UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

MARIO LEANOS, )

)

Petitioner, )

) CAUSE NO. 3:13-CV-403 PS 

vs. )

)

SUPERINTENDENT, )

)

Respondent. )

OPINION AND ORDER

In a prison disciplinary hearing, Mario Leanos was found guilty of aiding and abetting

the unauthorized possession of a cell phone in violation of a prison rule. (DE 9-8.) Proceeding

pro se, he now challenges that finding in the present habeas petition filed under 28 U.S.C. §

2254. (DE 1.) Leanos was originally charged with unauthorized possession of a cell phone – not

aiding and abetting – and the charge was based on a conduct report prepared by Correctional

Officer R. Thomas. (DE 9-1 at1.) Here’s what the report says:

On 03-05-2013 at approximately 1220 I Ofc Thomas was the phase 2 yard officer

when I was called on radio by Sgt Knauff to break up the group of NHU offenders

talking with the offenders from PHU. When I got over there I told the 3 offenders to

come here so I could do frisk search. While searching offender Leanos, Mario #

157927 verified by his ID, I felt what I thought to be a cell phone. I told Offender

Leanos to give me what ever is in his pocket underneath his jumpsuit. Offender

Leanos stated there is nothing in my pocket. I then told Sgt Knauff I was going to

NHU to strip search Offender Leanos. While walking to NHU through phase 2 yard

from center walk Offender Leanos kept messing with that pocket I told Offender

Leanos to stop, in which he complied. He then took another step I noticed an [sic]

black object fall to the ground. I proceeded to NHU to strip search Offender Leanos

no contraband was found. I stepped outside the unit and told Ofc Ruisi to watch that

offender because I believed he had a cell phone but did not find it during strip search

but that he had drop [sic] something in the yard and I was going to get it. When I got

back to where Offender Leanos dropped the item I found a Samsung flip phone with

battery pack and cell phone battery.
(DE 9-1 at 1.) Pictures of the phone were taken and included with the conduct report. (Id. at 2-3.)

On that same date, Sergeant B. Knauff provided the following witness statement:

On 3-5-2013 at approximately 1220, I Sgt. Knauff called 286 on the radio to break

up a group of offender standing on the walk. Officer Thomas, R. approached the

offenders who were from NHU. They were waiting to talk to offenders from PHU.

As officer Thomas approached offenders from PHU went on proper way back to

there [sic] unit. Officer Tomas then did a pat search on the 3 offenders from NHU

who were standing talking to PHU. At this time Officer Thomas started escorting

offender Leanos, Mario #157927 back to NHU through the yard. Officer Thomas

took offender Leanos to the unit for a strip search. At witch [sic] time he didn’t find

anything. Officer Thomas then came out of the unit and started searching the ground

him [sic] and offender Leanos walked across. At this time he picked up a cell phone

that offender Leanos drop[p]ed.

(DE 9-2.)

On March 11, 2013, Leanos was formally notified of the charge and given a copy of the

conduct report. (DE 9-1 at 1; DE 9-3.) He pled not guilty, requested a lay advocate, requested

inmates Steven Loy and John Matthews as witnesses, and requested review of the surveillance

video. (DE 9-3.) The hearing officer reviewed the video prior to the hearing, but due to the angle

of the camera, the incident could not be seen. (DE 9-6.) 

On March 14, 2013, a hearing was held on the charge. (DE 9-8.) Leanos’s two requested

witnesses both appeared and made statements. (DE 9-4; DE 9-5.) Loy stated as follows:

We was walking back from chow walking slow talking to P-dorm they was comin[g]

out of chow. Ofc. Thomas ap[p]roached us (John Mathews Me Mario Leanos) and

asked us what we were doing and started to shake down Mario Leanos. So I threw

the cell phone behind me into the yard towards the volley ball court so I wouldn’t get

caught with it. After being searched by Ofc. Thomas he ordered me and Mathews

back to N-dorm where we live. Later that day I found out Leanos was getting a

conduct report for a cell phone found in the yard. I don[’]t want Mario Leanos

getting in trouble for a cell phone that was not his and didn[’]t at no time have. That

was my cell phone found on the yard by Ofc. Thomas. I was the one in possession

of the phone at the time of this incident. And I take full responsibility for it.

