MILLER v. OLIVER et al

Filing 16

ENTRY denying amended petition for writ of habeas corpus and action dismissed. Judgment consistent with this Entry shall now issue. (copy to petitioner via US Mail) Signed by Judge Jane Magnus-Stinson on 11/20/2012.(SMD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
ROBERT E. MILLER,
vs.

Petitioner,

WARDEN JOHN OLIVER,
Respondent.

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2:12-cv-142-JMS-WGH

Entry Discussing Petition for Writ of Habeas Corpus
Robert Miller is confined in this District serving the executed portion of a
sentence imposed by the United States District Court for the Northern District of
Georgia. Miller filed the present action seeking relief pursuant to 28 U.S.C. § 2241.
He claims that a prison disciplinary proceeding is constitutionally infirm. The
operative document in which that claim is made is his amended petition for writ of
habeas corpus filed on September 6, 2012.
Whereupon the court, having considered the pleadings and the supplement
filed on October 26, 2012, and being duly advised, now finds that the relief sought
by the petitioner must be denied and that the action must be dismissed. This
conclusion rests on the following facts and circumstances:
1.
A federal court may issue a writ of habeas corpus pursuant to 28
U.S.C. ' 2241(c)(3) only if it finds the applicant Ais in custody in violation of the
Constitution or laws or treaties of the United States.@ See Miller v. Zych, 2010 WL
4175060 (W.D.Va. Oct. 22, 2010).
2.
AFederal courts are authorized to dismiss summarily any habeas
petition that appears legally insufficient on its face.@ McFarland v. Scott, 512 U.S.
849, 856 (1994).
3.
Miller is in the custody of the Federal Bureau of Prisons (ABOP@) and
challenges the proceedings associated with BOP Incident Report No. 2245160.
Certain particulars of that proceeding are the following:

a.
The incident report was issued on December 14, 2011, charging Miller
with “conduct which disrupts the orderly running of the institution most
like . . . attempted use of the mail for abuses to further criminal activity.”
b.

Miller received a copy of the incident report on December 14, 2011.

c.
Miller was supplied with notice of his procedural rights in connection
with the matter. Through this notice, Miller was informed of his procedural
rights in conjunction with the anticipated hearing.
d.
The DHO hearing was conducted on January 26, 2012. Miller was
present. He waived the opportunity to have a staff representative. Miller
made a statement concerning the charge.
e.
After considering that evidence, Miller was found guilty of the charged
offense. In support of this finding, the DHO found that during a search of
Miller’s cell on December 14, 2011, a “Bonded Promissory Note” in the
amount of $10,000.00, signed by Miller, made payable to Tina Hoppa and
drawn on the United States Treasury was discovered with printed
information to Tina Hoppa as to how to present that instrument to her
bank. This Bond was fabricated by Miller and was not authorized by the
United States Treasury. By fabricating the Bond and writing instructions
on how to negotiate it, Miller was using the mail to instruct Tina Hoppe on
how to commit a crime, that being committing fraud against the bank to
which the Bond would be presented. This is a misuse of the mail.
4.
The Due Process Clause of the Fifth Amendment imposes four
requirements on prison disciplinary committees: (1) prison officials must give the
prisoner advance written notice of the charges against him; (2) the disciplinary
hearing officer must give the prisoner the opportunity to present witnesses and
evidence in his defense; (3) the fact-finders must give the prisoner a written
statement of the evidence upon which they relied and the reasons for their decision;
and (4) the decision maker must be sufficiently impartial. Rasheed-Bey v.
Duckworth, 969 F.2d 357, 361 (7th Cir. 1992) (citing Superintendent v. Hill, 472
U.S. 445, 454 (1985); Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974)). In addition,
there is a substantive component to the issue, which requires that the decision of a
conduct board be supported by "some evidence." Hill. The Asome evidence@ standard
is less exacting than the preponderance of the evidence standard, requiring only
that the decision not be arbitrary or without support in the record. Id., 472 U.S. at
457. These protections are also contained BOP regulations. At the time pertinent to
the events described here, the regulations were found in 28 C.F.R. '' 541.10
through 541.23.
5.
It is undisputed here that Miller suffered the loss of a protected liberty
interest through the forfeiture of earned good time as a result of the charge issued
on December 14, 2011, and the ensuing hearing and decisions. Using the protections
recognized in Wolff and Hill as an analytical template, Miller received all the

process to which he was entitled associated with the proceeding which is challenged
here. That is, the charge was clear and adequate notice was given. 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 issued a sufficient
statement of her findings, and (3) the hearing officer issued a written reason for her
decision and for the sanctions which were imposed. The evidence was sufficient,
consisting of the account of the incident set forth in the incident report. Miller’s
quest to have the evidence re-weighed is outside the scope of a habeas court’s
inquiry in these circumstances. McPherson v. McBride, 188 F.3d 784, 786 (7th
Cir.1999)(“In reviewing a decision for some 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.”)
(internal quotations marks and citation omitted).
6.
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. "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 proceeding or
sanctions involved in the events identified in this action, and there was no
constitutional infirmity in the proceedings which entitles Miller to relief. The
amended petition for writ of habeas corpus shows on its face that Miller is not
entitled to the relief he seeks because there was no constitutional infirmity in the
challenged disciplinary proceeding. The amended petition for writ of habeas corpus
must therefore be denied and the action dismissed. Although the respondent has
appeared in the action, the proper disposition is evident from the foregoing and no
further briefing is warranted.
Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.

11/20/2012
Date: _________________
Distribution:
Robert E. Miller, Jr.
Reg. No. 48707-019
Federal Correctional Institution
P.O. Box 33
Terre Haute, IN 47808
Electronically registered counsel

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana