MILIAN v. KNIGHT
ENTRY Discussing Need for Evidentiary Hearing or Vacation of Disciplinary Sanctions. The respondent has through June 22, 2017, in which to inform the Court how this action should proceed. If a hearing is necessary, the Court will appoint counsel, schedule the hearing, and set discovery deadlines by separate order. (S.E.). Signed by Judge Sarah Evans Barker on 5/30/2017.(MAC)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
WENDY KNIGHT Superintendent,
Entry Discussing Need for Evidentiary Hearing or Vacation of Disciplinary Sanctions
The petition of Anthony Milian for a writ of habeas corpus challenges a prison disciplinary
proceeding identified as No. CIC 16-01-0085. Mr. Milian set forth four bases for relief in his
habeas petition, one of which is discussed in this Entry – namely, that he was denied the right to
present evidence to an impartial decision maker.
Prisoners in Indiana custody may not be deprived of credit time, Cochran v. Buss, 381 F.3d
637, 639 (7th Cir. 2004), or of credit-earning class, Montgomery v. Anderson, 262 F.3d 641, 64445 (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).
B. The Disciplinary Proceeding
On January 12, 2016, Investigator J. Poer wrote a Report of Conduct in case CIC 16-
01-0085 charging Mr. Milian with use of a cellular device. The Conduct Report states:
On 10/19/15 a cellular telephone was recovered during a search of an offender in C
Unit. I, Investigator J. Poer, requested a subpoena for a Call Detail Records for the
confiscated cellphone. The Call Detail Records contained a listing of all calls made
to and from the confiscated cellphone between 7/29/15 and 10/19/15. I compared
the numbers from the confiscated cellphone to the inmate GTL Phone System.
Phone number 847-505-4259 was called on 8/2/15 from the confiscated cellphone.
This number is on the GTL Phone System as being called by Offender Anthony
Milian 170293 24A-C4. The Offender who was in possession of the cellphone has
never called phone number 847-505-4259. It is common knowledge that offenders
who have access to a cellphone allow multiple offenders to use the phone in return
for payment. I have concluded through my investigation that Offender Milian is in
violation of A121 “Use of a Cellular Telephone.”
On January 14, 2016, Mr. Milian was notified of the charge and was given a copy of the
Conduct Report and the Notice of Disciplinary Hearing “Screening Report.” He was notified of
his rights and pled not guilty. He requested a lay advocate but, according to the Screening Report,
did not request a witness. He also did not request any physical evidence. [Dkt. 11-2].
The Hearing Officer conducted a disciplinary hearing in case CIC 16-01-0085 on March
27, 2016. At the hearing Mr. Milian provided the following statement:
I was denied evidence at screening. I never used this cell phone. The alleged phone number
is not connected to me on the alleged date of conduct report. [Dkt. 11-4].
The Hearing Officer found Mr. Milian guilty of the charge of use of a cell phone. In making
this determination, the Hearing Officer considered the staff reports and the physical evidence.
[Dkt. 11-4]. Based on the Hearing Officer’s recommendations the following sanctions were
imposed: forty-five (45) days of lost commissary and phone; 90 days disciplinary segregation; 90
days of credit time deprivation; and a demotion from credit class 1 to credit class 2. The Hearing
Officer recommended the sanctions because of the seriousness of the offense, the frequency and
nature of the offense, the degree to which the violation disrupted and endangered the security of
the facility, and the likelihood of the sanction having a corrective effect on the offender’s future
behavior. [Dkt. 11-4].
Mr. Milian appealed to the Warden arguing that there was no witness statement from the
inmate found in possession of the cellular telephone and as such he was unable to call this
individual as a potential exculpatory witness. He also argued the evidence was insufficient to
support a guilty finding because he was denied potential exculpatory evidence in that he was never
shown the evidence the Hearing Officer relied on in finding Mr. Milian guilty, i.e. the subpoenaed
cellular records showing the numbers called on the confiscated cellular phone. Mr. Milian argued
that the number found in the cellular records that was also on his telephone list was not in fact on
his telephone list during the time period it was called from the cellular phone. [Dkt. 11-5].
