McAtee, Ronnie L. v. Cowan, Roger D. ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3354
Ronnie L. McAtee,
Petitioner-Appellant,
v.
Roger D. Cowan,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00-C-1339--Matthew F. Kennelly, Judge.
Submitted April 23, 2001--Decided April 23, 2001
Opinion May 15, 2001/1
Before Easterbrook, Manion, and Diane P.
Wood, Circuit Judges.
Per Curiam. Illinois inmate Ronnie
McAtee filed a petition for a writ of
habeas corpus challenging two prison dis
ciplinary proceedings that resulted in
his loss of good-time credits. The
district court dismissed McAtee’s
petition after concluding that he failed
to exhaust all state judicial remedies,
thus procedurally defaulting his claims.
We affirm.
In February 1997, McAtee scuffled with
several guards outside of his cell at Big
Muddy Correctional Center. The incident
resulted in his immediate transfer to the
segregation unit at Menard Correctional
Center and charges of violating prison
rules, assault, and disobeying a direct
order. Eleven days after his transfer to
Menard, McAtee appeared at a disciplinary
hearing before the Prison Adjustment
Committee (PAC). He denied committing the
infractions, but the PAC found him
guilty, revoked one year of good-time
credits, and imposed other sanctions not
relevant here. McAtee appealed to the
Prison Review Board (PRB) and to the
Director of the Department of
Corrections. The PRB and the Director
denied his appeal on August 14, 1997.
McAtee then filed a grievance with the
Administrative Review Board (ARB). The
ARB referred the grievance to Internal
Affairs, which discovered that one of the
officers who squabbled with McAtee had
falsified and concealed his actions in
relation to the incident. McAtee
petitioned the PRB for restoration of his
good-time credits, but never received a
response. Some time later McAtee was
transferred to Pontiac Correctional
Center. In July 1998 he was involved in a
similar altercation with several Pontiac
guards and charged with violating prison
rules, damaging state property, and
disobeying a direct order. The PAC found
him guilty and revoked three months of
good-time credits. McAtee’s
administrative appeals and grievances
seeking relief from this sanction were
denied in August 1998.
McAtee filed a timely action for
mandamus in Illinois court seeking
restoration of his good-time credits./2
McAtee claimed that his due process
rights were violated because his first
disciplinary hearing was not held within
eight days after the Big Muddy incident
occurred, there was insufficient evidence
to support the charges, the PAC failed to
adequately explain in writing its reasons
for sanctioning him, and the PAC failed
to disclose exculpatory evidence. The
state court dismissed his complaint on
May 3, 1999, concluding that McAtee’s
hearing was timely, the PAC adequately
explained its findings, and the evidence
was sufficient to support the charges.
The court also found that McAtee could
not show that the PAC members failed to
carry out their ministerial duties, a
requirement for mandamus relief. McAtee
did not appeal this decision to the
Illinois Appellate Court because he
missed the deadline to file his notice of
appeal. Instead, McAtee petitioned for a
writ of habeas corpus under 28 U.S.C.
sec. 2254 in the Central District of
Illinois. The district court determined
that McAtee was in custody in the
Northern District of Illinois, and
transferred his petition there pursuant
to 28 U.S.C. sec. 2241(d). The district
court dismissed, concluding that McAtee
procedurally defaulted his claims by not
appealing the adverse judgment.
State prisoners challenging the
deprivation of good-time credits by way
of a habeas corpus petition must exhaust
adequate and available state remedies
before proceeding to federal court. 28
U.S.C. sec. 2254 (b)(1); Preiser v.
Rodriguez, 411 U.S. 475, 491-92 (1973).
The state remedies that must be exhausted
in the prison-disciplinary context,
however, vary from state to state. For
instance, Indiana has no judicial
procedure for reviewing prison
disciplinary hearings, so Indiana inmates
may immediately petition for a writ of
habeas corpus in federal court after
exhausting their internal administrative
remedies. Harris v. Duckworth, 909 F.2d
1057, 1058-59 (7th Cir. 1990) (discussing
Hasty v. Broglin, 531 N.E.2d 200, 201
(Ind. 1988)). On the other hand,
Wisconsin inmates have a judicial remedy-
-a petition for a common law writ of
certiorari to the Wisconsin state courts,
see Walker v. O’Brien, 216 F.3d 626, 637
(7th Cir. 2000); Hamlin v. Vandenberg, 95
F.3d 580, 585 (7th Cir. 1996); Peckham v.
Krenke, 601 N.W.2d 287, 289-90 (Wis. Ct.
App. 1999)--that they must exhaust before
filing their federal petitions. Like
their Wisconsin neighbors, Illinois
inmates seeking restoration of good-time
credits lost due to constitutionally
infirm disciplinary hearings have a
judicial remedy: they can file a
complaint for an order of mandamus from
an Illinois circuit court. See Johnson v.
McGinnis, 734 F.2d 1193, 1198-99 (7th
Cir. 1984). If dissatisfied with the
result, the inmate must invoke one
complete round of the normal appellate
process, including seeking discretionary
review before the state supreme court.
O’Sullivan v. Boerckel, 526 U.S. 838,
845-48 (1999). McAtee started the process
but failed to finish it.
McAtee argues that under the
circumstances he should be allowed to
proceed. First, relying on Wilwording v.
Swenson, 404 U.S. 249 (1971), he asserts
that he was not required to seek a state
mandamus remedy as a prerequisite to
proceeding in federal court. He misreads
Wilwording. Wilwording holds that state
prisoners are not required to pursue
separate state remedies that could be
available before filing a habeas corpus
petition in federal court, so long as the
prisoner has allowed the state courts one
fair opportunity to pass upon and correct
the alleged violations. 404 U.S. at 250.
Thus, if McAtee had another adequate and
available avenue for relief and took
advantage of it, he would not be required
to seek an order of mandamus as well. An
action for mandamus, however, is the
preferred procedure in Illinois for
remedying unfair prison disciplinary
hearings. McAtee started on the correct
procedural route but failed to see it
through.
He also claims that under Smith v.
Digmon, 434 U.S. 332 (1978), he was not
required to appeal the dismissal of his
mandamus action. But Smith holds that
federal courts cannot assume a claim has
been procedurally defaulted merely
because the state courts fail to mention
the claim in their opinions. 434 U.S. at
333-34. Here, the Illinois appellate and
supreme courts were never presented with
the opportunity to discuss McAtee’s
claims because he did not appeal.
Finally, McAtee contends that his
failure to appeal should be excused
because the state court erroneously
believed it lacked the authority to
review his disciplinary hearing by way of
an action for mandamus. That is not a
fair reading of the court’s order--the
state court did review McAtee’s due
process claims. But in any event, the
power of the Illinois courts to review
prison disciplinary proceedings and
restore good time credits for violations
of both federal and state law is well-
established. See Durbin v. Gilmore, 718
N.E.2d 292, 294-97 (Ill. App. Ct. 1999);
Armstrong v. Washington, 682 N.E.2d 761,
762 (Ill. App. Ct. 1997); Shea v.
Edwards, 581 N.E.2d 822, 823 (Ill. App.
Ct. 1991); Taylor v. Franzen, 417 N.E.2d
242, 247 (Ill. App. Ct. 1987); People ex
rel. Stringer v. Rowe, 414 N.E.2d 466,
469 (Ill. App. Ct. 1980). If the state
court dismissed McAtee’s complaint
because it erroneously believed
otherwise, McAtee should have appealed.
Moreover, to excuse procedural
defaulthabeas corpus petitioners must
show cause and prejudice for failing to
fairly present their claims to the state
courts or that a fundamental miscarriage
of justice will occur, Coleman v.
Thompson, 501 U.S. 722, 750 (1991), and
McAtee did not attempt to make either
showing, see Wilson v. Briley, 243 F.3d
325, 329 (7th Cir. 2001).
Accordingly, we AFFIRM the judgment of
the district court.
FOOTNOTES
/1 Pursuant to Circuit Rule 53, this opinion was
originally issued as an unpublished order on
April 23, 2001. The court, upon request, issues
this decision as an opinion.
/2 Illinois has abolished "writs" of mandamus.
Instead, litigants must file a complaint request-
ing an order of mandamus as relief. See 735 ILCS
5/14-102; People ex rel. Braver v. Washington,
724 N.E.2d 68, 70 n.1 (Ill. App. Ct. 1999).