Cole v. Superintendent
OPINION AND ORDER DENYING 1 PETITION for Writ of Habeas Corpus filed by Petitioner Louis Cole. Clerk DIRECTED to close this case. Petitioner is DENIED leave to proceed in forma pauperis on appeal. Signed by Judge Rudy Lozano on 9/25/17. (Copy mailed to pro se party).(cer)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
CAUSE NO. 2:17-CV-167-RL-JEM
OPINION AND ORDER
This 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
Louis 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.
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
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 omitted).
The “some evidence” test is satisfied even if “no direct
evidence” exists. Hill, 472 U.S. at 457. Indirect evidence linking
requirement. See Hamilton v. O’Leary, 976 F.2d 341, 345 (7th Cir.
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).
Cole 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.”
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 messenger.
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.
The DHO 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 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.
In 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
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 habeas relief”).
In Ground Three, Cole argues that he did not receive the
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. Thus, his due
process right to advance notice was satisfied and Ground Three
does not identify a basis for granting habeas corpus relief.
If Cole wants to appeal this decision, he does not need a
certificate of appealability because he is challenging a prison
disciplinary proceeding. See Evans v. Circuit Court, 569 F.3d 665,
666 (7th Cir. 2009). However, he may not proceed in forma pauperis
on appeal because pursuant to 28 U.S.C. § 1915(a)(3) an appeal in
this case could not be taken in good faith.
For the reasons set forth above, 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.
DATED: September 25, 2017
/s/Rudy Lozano, Judge
United States District Court
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