United States District Court, S.D. Indiana, Indianapolis Division
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND
DIRECTING ENTRY OF FINAL JUDGMENT
EVANS BARKER, JUDGE
petition of Gary Miller, Jr., for a writ of habeas corpus
challenges a prison disciplinary proceeding identified as No.
NCF 18-07-0149. For the reasons explained in this Order, Mr.
Miller's habeas petition must be denied.
in Indiana custody may not be deprived of good-time credits,
Cochran v. Buss, 381 F.3d 637, 639 (7th Cir. 2004)
(per curiam), 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
2, 2018, Casework Manager J. San Miguel filed a conduct
report charging Mr. Miller with interfering with count:
On the above day and approximate time [July 20, 2018 at 11:00
a.m.] Offender Miller, Gary #232853 was in the day room
getting water and using the microwave. Offender was told by
this cwm to return to his bunk and bring his Id.
Offender was informed he would be receiving conduct [report].
Offender said the pod told him count was clear.
23, 2018, the screening officer notified Mr. Miller of his
rights and the charge. Dkt. 9-2. Mr. Miller pleaded not
guilty. Id. He requested statements from three
witnesses, who he believed would say “someone yelled
count was clear.” Id. In response to his
request, inmate McClure wrote “Someone in pod yelled
count clear, Miller went to microwave to heat up coffee when
CWM saw him and told him count was not clear.” Inmate
Mayberry wrote “Ofd gary miller used the microwave
because several people yelled out count clear joking and he
thought they was being serious.” Offender French wrote
“offender Gary Miller used the microwave because
several people yelled out count cleared joking and Gary
thought count was really cleared so he used the microwave
thinking count was really cleared.” Dkt. 9-3.
disciplinary hearing was held on July 26, 2018. Mr. Miller
gave a statement: “I thought count was clear someone
yelled out count was clear.” Id. The hearing
officer considered staff reports, a memorandum from The GEO
Group, Inc. regarding count procedures, the statements of the
three witnesses, and Mr. Miller's statement, and found
Mr. Miller guilty based on this evidence. Id. The
hearing officer imposed sanctions of 30 days' lost
good-time credit and 30 days' lost commissary and phone
Miller appealed to the Facility Head and the IDOC Final
Reviewing Authority. Both appeals were denied. He then
brought this petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254.
Miller raises three grounds for relief in his petition: (1)
he cannot be guilty because he thought count was clear; (2)
his behavior of going to the microwave is not conduct which
meets the definition of the offense; and (3) his sanction
should have been suspended because this was his first conduct
report in six years. Dkt. 1. The first two grounds contest
the sufficiency of the evidence of Mr. Miller's guilt.
The third ground challenges the appropriateness of his