Smith, Eric D. v. Jordan, Bruce , 146 F. App'x 53 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 11, 2005*
Decided August 12, 2005
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-1186
Appeal from the United
ERIC D. SMITH, States District Court for the
Petitioner-Appellant, Northern District of Indiana,
South Bend Division.
v.
BRUCE JORDAN, Superintendent, No. 3:04cv0501 AS
Westville Correctional Facility, Allen Sharp, Judge.
Respondent-Appellee.
Order
Indiana’s prison system revoked 189 days of Eric Smith’s earned-credit time after
a conduct adjustment board concluded that he had committed four unrelated viola-
tions of the prison’s rules within one year. Smith seeks a writ of habeas corpus under
28 U.S.C. §2254, contending that the Board violated his constitutional rights. The dis-
trict judge denied this petition but did not mention Smith’s best argument: that the
Board did not allow him to attend the hearing.
The Board’s opinion asserts that Smith declined the opportunity to attend. Indi-
ana’s brief contends that this statement is conclusive. It is not. Smith stated in his
petition that he wanted to attend but was prevented from doing so. This has the
status of an affidavit, because the petition was signed under penalty of perjury, as all
petitions for collateral relief must be. See Rule 2(c)(5) of the Rules Governing Section
* After an examination of the briefs and the record, we have concluded that oral argument is un-
necessary, and the appeal is submitted on the briefs and the record. See Fed. R. App. P. 34(a); Cir.
R. 34(f).
No. 05-1186 Page 2
2254 Cases in the United States District Courts. A prison disciplinary board is not a
court; its statements lack the presumption of correctness that attend judicial findings
of fact, which may be overcome only under the conditions stated in 28 U.S.C.
§2254(e). See Piggie v. McBride, 277 F.3d 922, 926 (7th Cir. 2002). Statements that a
prison disciplinary board makes about the procedures it has used to resolve a dispute
are open to contest in the normal way, and when the prisoner controverts the board’s
statement with sworn evidence the “normal way” is a hearing in federal court. See
Carroll v. Yates, 362 F.3d 984 (7th Cir. 2004). The judge may not assume that the
prisoner is lying and reject his position out of hand. See Taylor v. United States, 287
F.3d 658 (7th Cir. 2002).
Because Smith controverted the Board’s assertion under oath, he is entitled to a
hearing. If after receiving testimony and other evidence the district judge concludes
that Smith is telling the truth, he should issue a conditional writ of habeas corpus, di-
recting the state to restore the good-time credits unless it gives Smith the opportu-
nity to attend a proper hearing; but if the judge concludes that Smith is lying, he
should deny the petition and refer the matter to the United States Attorney for con-
sideration of a prosecution for perjury.
Smith’s other arguments in support of his petition have been considered but do not
require discussion. The district court resolved them correctly.
VACATED AND REMANDED