United States Court of Appeals 

For the Seventh Circuit 

Chicago, Illinois 60604 

Submitted March 26, 2021*

Decided March 26, 2021 

Before 

FRANK H. EASTERBROOK, Circuit Judge 

DAVID F. HAMILTON, Circuit Judge 

MICHAEL B. BRENNAN, Circuit Judge

No. 20-2079 

OSCAR PEREZ, 

Petitioner-Appellant, 

v. 

ROBERT CARTER, 

 Respondent-Appellee. 

 

Appeal from the United States District 

Court for the Southern District of Indiana, 

Terre Haute Division. 

No. 2:19-cv-00401-JRS-MJD 

James R. Sweeney II, 

Judge. 

O R D E R 

 Oscar Perez, a prisoner at the Wabash Valley Correctional Facility in Carlisle, 

Indiana, during the relevant period, brought a petition under 28 U.S.C. § 2254 

challenging a disciplinary conviction. The parties agree that the disciplinary hearing 

officer violated his due process rights by failing to secure the in-person testimony of an 

allegedly exculpatory witness whose presence Perez had properly requested. The 

*

 We have agreed to decide the case without oral argument because the briefs and 

record adequately present the facts and legal arguments, and oral argument would not 

significantly aid the court. FED. R. APP. P. 34(a)(2)(C). 

NONPRECEDENTIAL DISPOSITION 

To be cited only in accordance with 

Fed. R. App. P. 32.1 
No. 20-2079 Page 2 

district court, however, denied Perez’s petition on the ground that the violation did not 

prejudice him and was therefore harmless. Because Perez did not explain how the live 

testimony could have changed the outcome, we affirm. 

Perez was charged in a conduct report with violating an Indiana Department of 

Correction rule prohibiting unauthorized financial transactions. See IND. DEP’T OF CORR.,

MANUAL OF POL’YS & PROCS., No. 04-01-104, § IX. That provision precludes “the 

discussion of engaging in unauthorized transaction(s) with any other person.” 

Id. No. 02-04-101, App. I, § 220. The charge resulted from three phone calls that Perez 

placed to a woman outside of the facility over the course of four days. The conduct 

report characterized the dialogue as “discussing unauthorized financial transactions.” 

During the first phone call, Perez asked the woman to send a message to a phone 

number associated with another inmate, Ulises Ledo. He directed her to say that she 

was “hollerin at em for Ole’ man” and to “ask them for the same thing” as “last time.” 

Two days later, the woman told Perez that she received a reply “asking for details and 

stuff.” The following day, the woman told Perez, “Dude, you need to tell your people 

um, they, they got really rude with me.” When Perez asked what happened, she 

replied, “They cussed me out practically. They was like ‘Hey yo, next time you send me 

money, send me the f-ing name.’” She continued saying, “And I don’t even know who 

sent the money.” After Perez asked, “Didn’t ask Sally?” the woman replied, “No, I 

mean I did ask Sally but by that time they already had the money.” 

On his disciplinary hearing notice, Perez identified Ledo as a witness he wished 

to call. Ledo did not testify, however, and no record, including the hearing officer’s 

report, explains Ledo’s absence. The hearing officer did, however, consider a written 

statement from Ledo that said: “As far as I’m aware Mr. Perez did not send me any 

money.” 

At the disciplinary hearing, Perez testified that the third call, the only one in 

which anyone explicitly mentioned money, was not connected to the previous two but 

instead was about family issues. He pointed out that he never asked the woman to send 

money and that the third call shows she never did, on his or anyone else’s behalf. After 

considering the conduct report, Perez’s statements, the phone logs, and Ledo’s written 

statement, the hearing officer found Perez guilty and sanctioned him with, among other 

penalties, the loss of 45 days of good-time credit. 

After his appeals were denied, Perez filed a petition for habeas corpus under 

§ 2254, alleging that his due process rights were violated because insufficient evidence 
No. 20-2079 Page 3 

supported the disciplinary officer’s findings, his witness was not present to testify in 

person, and the hearing officer was not impartial. The district court denied the petition. 

It concluded that the hearing officer’s decision was not arbitrary because the phone 

conversations provided “some evidence” of Perez’s guilt, see Superintendent, Mass. Corr. 

Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985); Ellison v. Zatecky, 820 F.3d 271, 274 (7th Cir. 

