthorized use or possession of any
cellular telephone or other wireless or cellular
communications device.” IDOC Adult Disciplinary
Process, Appendix I: Offenses.
The Conduct Report states:
On 02/05/2017 two Smart Phones were found hidden in the ISO
Barbershop. Upon investigating the contents of the Grey LG
Cellular Device it was found that two offender's (sic)
used the phone. Demonte Millard 146169 was found to be the
owner of the phone supported by the pictures and phone calls
in the phones records. Upon opening the phone to the Face
Book app and Messenger app it was logged onto the screen name
Abdul-Aziz-Bilal with a photo of an inmate. The phone was
then matched with Offender Cole, Louis #219222 as the
Offender who was logged into the LG phone on Face Book
ECF 1 at 4. During his hearing, Cole denied that he used the
phone. He stated, “I didn't use the phone. My
daughter had made the Facebook page and I had let someone
else use this information.” ECF 1 at 6.
had sufficient evidence to find Cole guilty. A Conduct Report
alone can be sufficient evidence to support a finding of
guilt. McPherson, 188 F.3d at 786. Such is the case
here. The reporting officer relayed his account of having
investigated the information discovered on the phone and
connecting that information with Cole. It was the sole
province of the DHO to weigh the respective credibility of
the two conflicting accounts. While Cole claims that he did
not use the phone, it was not unreasonable or arbitrary for
the DHO to discredit his claim, given that the phone was
logged into a Facebook account that identified Cole as the
user. This is “some evidence” that Cole had used
the phone, and is sufficient to support the DHO's
finding. Thus, Ground One does not identify a basis for
habeas corpus relief.
Ground Two, Cole argues that he did not receive proper notice
of the seizure of his property. He argues that he was not
notified of the date of the seizure, the name of the person
whose property was seized, identification of the property
seized, or the reason for the seizure. Cole had no due
process right to the detailed notification he identifies.
“Prison disciplinary proceedings are not part of a
criminal prosecution, and the full panoply of rights due a
defendant in such proceedings does not apply.”
Wolff v. McDonnell, 418 U.S. 539, 556 (1974). To the
extent that Cole alleges IDOC policy required these
notifications, IDOC policy is not relevant. “In
conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution,
laws, or treaties of the United States.” Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991). The IDOC's
failure to follow its own policy does not rise to the level
of a constitutional violation. See Id. at 68
(“state-law violations provide no basis for federal
Ground Three, Cole argues that he did not receive the Conduct
Report within 24-hours of the incident. Inmates are entitled
to receive 24-hours' advance notice of the factual
charges against them prior to their disciplinary hearing.
See Id. However, prisoners have no right to receive
notice of the charges within 24-hours' of the incident.
Here, Cole received notice of the charges against him on
February 17, 2017. His disciplinary hearing was held five
days later, on February 22, 2017. ...