The Warden denied the appeal without addressing Mr. Milian’s contentions. [Dkt. 11-6].
His appeal to the final reviewing authority was also denied. [Dkt. 11-7].
In the petition, Mr. Milian reiterated the contentions from his administrative appeals. Once
more he claims he was denied due process because he was not allowed to call the potentially
exculpatory witness that was found in possession of the cellular phone and he was denied
exculpatory evidence when he was not permitted to review the subpoenaed telephone records to
show the number found on the phone was not on his telephone call list when it was called from
the confiscated cellular phone. 1
Mr. Milian also argues the Indiana Department of Correction Policy and Procedures were
violated. The Court does not discuss this argument.
In grounds two, three, and four, Mr. Milian argues he was denied a witness and evidence. 2
The State responded to this argument by stating that “there is no indication on the Screening Report
that Milian did attempt to request a witness statement or evidence or that any such requests were
denied.” [Dkt. 11, at pg. 7]. They based this response on the fact he did not check any boxes on
the screening report. However, Mr. Milian states the screening officer falsified the screening report
by checking the box that he did not wish to call any witnesses and that he did not wish to produce
documentary evidence. [Dkt. 1; 11-2]. This presents a dispute of fact. If the State is correct, then
Mr. Milian has received due process. If Mr. Milian is correct, then he was denied due process.
Evidence may be excluded for reasons of security, but the State has not argued that security
concerns prevented Mr. Milian from calling as a witness the offender that was found in possession
of the cellular device. Mr. Milian has sworn under penalties of perjury that he requested the witness
testimony of the offender found in possession of the cellular phone.
Prison disciplinary boards are entitled to resolve conflicts in stories presented to them, as
long as some evidence supports the decision. Hill, 472 U.S. 445. However, they are not permitted
to prevent the prisoner from offering material evidence. If Mr. Milian is telling the truth, they
denied him access to material witness testimony.
“[W]hen a prisoner who seeks a writ of habeas corpus provides competent evidence (such
as an affidavit by someone with personal knowledge of the events) contradicting an assertion by
the prison disciplinary board on a material question of fact pertinent to an issue of constitutional
The telephone records show that the calls to the phone number on the cellular phone of the same
number that appears on Mr. Milian’s telephone call list occurred on August 2, 2015. This number
appears on Mr. Milian’s telephone call list 22 times between March of 2015 and September of
2015. [Dkt. 11-1, at pp. 2-3]. As such, Mr. Milian’s argument that the records would show the
number did not appear on his telephone call list is undermined by the evidence. However, this does
not resolve the other problems this Court finds with the production of witness testimony on behalf
of Mr. Milian.
law, the district court must hold an evidentiary hearing to determine where the truth lies.” Johnson
v. Finnan, 467 F.3d 693, 694 (7th Cir. 2006). The issue for an evidentiary hearing is the factual
dispute regarding whether Mr. Milian requested a witness during the screening process. At the
hearing, the Court would also have to examine what the testimony would have been and whether
it was exculpatory since this question cannot be answered on the record before the Court.
The respondent could obviate the need for a hearing if she vacated the disciplinary
proceedings at issue in this action and the corresponding sanctions, and if she chooses set the
matter for re-hearing. Otherwise, the Court will set this matter for an evidentiary hearing on the
question outlined above and appoint counsel for Mr. Milian. See Rule 8 of the Rules Governing
Section 2254 Cases. (“If an evidentiary hearing is warranted, the judge must appoint an attorney
to represent a petitioner who qualifies to have counsel appointed under 18 U.S.C. § 3006A.”). The
respondent has through June 22, 2017, in which to inform the Court how this action should
proceed. If a hearing is necessary, the Court will appoint counsel, schedule the hearing, and set
discovery deadlines by separate order.
IT IS SO ORDERED.
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana
Marjorie H. Lawyer-Smith
INDIANA ATTORNEY GENERAL
PENDLETON - CIF
CORRECTIONAL INDUSTRIAL FACILITY
Electronic Service Participant – Court Only
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