(DE 9-4.) Matthews made the following statement:

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On 3/5/13 at approximately 12:30, I John Matthews #162466 was walking back to

N-Dorm from the chow hall with both Offenders Mario Leanos and Steven Loy we

were slowly walking as we were talking and interacting with fellow inmat[es] from

P-Dorm as they were also coming out of the other chow hall[.] At this time we were

app[r]oached and order[ed] to stop by Officer Thomas, he stated he would like to pat

search each of us. Starting wit[h] Offender Leanos whom was ordered to turn around,

while Officer Thomas was pat search [sic] Offender Leanos I observed Offender

Steven Loy throw what I could see clearly was [a] cell phone behind him towards the

voll[e]y ball court in the center of the offender recreation field. After pat searching

Offender Leanos Officer Thomas th[en] performed the search upon myself, followed

by Offender Steven Loy. Once Officer Thomas finished his pat search of myself and

Steven Loy we were instructed to return to N-Dorm housing unit. Leaving Offender

Leanos to speak with Officer Thomas. At no time during or immediately following,

being pat searched and ordered back to my dorm did Officer Thomas find the ce[ll]

phone I seen thrown by Offender Steven Loy.

(DE 9-5.) 

In his defense, Leanos stated: “C/O Thomas and I do not get along. He talked smack to

me and I talked smack to him. It’s not my phone.” (DE 9-8 at 1.) The hearing officer found the

evidence more appropriately reflected the offense of aiding/abetting the unauthorized possession

of a cell phone. (Id.) As modified, the hearing officer found Leanos guilty. (Id.) Among other

sanctions, the hearing officer imposed a suspended sanction from another disciplinary offense,

resulting in Leanos being demoted to a lower credit-earning class. (Id.) His administrative

appeals were denied (DE 9-9 to 9-11), and he thereafter filed this petition.

 When a due process liberty interest is at stake in prison disciplinary hearings, the

Fourteenth Amendment guarantees prisoners certain procedural due process protections: (1)

advance written notice of the charges; (2) an opportunity to be heard before an impartial

decision-maker; (3) an opportunity to call witnesses and present documentary evidence in

defense when consistent with institutional safety and correctional goals; and (4) a written

statement by the fact-finder of evidence relied on and the reasons for the disciplinary action.

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Wolff v. McDonnell, 418 U.S. 539 (1974). To satisfy due process, there must also be “some

evidence” in the record to support the disciplinary decision. Superintendent, Mass. Corr. Inst. v.

Hill, 472 U.S. 445, 455 (1985). 

Leanos’s petition is not a model of clarity, but it can be discerned that a number of his

claims are based on violations of Indiana Department of Correction (“IDOC”) policies. (DE 1 at

4-6.) However, even if he is correct that IDOC rules were violated, this would not entitle him to

federal habeas relief. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (habeas relief is only

available for a violation of the U.S. Constitution or other federal laws); Hester v. McBride, 966

F. Supp. 765, 775 (N.D. Ind. 1997) (violation of IDOC policy in disciplinary proceeding could

not support grant of habeas relief, since federal habeas court “does not sit to correct any errors of

state law”).

Leanos’s remaining allegations are various formulations of the same claim: that he

should not have been found guilty because Loy and Matthews both said the phone belonged to

Loy. (DE 1 at 4-6.) This can be read as an attack on the sufficiency of the evidence. In assessing

the sufficiency of the evidence in the prison disciplinary context, the relevant standard is whether

there is “some evidence” to support the guilty finding. Hill, 472 U.S. at 457. I will not “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.” McPherson v. McBride, 188 F.3d 784, 786 (7th Cir. 1999).

A guilty finding can be overturned for insufficient evidence only if “no reasonable adjudicator

could have found [the prisoner] guilty of the offense on the basis of the evidence presented.”

Henderson v. United States Parole Comm’n, 13 F.3d 1073, 1077 (7th Cir. 1994). Furthermore, a

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hearing officer is permitted to rely on circumstantial evidence to establish guilt. See Hamilton v.

O’Leary, 976 F.2d 341, 345 (7th Cir. 1992).

Here, there was evidence presented to the hearing officer that went both ways. On the

one hand, two of Leanos’s fellow offenders said that the phone belonged to Offender Loy. Loy

claims to have tossed the phone to the location where it was later recovered. (DE 9-4). On the

other hand, Officer Thomas reported that he felt an object inside Leanos’s jumpsuit which he

believed to be a cell phone; he saw Leanos fiddling with that area of his jumpsuit as he was

taken to be strip-searched, and then saw a black object fall out of Leanos’s clothing. The officer

later recovered a cell phone from the area where he saw the object fall. (DE 9-1 at 1.) Sergeant

Knauff submitted a statement corroborating Officer Thomas’s account in various respects. (DE

9-2.)