2016), and that there was no evidence that the decisionmaker was biased. The court 

further concluded that the hearing officer erred by finding Perez guilty without 

explaining why Ledo was not called as a witness. Carter raised a harmless-error 

argument, and because Perez did not show that the testimony would have gone beyond 

Ledo’s written statement, the court found that he had not shown the required prejudice. 

On appeal, Perez challenges only the district court’s conclusion that not 

procuring Ledo’s in-person testimony was a harmless error, and therefore we review 

only this portion of the court’s decision. See United States v. Webster, 775 F.3d 897, 904 

(7th Cir. 2015). Indiana prisoners may not be deprived of good-time credits without due 

process. Ellison, 820 F.3d at 274. This includes the right to call a witness during a 

disciplinary hearing. Id.; Whitlock v. Johnson, 153 F.3d 380, 385 (7th Cir. 1998) (citing 

Wolff v. McDonnell, 418 U.S. 539, 566 (1974)). But an erroneous decision to deny witness 

testimony is subject to harmless-error review, so the aggrieved prisoner must 

demonstrate that the deprivation prejudiced his defense. Jones v. Cross, 637 F.3d 841, 847 

(7th Cir. 2011). 

In his opening brief, Perez asserts that he was prejudiced by not being able to 

develop Ledo’s testimony at the hearing. As he did in the district court, he contends 

that Ledo would have clarified the content of the text message that Perez asked the 

woman to send to the phone number associated with Ledo in the first conversation. But 

Perez provides no details or any explanation of how such a clarification could have 

exculpated him. 

As Carter concedes, a written statement is not an equal substitute for in-person 

testimony, so denying a live witness without explanation violates the due process 

requirements articulated in Wolff v. McDonnell, 418 U.S. 539 (1974). See Ponte v. Real, 

471 U.S. 491, 497 (1985); Whitlock, 153 F.3d at 388–89. Wolff holds that calling witnesses 

should be allowed if it “will not be unduly hazardous to institutional safety or 

correctional goals.” 418 U.S. at 566. But, Carter argues, the error was harmless because 

Ledo’s testimony could not have changed the outcome. Assuming that Ledo would 

have again denied receiving money from Perez, Carter says the denial is irrelevant 
No. 20-2079 Page 4 

because Perez’s mere discussion of a transaction, as described in the conduct report, is 

enough to sustain a conviction. See Jones, 637 F.3d at 847. 

In reply, Perez elaborates that Ledo would have testified that Perez was not 

discussing sending money in the first two calls; he was facilitating communication 

between Ledo and his family as they attempted to send him a care package. But, despite 

having been prompted to demonstrate prejudice, Perez did not offer this explanation to 

the district court, or in his opening brief, and so this argument is waived. Henry v. 

Hulett, 969 F.3d 769, 787 (7th Cir. 2020) (en banc). Further, Perez could have given that 

explanation himself at the disciplinary hearing. Instead, he testified without explanation 

that the first two calls were not related to the third call mentioning money. 

Based on the bare argument that Ledo would have “clarified” Perez’s 

communications, the district court did not err in concluding that any error by the 

hearing officer was harmless. A showing of prejudice turns on the details that the 

inmate provides about the unpermitted testimony. Compare Piggie v. Cotton, 344 F.3d 

674, 677–78 (7th Cir. 2003) (no prejudice when there was no indication what the 

testimony would have been), with Donelson v. Pfister, 811 F.3d 911, 918 (7th Cir. 2016) 

(prejudice shown when inmate explained that the witness would have testified about 

the specifics of his interaction with a corrections officer), and Pannell v. McBride, 306 F.3d 

499, 503 (7th Cir. 2002) (prejudice shown when inmate said two corrections officers 

would have testified that during a search they saw another officer open a package that 

the inmate allegedly opened). Perez gave the district court nothing approaching the 

descriptions of the missing testimony that the inmates provided in Donelson and 

Pannell. Having found that there was “some evidence” that Perez discussed an 

unauthorized financial transaction, and without any explanation of how Ledo would 

have refuted that finding, the district court did not err in deeming the absence of Ledo’s 

live testimony harmless. And Perez has yet to rebut the argument that, because he 

could be found guilty simply for discussing an unauthorized financial transaction—and 

he has not argued on appeal that this interpretation of the calls is unsupported—Ledo 

could say nothing that would change the outcome. 

AFFIRMED