UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

ANDRE NELSON, )

)

Petitioner, )

) 

v. ) Case No. 3:15-CV-280

)

SUPERINTENDENT, )

)

Respondent. )

OPINION AND ORDER

This matter is before the Court on a Petition under 28 U.S.C.

Paragraph 2254 for Writ of Habeas Corpus by a person in State

Custody Seeking Review of a Prison Disciplinary Sanction, filed by

Andre Nelson, a pro se prisoner, on July 6, 2015. Here, Nelson

challenges a disciplinary determination made by a hearing officer

at the Pendleton Correction Facility (“Pendleton”) under case

number ISR 15-02-0007. For the reasons set forth below, the court

DENIES the petition (DE 1). The clerk is DIRECTED to close this

case.

BACKGROUND

On January 30, 2015, Internal Affairs Investigator W.C.

Peterson prepared a conduct report charging Nelson with

trafficking. (DE 4-1.) The conduct report stated, in relevant part,

as follows: 

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On January 30, 2015 at approximately 8:45 A.M. I – Mr. W.

C. Peterson – (Internal Affairs [In]vestigator IV /

Correctional Police Officer) reviewed a letter written by

Offender Nelson, Andre 934979 which was mailed out of the

Pendleton Correctional Facility via the United States

Postal Service. [The] above mentioned letter was not able

to be delivered and was returned to the sender who was

Offender Nelson 934979. In the letter Offender Nelson

writes the following statements. “Fam-O I know it’s been

six (6) months since I put money on that Rush Card we

have yet to receive the money.... I have some

info for you to get direct access to a representative

with Green Dot.... You must let them know, according to

their policy, you feel it should not taken [sic] that

long for you to have your money five hundred dollars

($500.00) refunded. Why? Because of this policy of

recording all calls they can see from their (policy) you

put five hundred dollars ($500.00) on an old card which

allowed you to load it and clarified the money was loaded

by pressing 1 (one) and the last four (4) digits of your

old card clarified it was loaded to that card.... Fam-O,

it’s to [sic] late in the game to allow Green Dot to get

away with not refunding my money.... After you do this, you

should be able to get someone from Green Dot to take a

serious look at getting my money back. Please do all that

I request in this letter when you don’t have to work FamO. Trust me, this will work and when you talk to these

people, be very assertive and act highly upset because

you were unable to pay your bills on time and you have

two (2) kids under the age of two years old you have to

provide for. Please, be patient and stick to the script

I gave you and we will have my money in a month. Just

follow the blue print I just gave you. I provided all the

info you need.

(Id.) Nelson’s letter and envelope were entered as evidence. (DE 4-

3.)

On February 6, 2015, Nelson was transferred to Westville

Correctional Facility (“Westville”). On February 16, 2015, Nelson

was notified of the charge of attempting to traffic and served with

a copy of the conduct report and the screening report. (DE 4-4.)

The screening report reflects that he pled not guilty, did not

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request a lay advocate or to call any witnesses. He asked for a

copy of the evidentiary record, but did not request to present any

other physical evidence. (Id.) 

On February 17, 2015, a hearing officer conducted a

disciplinary hearing and found Nelson guilty of the charge of

attempting to traffic. (DE 4-5.) At the hearing, Nelson’s comment

was, “I never received a confiscation slip for the letter. I never

knew I was under investigation. The lady in the mail room Ms.

Peterson, is not listed as a witness.” (Id.) Relying on staff

reports, Nelson’s statement and the letter, the hearing officer

imposed a penalty of 60 days lost earned time credits and demoted

him from credit class 1 to credit class 2. (Id.) The hearing

officer stated his reason for the decision, “Offender made numerous

references to the money as his. Also last part of letter states,

‘Please be patient and stick to the script I gave you and we’ll

have my money in a month.’” (Id.) Nelson appealed to the facility

head and the final reviewing authority, but his appeals were

denied. (DE 4-6; 4-7; 4-8.)

DISCUSSION

 When prisoners lose earned time credits in a prison

disciplinary hearing, they are entitled to certain protections

under the Due Process Clause: (1) advance written notice of the

charges; (2) an opportunity to be heard before an impartial

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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 a

fact finder of evidence relied on and the reasons for the

disciplinary action. Wolff v. McDonnell, 418 U.S. 539, 563 (1974).

To satisfy due process, there must also be “some evidence” to

support the hearing officer’s decision. Superintendent, Mass. Corr.

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

Here, Nelson raises three claims in his petition: (1) he was

denied a staff witness; (2) there was insufficient evidence to

support the conviction; and (3) he was denied an impartial hearing

officer.1 

First, Nelson argues that he was denied the opportunity to

call a mail room staff member as a witness. A prisoner has a

limited right to call witnesses and present documentary evidence

consistent with correctional goals and safety, but she cannot wait

until the hearing to request such evidence. Sweeney v. Parke, 113

F.3d 716, 719-20 (7th Cir. 1997) (where prisoner had opportunity to

request witnesses when he was notified of the disciplinary hearing

and chose not to, prisoner’s limited right to call witnesses was

1

The respondent argues that Nelson’s claims are procedurally defaulted

because they were not presented to the Final Reviewing Authority. Moffat v.

Broyles, 288 F.3d 978, 982 (7th Cir. 2002). Though the court agrees that some

of Nelson’s claims are procedurally defaulted, “[a]n application for a writ of

habeas corpus may be denied on the merits, notwithstanding the failure of the

applicant to exhaust the remedies available. . ..” 28 U.S.C. § 2254(a)(2).

Thus, the court will nevertheless address the merits of Nelson’s claims.

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fulfilled and his due process rights were not violated), overruled

on other grounds by White v. Ind. Parole Bd., 266 F.3d 759, 765-66

(7th Cir. 2001). Notably, Nelson had the opportunity to request

evidence and witnesses before the hearing. However, the screening

report reveals that Nelson did not request any mail room staff

member to be a witness at the hearing. (DE 4-4). Instead, it

appears Nelson waited for the hearing to convene to ask for a

continuance and get a witness statement from the mail room staff.

This was denied. However, the denial of Nelson’s day-of-hearing

request did not deny him the opportunity to present evidence or

witnesses.2 Piggie v. McBride, 277 F.3d 922, 924-25 (7th Cir.

2002); Sweeney v. Parke, 113 F.3d 716, 720 (7th Cir. 1997)

(overruled on other grounds by White v. Indiana Parol Bd., 266 F.3d

759 (7th Cir. 2001)).

Nevertheless, in his traverse, Nelson asserts that after he

was notified of the charge, but before the hearing, he requested

the mail room staff worker who confiscated his incoming mail as a

witness. (DE 13 at 6.) The respondent disputes that Nelson ever

made such a request. Even assuming Nelson did request the staff

member provide a witness statement, this does not change the

Court’s conclusion. An inmate has a constitutional right to present

relevant, exculpatory evidence during a prison disciplinary hearing

2

This is especially true as the court has found that any witness

statement from the mail room staff member would not have been exculpatory.

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which extends the duration of his confinement. Wolff v. McDonnell,

418 U.S. 539, 566 (1974). However, due process only requires access

to witnesses and evidence that are exculpatory. Rasheed-Bey v.

Duckworth, 969 F.2d 357, 361 (7th Cir. 1992). Exculpatory in this

context means evidence which “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). 

Nelson claims that the mail room staff member would have

stated that “she was the one who read Nelson’s out-going mail per

policy and approved it to go out because it was not a violation of

D.O.C. policy.” (DE 13 at 7.) Notably, the mail room staff member

could only testify regarding the receipt and contents of the

returned letter. The hearing officer was already aware of this

information based on the conduct report and the returned letter

itself. Thus, there was not exculpatory value to the mail room

staff member. Jones v. Cross, 637 F.3d 841, 847 (7th Cir. 2011) (a

prisoner is only entitled to habeas relief if the erroneous denial

of evidence was harmful and caused actual prejudice). Consequently,

Nelson is not entitled her to federal habeas relief on this ground.

Estelle, 502 U.S. at 67-68. 

Second, Nelson complains that he was denied an impartial

hearing officer. 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

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

personally and 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 event underlying the charge. Id. 

Here, Nelson believes that the hearing officer was generally

biased, but there is no indication that he was involved in any way

in the events underlying the charge. He appears to believe the

hearing officer was impartial because the officer made adverse

rulings against him. But adverse rulings alone do not establish

impermissible bias. Liteky v. United States, 510 U.S. 540, 555–56

(1994). Nelson complains that the hearing officer found him guilty

without sufficient evidence, did not allow him to call the mail

room staff member as a witness and allowed a lay advocate be

present in the hearing when Nelson did not request one. However,

none of these things warrant habeas relief.

Third, Nelson claims there was insufficient evidence to find

him guilty of attempting to traffic. 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.

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McBride, 188 F.3d 784, 786 (7th Cir. 1999). “[T]he relevant

question is whether there is any evidence in the record that could

support the conclusion reached by the disciplinary board.”

Superintendent v. Hill, 472 U.S. 445, 455-56 (1985). The court will

overturn the hearing officer’s decision 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, a

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).

Nelson was found guilty of attempting to traffic in violation

of disciplinary rules 111/113. Class A offense #111 is defined as

“[a]ttempting or conspiring or aiding and abetting with another to

commit any Class A offense.” (DE 9-6, Ex. G3.) Class A offense

#113, prohibits trafficking with anyone who is not an offender

residing in the same facility. (Id. at G4.) In this case, it is

clear that the record in this case contains at least “some

evidence” to support the hearing officer’s determination that

Nelson was guilty of attempted trafficking. The conduct report and

Nelson’s letter are some evidence that Nelson attempted to traffic.

McPherson, 188 F.3d at 786 (7th Cir. 1999) (conduct report alone

provided some evidence to support disciplinary determination). The

evidence showed that Nelson planned with his friend Fam-O to send

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and receive money by using a Green Dot card. The letter

demonstrated an attempt for Fam-O to get a refund of Nelson’s money

from Greed Dot and have it returned to Nelson. This is trafficking.

Ind. Code § 35-44.1-3-5(b). Although Nelson denies that he

attempted to traffic, it is not the province of this court to reweigh evidence. Because there is some evidence to support the

hearing officer’s determination, there is no basis for granting

habeas relief on this ground. 

CONCLUSION

For the reasons set forth above, the court DENIES the petition

(DE 1). The clerk is DIRECTED to close this case.

DATED: January 23, 2017 /s/RUDY LOZANO, Judge

United States District Court

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