IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

OSCAR LOPEZ-AGUIRRE, )

)

Petitioner, )

)

vs. ) CAUSE NO. 3:14-CV-003

)

SUPERINTENDENT, )

)

Respondent. )

OPINION AND ORDER

This matter is before the Court on the habeas petition

challenging a prison disciplinary proceeding, filed by Oscar LopezAguirre, a pro se prisoner, on January 2, 2014 (DE #1). For the

reasons set forth below, the petition (DE #1) is DENIED.

BACKGROUND

In WCC # 13-05-0089, Lopez-Aguirre was found guilty of

attempted trafficking in violation of disciplinary rules 111/113.

(DE #5-7.) The charge was initiated on May 4, 2013, when Officer

M. Rogers wrote a conduct report stating as follows: 

Today at approx. 3:15 pm I, Ofc. M. Rogers was on duty

making a security round on B2-South wing. Offender

Lopez-Aguirre #230497 was in his room (B2-51-4L).

Offender Lopez-Aguirre did offer to pay me five-hundred

dollars to bring him a cell phone into the facility. I,

Ofc. M. Rogers contacted my supervisor, Sgt. L. Jones.

Offender Lopez followed me to the officer’s station,

begging that I would not report his attempt to traffick

[sic]. Offender Lopez was escorted to the EC Holding

Cell by Sgt L. Jones and Sgt J. Bournat approx 3:30 pm.
(DE #5-1.)

On May 9, 2013, Lopez-Aguirre was formally notified of the

charge. (DE #5-2.) He pled not guilty, requested the assistance

of a lay advocate, and waived the 24-hour notice requirement. (Id.) 

He did not request any physical evidence, and requested a witness

statement from his cellmate Justin Piersimoni. (Id.) A statement

was obtained from Piersimoni prior to hearing, who stated as

follows: 

Lopez was my bunkie. When I returned to the cell he was

upset & packing his stuff up. I asked him what was wrong

& he said he thought Ms. Rogers got mad @ him because she

misunderstood what he’d been talking about. I said “what

do you mean, what happened?” He then told me that he was

telling her some story about his family & ask[ed] me to

try to talk to her cuz [sic] his english is real broken.

I went to try & ask Ms. Rogers what had happened & she

said it was none of my [business] & to leave. So I did

so.

(DE #5-4.)

 On May 23, 2013, a hearing was held on the charge. (DE #5-7.) 

Lopez-Aguirre was assisted by a lay advocate and an interpreter. 

(Id.) Through the interpreter, he made the following statement in

his defense:

He was talking to the officer about a phone that his

family had bought for him. He mentioned to the officer

that they paid $500 for the phone. She asked him again

how much. He repeated it and she told him to pack up his

stuff. I miss my family and my phone that they bought

me. He was reading a letter from his family, Officer

asked what was going on. He doesn’t have money. He

talks to his family every two weeks.

(Id.) Based on the evidence, the hearing officer found him guilty. 

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(Id.) Among other sanctions, he lost earned time credits. (Id.) 

His administrative appeals were denied. (DE 5-8; DE 5-9.) 

DISCUSSION

 When prisoners lose earned time credits in a disciplinary

proceeding, the Fourteenth Amendment Due Process Clause guarantees

them certain procedural protections: (1) advance written notice of

the charge; (2) an opportunity to be heard before an impartial

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

documentary evidence 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. 

Wolff v. McDonnell, 418 U.S. 539 (1974). To satisfy due process,

there must also be “some evidence” in the record to support the

guilty finding. Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S.

445, 455 (1985). 

Lopez-Aguirre first challenges the sufficiency of the

evidence. (DE #1 at 2.) In reviewing a disciplinary determination

for sufficiency of the 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.” McPherson v. McBride, 188

F.3d 784, 786 (7th Cir. 1999). “[T]he relevant question is whether

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there is any evidence in the record that could support the

conclusion reached by the disciplinary board.” Hill, 472 U.S. at

455-56 (emphasis added). The court will overturn a guilty finding

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). Additionally, the 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, Officer Rogers reported that Lopez-Aguirre offered her

$500 if she would bring a cell phone into the facility for him. 

(DE #5-1.) Lopez-Aguirre did not deny having this conversation,

but claimed the officer misunderstood him and that he was only

talking about a cell phone his family bought for him. (DE #5-7.)

He submitted a witness statement from his cellmate, but it merely

provided a second-hand account of his claim that the officer had

misunderstood him. (DE #5-4.) The hearing officer was aware of

Lopez-Aguirre’s claim that the officer misunderstood him, but she

chose not to credit his statement. It is not the purview of this

court to reweigh the evidence to make its own determination of

guilt or innocence. McPherson, 188 F.3d at 786. Instead, the

question for this court is whether there is some evidence to

support the determination made by the hearing officer. See Hill,

472 U.S. at 457. Based on the record, the court cannot conclude

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that the guilty finding was without evidentiary support or

otherwise arbitrary. See id. (due process is satisfied as long as

“the record is not so devoid of 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.

Lopez-Aguirre next appears to claim that he was denied

evidence. (DE #1 at 2.) A prisoner has a limited right to present

witnesses and evidence in his defense consistent with correctional

goals and safety. Wolff, 418 U.S. at 566. A hearing officer has

considerable discretion with respect to witness and evidence

requests, and may deny requests that threaten institutional safety

or are irrelevant, repetitive, or unnecessary. Piggie v. Cotton,

342 F.3d 660, 666 (7th Cir. 2003). Furthermore, due process only

requires access to witnesses and evidence that are exculpatory. 

See Rasheed-Bey v. Duckworth, 969 F.2d 357, 361 (7th Cir. 1992). 

“Exculpatory” in this context means evidence that “directly

undermines the reliability of the evidence in the record pointing

to [the prisoner’s] guilt.” Meeks v. McBride, 81 F.3d 717, 721

(7th Cir. 1996). The denial of evidence will be considered

harmless unless the prisoner shows that the evidence could have

aided his defense. See Jones v. Cross, 637 F.3d 841, 847 (7th Cir.

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2011). 

Here, Lopez-Aguirre requested only one witness statement at

screening (DE #5-2), and that statement was obtained and considered

by the hearing officer (DE #5-4; DE #5-7). Although unclear, he

may be claiming that his rights were violated because he was not

given a copy of an incident report authored by Sergeant Jones. (DE

#1 at 2; DE #13 at 3.) However, there is nothing to reflect that

he requested this or any other evidence at screening, and he cannot

fault the hearing officer for failing to consider evidence he did

not properly request. See Piggie v. McBride, 277 F.3d 922, 925

(7th Cir. 2002). 

Nor has he established a violation of his rights based on the

fact that the report was originally designated as confidential.1

“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, 418 U.S. at 556. The hearing

officer was not required to follow the formal rules of evidence or

permit him to confront the adverse evidence or witnesses. Piggie,

342 F.3d at 666 (inmate had no right to cross-examine or confront

adverse witnesses); Walker v. O’Brien, 216 F.3d 626, 637 (7th Cir.

2000) (formal rules of evidence do not apply at prison disciplinary

1

 After consulting with the IDOC legal department, counsel for

respondent determined that it was not necessary for this document to be

maintained under seal. (DE #10.) Accordingly, the document is part of the

public record in this case. (DE #10-1.)

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proceeding). Nor was she limited to considering evidence presented

at the hearing. Rasheed-Bey, 969 F.2d at 361. Instead, “prison

disciplinary boards are entitled to receive, and act on,

information that is withheld from the prisoner and the public[.]”

See White v. Ind. Parole Bd., 266 F.3d 759, 767 (7th Cir. 2001). 

Moreover, the incident report in question has been submitted

to the court, and it is neither inculpatory nor exculpatory. (DE

#10-1.) Instead it merely reiterates the account of Officer Rogers

that Sergeant Jones and Sergeant Bourn escorted Lopez-Aguirre to a

holding cell after this incident. (See DE #5-1.) The only

additional piece of information reflected in the incident report is

that Lopez-Aguirre was searched before entering the holding cell

and no money was found on him. (DE #10-1.) However, to be guilty

of attempted trafficking, Lopez-Aguirre did not need to have

sufficient funds on his person to pay the officer at that

particular moment. As discussed above, there was sufficient

evidence in the record that Lopez-Aguirre attempted to traffic by

asking an officer to bring him a phone in exchange for money. 

Nothing in the incident report directly undercuts the reliability

of that evidence. To the extent the incident report had any

exculpatory value, the hearing officer considered this evidence in

reaching her decision, which is all that Lopez-Aguirre was entitled

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to under Wolff.2 See White, 266 F.3d at 768 (prisoner’s rights

were not violated when evidence he claimed was exculpatory was

considered by the disciplinary board, even though he was not

permitted to view this evidence himself). Accordingly, this claim

is denied.

Next, Lopez-Aguirre claims that the hearing officer failed to

follow Indiana Department of Correction (“IDOC”) policies regarding

the sanctions imposed and other matters. (DE #1 at 2.) However,

even if he is correct that internal policies were not followed, a

violation of IDOC rules 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 federal law); 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”). Accordingly, this claim is denied.

