MILLER v. LEMMON

Filing 20

ENTRY Discussing Petition for Writ of Habeas Corpus; For reasons explained in this Entry, the petition for a writ of habeas corpus must be denied and the action dismissed. Judgment consistent with this Entry shall now issue. (See Entry for details) Signed by Judge Jane Magnus-Stinson on 8/15/2011. (NKD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

MIGUEL MILLER,
Petitioner,
v.
BRUCE LEMMON,
Respondent.

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No. 2:11-cv-027-JMS-WGH

Entry Discussing Petition for Writ of Habeas Corpus
Miguel Miller is entitled to the writ of habeas corpus he seeks with respect to the
disciplinary proceeding he challenges only if the court finds that he Ais in custody in
violation of the Constitution or laws or treaties of the United States.@ 28 U.S.C. '
2254(a). Because he has not made such a showing, his petition for a writ of habeas
corpus must be denied.
Background
The pleadings and the expanded record in this action establish the following:
1.
Miller is confined at an Indiana prison. In a proceeding identified as No.
ISF 10-10-0077, he was charged with trafficking. This charge was based on an incident
which occurred on October 9, 2010.
2.
Miller was provided with a copy of the charge and notified of his
procedural rights in connection with the matter. A hearing was conducted on October
19, 2010, at which Miller was present and made a statement. After considering this
statement and the other evidence including staff reports, the video review report and the
backup statement, the hearing officer found Miller guilty of attempted trafficking. He was
then sanctioned.

3.
At the first level of his administrative appeal, Miller=s conviction was
affirmed and his appeal was denied by Superintendent Lemmon. Superintendent
Lemmon did not reduce the sanction imposed by the hearing officer.
4.
At the second level of his administrative appeal, Miller’s conviction was
affirmed. However, the Final Reviewing Authority, Mr. Penfold, first reduced the earned
credit time deprivation to 60 days, and after further review reduced the earned credit
time deprivation to 30 days.
5.
Miller now contends that the disciplinary proceeding is tainted by
constitutional error. His specific claims are that: 1) there was insufficient evidence to
support his conviction; 2) the offense charged was modified at his hearing; and 3) his
hearing was improperly postponed.
Discussion
When a prison disciplinary proceeding results in a sanction which affects the
expected duration of a prisoner=s confinement, typically through the deprivation of
earned good-time credits or the demotion in credit earning class, the state may not
deprive the inmate of good-time credits without ensuring that the credits are not
arbitrarily rescinded and habeas corpus is the proper remedy. Cochran v. Buss, 381
F.3d 637, 639 (7th Cir. 2004).
"Prison disciplinary 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). In these circumstances, Miller was entitled to the
following process before being deprived of his liberty interests: (1) advance (at least 24
hours before hearing) written notice of the claimed violation; (2) the opportunity to be
heard before an impartial decision maker; (3) the opportunity to call witnesses and
present documentary evidence (when consistent with institutional safety); and (4) a
written statement by the fact-finder of the evidence relied on and the reasons for the
disciplinary action. Rasheed-Bey v. Duckworth, 969 F.2d 357, 361 (7th Cir. 1992). In
addition, there is a substantive component to the issue, which requires that the decision
of a hearing officer be supported by "some evidence." Superintendent v. Hill, 472 U.S.
445 (1985).
AThe best way to conduct analysis under ' 2254 is to assume that the state
wants to act exactly as its officers . . . have done, and then ask whether the federal
Constitution countermands that decision.@ Hill v. Wilson, 519 F.3d 366, 370 (7th Cir.
2008) (citing cases). Under Wolff and Hill, Miller received all the process to which he
was entitled. That is, the charge was clear, adequate notice was given, and the
evidence was sufficient. In addition, (1) Miller was given the opportunity to appear
before the hearing officer and make a statement concerning the charge, (2) the hearing
officer and Superintendent Lemmon issued sufficient statements of their findings, and
(3) the hearing officer and Superintendent Lemmon issued written reasons for their
decisions and for the sanctions which were imposed.

Miller=s arguments that he was denied the protections afforded by Wolff and Hill
are either refuted by the expanded record or based on assertions which do not entitle
him to relief.
!

Miller=s first claim is that there was insufficient evidence to support his attempted
trafficking conviction. His second claim is that he was initially written up for
trafficking and it was modified to attempting to traffic at his hearing even though
“[n]othing was recovered in the facility, nor on my, or Ms. Hetterschiedt’s person,
therefore nothing was either traffic[k]ed, or attempted.” ATrafficking @ is defined by
the applicable prison code as: AEngaging in trafficking (as defined in IC 35-44-39) with anyone who is not an offender residing in the same facility@ and
“Conspiracy/Attempting/Aiding or Abetting” is “Attempting or conspiring or aiding
and abetting with another to commit any Class A offense.” The evidence
Superintendent Lemmon considered was sufficient in this case. He considered
the staff report, the offender statement, the back-up statement, the segregation
report and the video review report. From these sources he concluded that Miller
accepted a package passed off to him by a visitor. In finding the evidence
constitutionally sufficient under Hill, the court does not accord Superintendent
Lemmon=s findings a presumption of correctness, but only examines the record
to determine whether the evidence was insufficient as a matter of law.
Henderson v. United States Parole Comm'n, 13 F.3d 1073, 1077 (7th Cir. 1993)
(a federal habeas court "will overturn the . . . [conduct board=s] decision only if no
reasonable adjudicator could have found . . . [the petitioner] guilty of the offense
on the basis of the evidence presented"). Although the evidence before the
hearing officer must "point to the accused's guilt," Lenea v. Lane, 882 F.2d 1171,
1175 (7th Cir. 1989), Aonly evidence that was presented to the Adjustment
Committee is relevant to this analysis.@ Hamilton v. O'Leary, 976 F.2d 341, 346
(7th Cir. 1992); see also Hill, 472 U.S. at 457 ("The Federal Constitution does not
require evidence that logically precludes any conclusion but the one reached by
the disciplinary board."). The evidence here was constitutionally sufficient.

!

Miller’s third claim is that his hearing was improperly postponed. The expanded
record shows that this claim was not included in Miller=s administrative appeal.
This claim has therefore not been preserved for consideration here. Eads v.
Hanks, 280 F.3d 728, 729 (7th Cir. 2002); Markham v. Clark, 978 F.2d 993, 995
(7th Cir. 1992). Miller could overcome this procedural default through a showing
of cause and prejudice or that a fundamental miscarriage of justice would result if
the merits of his claim are not reached. Aliwoli v. Gilmore, 127 F.3d 632, 634 (7th
Cir. 1997) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)). Despite
Miller’s arguement: “Athough Petitioner may have failed to exhaust his appeal of
this evidence on the initial claim, but [sic] that doesn’t allow the Hearing Board to
break their own rules,” he has not, however, made a showing to overcome his
procedural default. Apart from this procedural impediment, moreover, this final
claim is simply that a prison policy was violated. The mere violation of a prison
policy does not constitute even a cognizable claim under § 2254. Evans v.

McBride, 94 F.3d 1062 (7th Cir. 1996); Colon v. Schneider, 899 F.2d 660, 672-73
(7th Cir. 1990); see also Del Vecchio v. Illinois Dept. of Corrections, 31 F.3d
1363, 1370 (7th Cir. 1994)(habeas corpus jurisdiction is limited to evaluating
alleged violations of federal statutory or constitutional law), cert. denied, 516 U.S.
983 (1995). Miller is not entitled to relief based on this third claim.
"The touchstone of due process is protection of the individual against arbitrary action of
the government." Wolff, 418 U.S. at 558. There was no arbitrary action in any aspect of
the charge, disciplinary proceedings, or sanctions involved in the events identified in this
action, and there was no constitutional infirmity in the proceeding which entitles Miller to
the relief he seeks. McPherson v. McBride, 188 F.3d 784, 787 (7th Cir. 1999)(Aas long
as procedural protections are constitutionally adequate, we will not overturn a
disciplinary decision solely because evidence indicates the claim was fraudulent.@).
Miller’s argument that the administrative modification of his sanctions was not proper
once this action had been filed is unpersuasive. Macktal v. Chao, 286 F.3d 822, 825
(5th Cir. 2002)(A[I]t is generally accepted that in the absence of a specific statutory
limitation, an administrative agency has the inherent authority to reconsider its
decisions.@) (collecting cases). Accordingly, his petition for a writ of habeas corpus must
be denied and the action dismissed. Judgment consistent with this Entry shall now
issue.
IT IS SO ORDERED.

08/15/2011
Date: ___________________
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana