UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

Albert L. Baker, 

 Petitioner, 

v. Case No. 3:16-CV-204 JVB 

Superintendent, 

 Respondent. 

OPINION AND ORDER 

 Albert L. Baker, a pro se prisoner, filed a habeas corpus petition challenging the prison 

disciplinary hearing (MCF 15-09-19) where a disciplinary hearing officer (DHO) at the Miami 

Correctional Facility found him guilty of Possession of Security Threat Group Material on 

September 30, 2015. As a result, he was sanctioned with the loss of 60 days earned credit time and 

demoted to Credit Class 2. Baker raises three grounds in his petition, but they are all interrelated. 

“In conducting habeas review, a federal court is limited to deciding whether a conviction violated 

the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991). 

 Baker explains that on August 30, 2015, he returned to his cell to find Latino Gang 

literature on the floor. He told his cellmate to put it away. The next day, during an inspection, this 

literature was found behind a collage of pictures. It and some German language material were 

confiscated. He and his cellmate were written up. At his hearing, the German materials could not 

be located and the gang literature was in his cellmate’s case file. 

In Ground One, Baker argues that it was a due process error to have taken the gang 

literature from the other file for use in his case. It was not. Though Wolff v. McDonnell, 418 U.S. 
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539 (1974), requires that an inmate be given notice of the factual basis of the charges against him, 

federal constitutional due process does not specify where the evidence must be stored. 

 In Ground Two, Baker argues that it was a due process error for the DHO to have denied 

him a continuance to obtain a statement from his cellmate taking responsibility for the Gang 

literature. It was not. Though Wolff v. McDonnell, 418 U.S. 539 (1974), requires that an inmate be 

given 24-hour advance written notice of the factual basis of the charges against him, it does not 

require that he be granted a continuance. “Baxter v. Palmigiano, 425 U.S. 308 (1976), warns the 

court of appeals not to add to the procedures required by Wolf, which, Baxter held, represents a 

balance of interests that should not be further adjusted in favor of prisoners.” White v. Ind. Parole 

Bd., 266 F.3d 759, 768 (7th Cir. 2001). Moreover, Baker’s description of events makes it clear that 

both he and his cellmate possessed the Gang literature. 

 In Ground Three, Baker argues that it was a due process error for the DHO to have denied 

that a confiscation slip was written for the missing German language materials. He has attached a 

copy of the confiscation slip proving that it existed. However, the German language materials are 

irrelevant to whether he is guilty of possessing Security Threat Group material. Without regard to 

whether the German language materials were also prohibited, the Latino Gang literature was. 

Though the DHO may have been mistaken about the existence of a confiscation slip for the German 

language materials, that is not a basis for overturning the finding that Baker was guilty of 

possessing the Latino Gang literature which was Security Threat Group material. 

 If Baker wants to appeal this decision, he does not need a certificate of appealability 

because he is challenging a prison disciplinary proceeding. See Evans v. Circuit Court, 569 F.3d 

665, 666 (7th Cir. 2009). However, he may not proceed in forma pauperis on appeal because the 
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court finds pursuant to 28 U.S.C. § 1915(a)(3) that an appeal in this case could not be taken in 

good faith. 

 For these reasons, the habeas corpus petition is DENIED. The clerk is DIRECTED to 

enter judgment and close this case. Albert L. Baker is DENIED leave to proceed in forma pauperis 

on appeal. 

SO ORDERED on April 24, 2017. 

 s/ Joseph S. Van Bokkelen 

 JOSEPH S. VAN BOKKELEN 

 UNITED STATES DISTRICT JUDGE