Nelson v. Superintendent

Filing 17

OPINION AND ORDER: The court DENIES the petition (DE 1 ). The clerk is DIRECTED to close this case. Signed by Judge Rudy Lozano on 1/23/2017. (lhc)(cc: Nelson)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ANDRE NELSON,

)
)
)
)
)
)
)
)
)

Petitioner,
v.
SUPERINTENDENT,
Respondent.

Case No. 3:15-CV-280

OPINION AND ORDER
This matter is before the Court on a Petition under 28 U.S.C.
Paragraph 2254 for Writ of Habeas Corpus by a person in State
Custody Seeking Review of a Prison Disciplinary Sanction, filed by
Andre Nelson, a pro se prisoner, on July 6, 2015. Here, Nelson
challenges a disciplinary determination made by a hearing officer
at the Pendleton Correction Facility (“Pendleton”) under case
number ISR 15-02-0007. For the reasons set forth below, the court
DENIES the petition (DE 1). The clerk is DIRECTED to close this
case.

BACKGROUND
On
Peterson

January

30,

prepared

2015,
a

Internal

conduct

Affairs

report

Investigator

charging

Nelson

W.C.
with

trafficking. (DE 4-1.) The conduct report stated, in relevant part,
as follows:
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On January 30, 2015 at approximately 8:45 A.M. I – Mr. W.
C. Peterson – (Internal Affairs [In]vestigator IV /
Correctional Police Officer) reviewed a letter written by
Offender Nelson, Andre 934979 which was mailed out of the
Pendleton Correctional Facility via the United States
Postal Service. [The] above mentioned letter was not able
to be delivered and was returned to the sender who was
Offender Nelson 934979. In the letter Offender Nelson
writes the following statements. “Fam-O I know it’s been
six (6) months since I put money on that Rush Card we
have yet to receive the money…. I have some
info for you to get direct access to a representative
with Green Dot…. You must let them know, according to
their policy, you feel it should not taken [sic] that
long for you to have your money five hundred dollars
($500.00) refunded. Why? Because of this policy of
recording all calls they can see from their (policy) you
put five hundred dollars ($500.00) on an old card which
allowed you to load it and clarified the money was loaded
by pressing 1 (one) and the last four (4) digits of your
old card clarified it was loaded to that card…. Fam-O,
it’s to [sic] late in the game to allow Green Dot to get
away with not refunding my money…. After you do this, you
should be able to get someone from Green Dot to take a
serious look at getting my money back. Please do all that
I request in this letter when you don’t have to work FamO. Trust me, this will work and when you talk to these
people, be very assertive and act highly upset because
you were unable to pay your bills on time and you have
two (2) kids under the age of two years old you have to
provide for. Please, be patient and stick to the script
I gave you and we will have my money in a month. Just
follow the blue print I just gave you. I provided all the
info you need.
(Id.) Nelson’s letter and envelope were entered as evidence. (DE 43.)
On February 6, 2015, Nelson was transferred to Westville
Correctional Facility (“Westville”). On February 16, 2015, Nelson
was notified of the charge of attempting to traffic and served with
a copy of the conduct report and the screening report. (DE 4-4.)
The screening report reflects that he pled not guilty, did not
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request a lay advocate or to call any witnesses. He asked for a
copy of the evidentiary record, but did not request to present any
other physical evidence. (Id.)
On

February

17,

2015,

a

hearing

officer

conducted

a

disciplinary hearing and found Nelson guilty of the charge of
attempting to traffic. (DE 4-5.) At the hearing, Nelson’s comment
was, “I never received a confiscation slip for the letter. I never
knew I was under investigation. The lady in the mail room Ms.
Peterson, is not listed as a witness.” (Id.) Relying on staff
reports, Nelson’s statement and the letter, the hearing officer
imposed a penalty of 60 days lost earned time credits and demoted
him from credit class 1 to credit class 2. (Id.) The hearing
officer stated his reason for the decision, “Offender made numerous
references to the money as his. Also last part of letter states,
‘Please be patient and stick to the script I gave you and we’ll
have my money in a month.’” (Id.) Nelson appealed to the facility
head and the final reviewing authority, but his appeals were
denied. (DE 4-6; 4-7; 4-8.)