Giving his filings liberal construction, Lopez-Aguirre also

claims that he did not receive proper notice of the charge. (See

DE #1 at 3; DE #13 at 2-3.) Due process requires that an offender

receive written notice of the charges at least 24 hours before the

2 In his traverse, Lopez-Aguirre makes a confusing argument that the

hearing officer should not have listed the incident report “as a reason for

reaching a guilty decision.” (DE #13 at 3.) It is apparent from the record

that the hearing officer was merely noting that she considered the report in

reaching her decision, not that she concluded the report contained inculpatory

evidence. (See DE #5-7.) It was wholly proper for her to make a complete

record of the evidence she considered in connection with her decision. See

Wolff, 418 U.S. at 564-65; Scruggs v. Jordan, 485 F.3d 934, 940. 

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hearing. Wolff, 418 U.S. at 566. The basic purpose of the notice

is “to inform [the prisoner] of the charges and to enable him to

marshal the facts and prepare a defense.” Whitford v. Boglino, 63

F.3d 527, 534 (7th Cir. 1995). To that end, the notice must

include “the number of the rule violated ... and a summary of the

facts underlying the charge.” Id. 

Here, the record reflects that Lopez-Aguirre received

considerably more than 24 hours notice, since he was screened on

May 9, 2013, and the hearing did not occur until May 23, 2013. (DE

#5-2; DE #5-7.) The screening notice included the number of the

rules violated, and the conduct report contained more than enough

detail about the incident to enable him to prepare a defense. (DE

#5-1; DE #5-2.) Lopez-Aguirre was obviously well aware of the

facts underlying the charge, as he did prepare a defense, arguing

that the officer misunderstood what was said during their

conversation.3 Based on the record, he has not established a

violation of his due process rights in connection with the notice

he received.

Finally, Lopez-Aguirre asserts in his traverse that he was

3

 Lopez-Aguirre also suggests that his rights were violated because the

Indiana trafficking statute has been “repealed.” (DE #1 at 3.) This argument

has no merit. Lopez-Aguirre was found guilty of attempted trafficking in

violation of disciplinary rules 111/113. (DE #5-7.) Rule 111 refers to

attempted offenses, and Rule 113 prohibits trafficking as defined by Indiana

law. IDOC Disciplinary Process For Adult Offenders, Policy No. 02-04-101. The

relevant Indiana statute makes it unlawful to traffic in any state penal

institution. IND. CODE § 35-44.1-3-5. The statute was previously codified at

IND. CODE § 35-44-3-9, but in July 2012 (prior to the commission of the

offense) was recodified at IND. CODE § 35-44.1-3-5. The substance of the

statute has remained unchanged.

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denied his right to an impartial decision-maker. (DE #13 at 5.) He

did not raise this claim in his petition, and a traverse is not the

place to be asserting new claims for the first time. See RULE

2(C)(1) OF THE RULES GOVERNING SECTION 2254 CASES (providing that all

grounds for relief must be contained in the petition). In any

event, he has not established a violation of his due process

rights. In the prison disciplinary context, adjudicators are

“entitled to a presumption of honesty and integrity,” and “the

constitutional standard for improper bias is high.” Piggie, 342

F.3d at 666. Due process prohibits a prison official who was

substantially involved in the underlying incident from acting as a

decision-maker in the case. Id. However, due process is not

violated simply because the hearing officer knew the inmate,

presided over a prior disciplinary case, or had some limited

involvement in the events underlying the charge. Id. 

Here, Lopez-Aguirre does not argue——nor is there evidence in

the record to suggest——that the hearing officer was involved in any

way in the events underlying the charge. Instead, he asserts that

the hearing officer was biased because she works with Officer

Rogers, as well as the staff member who served as an interpreter,

and there was “camaraderie” among them. (DE #13 at 5.) As

outlined above, this was not a formal criminal proceeding. The fact

that the prison staff involved knew each other, worked together, or

even engaged in off-the-record conversations, does not violate due

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process in this context. See Piggie, 342 F.3d at 666; White, 266

F.3d at 767. 

Lopez-Aguirre may also be asserting that the hearing officer

was biased because she rejected his proffered defense. (DE #13 at

3.) However, it was her job to weigh the evidence and assess the

relative credibility of the witnesses, and her adverse ruling does

not establish impermissible bias. Liteky v. United States, 510

U.S. 540, 555–56 (1994). Accordingly, this claim is denied.

CONCLUSION

For the reasons set forth above, the petition (DE #1) is

DENIED.

DATED: July 30, 2014 /s/ RUDY LOZANO, Judge

 United States District Court

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