Leanos essentially argues that he could not be found guilty because Loy and Matthews

both said the phone belonged to Loy. (DE 1 at 5-6; DE 12; DE 13.) But as mentioned, there was

evidence to the contrary. This was not a criminal prosecution, and the hearing officer was not

required to prove Leanos’s guilt beyond a reasonable doubt, nor was he required to credit his

exculpatory evidence. Loy’s and Matthews’s accounts conflicted with Officer Thomas’s in a

number of respects, and weighing the relative credibility of the witnesses was the job of the

hearing officer, not this court. McPherson, 188 F.3d at 786. Furthermore, even if Loy actually

owned the phone, Leanos was found guilty of aiding/abetting the unauthorized possession of a

cell phone. In sum, there is sufficient evidence in the record that Leanos was in possession of the

phone on the date in question, either because it belonged to him or because he was holding it for

Loy. See Hill, 472 U.S. at 457 (due process is satisfied as long as “the record is not so devoid of

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evidence that the findings of the disciplinary board were without support or otherwise

arbitrary”); Moffat v. Broyles, 288 F.3d 978, 981 (7th Cir. 2002) (witness statement constituted

some evidence); McPherson, 188 F.3d at 786 (conduct report alone provided some evidence to

support disciplinary determination). Accordingly, this claim is denied.

As a final matter, Leanos asserts in his traverse that his rights were violated when the

charge was changed from possession of a cell phone (violation #B207) to aiding and abetting its

possession (violation #B240/207) (DE 13 at 2.) A traverse is not the appropriate place to raise a

new claim not contained in the petition. See RULE 2(C)(1) OF THE RULES GOVERNING SECTION

2254 CASES (providing that all grounds for relief must be contained in the petition). Furthermore,

before Leanos could present such a claim in this proceeding, he was required to exhaust it in the

administrative review process. See Eads v. Hanks, 280 F.3d 728, 729 (7th Cir. 2002) (principles

of exhaustion that apply to federal review of criminal convictions also apply to prison

disciplinary proceedings). He did not do so, and instead argued in his administrative appeal that

the phone did not belong to him. (DE 9-9.) 

Assuming I could reach his claim on the merits, Leanos has not demonstrated an

entitlement to habeas relief. In Northern v. Hanks, 326 F.3d 909 (7th Cir. 2003), the Seventh

Circuit considered and rejected a similar claim by an Indiana inmate. The petitioner in that case

was charged with conspiracy and bribery in connection with an investigation revealing that he

and two other inmates were smuggling tobacco into the facility. Id. at 909-10. Prior to the

hearing, he was given a copy of the investigation report detailing the factual basis for the

charges. Id. at 910. He was found guilty by a disciplinary board, but on appeal the reviewing

authority determined that the facts more appropriately supported a finding that the petitioner had

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committed “attempted trafficking.” Id. The charge was modified accordingly. Id. The petitioner

argued that the reviewing authority’s action violated his due process rights because it did not

provide him adequate notice of the charges and prevented him from mounting an appropriate

defense. Id. The Seventh Circuit rejected this argument, relying on the fact that the petitioner had

been given adequate notice through the investigation report. Id. The court concluded, “Because

the factual basis of the investigation report gave Northern all the information he needed to

defend against the trafficking charge, the reviewing authority’s modification did not deprive

Northern of his due process rights.” Id. at 911.

Similarly, here, Leanos was given a copy of the conduct report which detailed the factual

basis for the charge, specifically, that he was accused of having a phone inside his jumpsuit on

March 5, 2013. The conduct report gave him all the information he needed to defend against a

charge that he was holding the phone for someone else; indeed, he did mount a defense by

obtaining witness statements from Loy and Matthews, both of whom said the phone belonged to

Loy and that he was the one who threw it in the yard. Leanos had the same interest in defending

against the aiding/abetting charge and the possession charge given that both were B-level

offenses. See Northern, 326 F.3d at 911 (no due process violation where original and modified

charge were both A-level offenses). He has not provided any indication of how his defense

would have been different if he had originally been charged with aiding/abetting, or how he was

otherwise prejudiced by the modification. Therefore, he has not established a due process

violation.

For these reasons, the petition (DE 1) is DENIED. 

SO ORDERED.

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ENTERED: February 10, 2014.

s/ Philip P. Simon 

PHILIP P. SIMON, CHIEF JUDGE

United States District Court

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