DISCUSSION
When

prisoners

lose

earned

time

credits

in

a prison

disciplinary hearing, they are entitled to certain protections
under the Due Process Clause: (1) advance written notice of the
charges; (2) an opportunity to be heard before an impartial

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decision maker; (3) an opportunity to call witnesses and present
documentary evidence in defense when consistent with institutional
safety and correctional goals; and (4) a written statement by a
fact

finder

of

evidence

relied

on

and

the

reasons

for

the

disciplinary action. Wolff v. McDonnell, 418 U.S. 539, 563 (1974).
To satisfy due process, there must also be “some evidence” to
support the hearing officer’s decision. Superintendent, Mass. Corr.
Inst. v. Hill, 472 U.S. 445, 455 (1985).
Here, Nelson raises three claims in his petition: (1) he was
denied a staff witness; (2) there was insufficient evidence to
support the conviction; and (3) he was denied an impartial hearing
officer.1
First, Nelson argues that he was denied the opportunity to
call a mail room staff member as a witness. A prisoner has a
limited right to call witnesses and present documentary evidence
consistent with correctional goals and safety, but she cannot wait
until the hearing to request such evidence.

Sweeney v. Parke, 113

F.3d 716, 719-20 (7th Cir. 1997) (where prisoner had opportunity to
request witnesses when he was notified of the disciplinary hearing
and chose not to, prisoner’s limited right to call witnesses was

1

The respondent argues that Nelson’s claims are procedurally defaulted
because they were not presented to the Final Reviewing Authority. Moffat v.
Broyles, 288 F.3d 978, 982 (7th Cir. 2002). Though the court agrees that some
of Nelson’s claims are procedurally defaulted, “[a]n application for a writ of
habeas corpus may be denied on the merits, notwithstanding the failure of the
applicant to exhaust the remedies available. . ..” 28 U.S.C. § 2254(a)(2).
Thus, the court will nevertheless address the merits of Nelson’s claims.

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fulfilled and his due process rights were not violated), overruled
on other grounds by White v. Ind. Parole Bd., 266 F.3d 759, 765-66
(7th Cir. 2001). Notably, Nelson had the opportunity to request
evidence and witnesses before the hearing. However, the screening
report reveals that Nelson did not request any mail room staff
member to be a witness at the hearing. (DE 4-4). Instead, it
appears Nelson waited for the hearing to convene to ask for a
continuance and get a witness statement from the mail room staff.
This was denied. However, the denial of Nelson’s day-of-hearing
request did not deny him the opportunity to present evidence or
witnesses.2 Piggie v. McBride, 277 F.3d 922, 924-25 (7th Cir.
2002);

Sweeney

v.

Parke,

113

F.3d

716,

720

(7th

Cir.

1997)

(overruled on other grounds by White v. Indiana Parol Bd., 266 F.3d
759 (7th Cir. 2001)).
Nevertheless, in his traverse, Nelson asserts that after he
was notified of the charge, but before the hearing, he requested
the mail room staff worker who confiscated his incoming mail as a
witness. (DE 13 at 6.) The respondent disputes that Nelson ever
made such a request. Even assuming Nelson did request the staff
member provide a witness statement, this does not change the
Court’s conclusion. An inmate has a constitutional right to present
relevant, exculpatory evidence during a prison disciplinary hearing

2

This is especially true as the court has found that any witness
statement from the mail room staff member would not have been exculpatory.

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which extends the duration of his confinement. Wolff v. McDonnell,
418 U.S. 539, 566 (1974). However, due process only requires access
to witnesses and evidence that are exculpatory. Rasheed-Bey v.
Duckworth, 969 F.2d 357, 361 (7th Cir. 1992). Exculpatory in this
context means evidence which “directly undermines the reliability
of the evidence in the record pointing to [the prisoner’s] guilt.”
Meeks v. McBride, 81 F.3d 717, 721 (7th Cir. 1996).
Nelson claims that the mail room staff member would have
stated that “she was the one who read Nelson’s out-going mail per
policy and approved it to go out because it was not a violation of
D.O.C. policy.” (DE 13 at 7.) Notably, the mail room staff member
could only testify regarding the receipt and contents of the
returned letter. The hearing officer was already aware of this
information based on the conduct report and the returned letter
itself. Thus, there was not exculpatory value to the mail room
staff member.

