Johnson v. Warden
OPINION AND ORDER: The court DENIES the habeas corpus petition 15 ; DIRECTS the clerk to enter judgment and close this case; and DENIES Devin Johnson leave to proceed in forma pauperis on appeal. Signed by Chief Judge Jon E DeGuilio on 2/16/2021. (Copy mailed to pro se party)(bas)
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
CAUSE NO. 3:18-CV-1040-JD-MGG
OPINION AND ORDER
Devin Johnson, a prisoner without a lawyer, filed a habeas corpus petition
challenging the disciplinary decision (MCF-18-09-433) at the Miami Correctional Facility
in which a disciplinary hearing officer (DHO) found him guilty of using or possessing a
cellphone in violation of Indiana Department of Correction Offense 121. Following a
disciplinary hearing, he was sanctioned with a loss of ninety days earned credit time
and a demotion in credit class.
Pierce argues that he is entitled to habeas relief because the hearing officer lacked
sufficient evidence to support a finding of guilt. He relies on his cellmate’s statement
that the cellphone belonged to him and that he took full responsibility. He also relies on
the absence of the cellphone in the administrative record.
[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
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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).
Departmental regulations define Offense 121 as the “unauthorized use or
possession of any cellular telephone or other wireless or cellular communications
device.” The administrative record includes a conduct report in which a correctional
officer represents that he found a cellphone wrapped in plastic in a plastic food
container during a search of Johnson’s cell. It included a photograph of the cellphone
and charger. It also included an investigator’s statement that the cellphone had been
used to contact two telephone numbers associated with Johnson. The conduct report
and the investigator’s statement constitute some evidence that Johnson possessed and
used a cellphone, and the hearing officer was not required to disregard this evidence or
to credit the cellmate’s statement to the contrary. Therefore, the claim that the hearing
officer lacked sufficient evidence for a finding of guilt is not a basis for habeas relief.
Johnson argues that he is entitled to habeas relief because the hearing officer did
not allow him to cross-examine his accusers. “[T]he inmate facing disciplinary
proceedings should be allowed to call witnesses and present documentary evidence.”
Wolff v. McDonnell, 418 U.S. 539, 566 (1974). By contrast, “[c]onfrontation and crossexamination present greater hazards to institutional interests,” and “adequate bases for
decision in prison disciplinary cases can be arrived at without cross-examination.” Id. at
567-68. Because there is no right to cross-examination in the prison disciplinary context,
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the claim that the hearing officer did not allow him to cross-examine his accusers is not
a basis for habeas relief.
Johnson argues that he is entitled to habeas relief because he did not receive
assistance from a lay advocate for his appeal. “[D]ue process [does] not require that the
prisoner be appointed a lay advocate, unless an illiterate inmate is involved or where
the complexity of the issue makes it unlikely that the inmate will be able to collect and
present the evidence necessary for an adequate comprehension of the case.” Miller v.
Duckworth, 963 F.2d 1002, 1004 (7th Cir. 1992). Johnson’s filings demonstrate his literacy,
and his charge of possessing or using a cellphone was not particularly complex.
Therefore, the argument that he received inadequate assistance from a lay advocate is
not a basis for habeas relief.
Because Johnson has not demonstrated that he is entitled to habeas relief, the
habeas petition is denied. If Johnson 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 the court finds pursuant to 28 U.S.C. §
1915(a)(3) that an appeal in this case could not be taken in good faith.
For these reasons, the court:
(1) DENIES the habeas corpus petition (ECF 15);
(2) DIRECTS the clerk to enter judgment and close this case; and
(3) DENIES Devin Johnson leave to proceed in forma pauperis on appeal.
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SO ORDERED on February 16, 2021
/s/JON E. DEGUILIO
UNITED STATES DISTRICT COURT
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