Jones v. Cross, 637 F.3d 841, 847 (7th Cir. 2011) (a

prisoner is only entitled to habeas relief if the erroneous denial
of evidence was harmful and caused actual prejudice). Consequently,
Nelson is not entitled her to federal habeas relief on this ground.
Estelle, 502 U.S. at 67-68.
Second, Nelson complains that he was denied an impartial
hearing officer.

In the prison disciplinary context, adjudicators

are “entitled to a presumption of honesty and integrity,” and “the
constitutional standard for improper bias is high.” Piggie, 342

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F.3d at 666. Due process prohibits a prison official who was
personally and substantially involved in the underlying incident
from acting as a decision-maker in the case. Id. However, due
process is not violated simply because the hearing officer knew the
inmate, presided over a prior disciplinary case, or had some
limited involvement in the event underlying the charge. Id.
Here, Nelson believes that the hearing officer was generally
biased, but there is no indication that he was involved in any way
in the events underlying the charge. He appears to believe the
hearing officer was impartial because the officer made adverse
rulings against him. But adverse rulings alone do not establish
impermissible bias. Liteky v. United States, 510 U.S. 540, 555–56
(1994). Nelson complains that the hearing officer found him guilty
without sufficient evidence, did not allow him to call the mail
room staff member as a witness and allowed a lay advocate be
present in the hearing when Nelson did not request one. However,
none of these things warrant habeas relief.
Third, Nelson claims there was insufficient evidence to find
him guilty of attempting to traffic. In reviewing a disciplinary
determination for sufficiency of the 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.

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McBride, 188 F.3d 784, 786 (7th Cir. 1999). “[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). The court will
overturn the hearing officer’s decision only if “no reasonable
adjudicator could have found [the prisoner] guilty of the offense
on the basis of the evidence presented.” Henderson v. United States
Parole Comm'n, 13 F.3d 1073, 1077 (7th Cir. 1994). Additionally, a
hearing officer is permitted to rely on circumstantial evidence to
establish guilt. See Hamilton v. O’Leary, 976 F.2d 341, 345 (7th
Cir. 1992).
Nelson was found guilty of attempting to traffic in violation
of disciplinary rules 111/113.

Class A offense #111 is defined as

“[a]ttempting or conspiring or aiding and abetting with another to
commit any Class A offense.” (DE 9-6, Ex. G3.)

Class A offense

#113, prohibits trafficking with anyone who is not an offender
residing in the same facility. (Id. at G4.) In this case, it is
clear

that

the

record

in

this

case

contains

at

least

“some

evidence” to support the hearing officer’s determination that
Nelson was guilty of attempted trafficking. The conduct report and
Nelson’s letter are some evidence that Nelson attempted to traffic.
McPherson, 188 F.3d at 786 (7th Cir. 1999) (conduct report alone
provided some evidence to support disciplinary determination). The
evidence showed that Nelson planned with his friend Fam-O to send

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and

receive

money

by

using

a

Green

Dot

card.

The

letter

demonstrated an attempt for Fam-O to get a refund of Nelson’s money
from Greed Dot and have it returned to Nelson. This is trafficking.
Ind. Code § 35-44.1-3-5(b).

Although Nelson denies that he

attempted to traffic, it is not the province of this court to reweigh evidence. Because there is some evidence to support the
hearing officer’s determination, there is no basis for granting
habeas relief on this ground.

CONCLUSION
For the reasons set forth above, the court DENIES the petition
(DE 1). The clerk is DIRECTED to close this case.

DATED: January 23, 2017

/s/RUDY LOZANO, Judge
United States District Court

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