Barry Ball v. Greg Grams , 337 F. App'x 566 ( 2009 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 15, 2009*
Decided July 16, 2009
Before
RICHARD D. CUDAHY, Circuit Judge
DIANE P. WOOD, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 08-2910
BARRY L. BALL, Appeal from the United States District
Petitioner-Appellant, Court for the Western District of
Wisconsin.
v.
No. 07-cv-670-bbc
GREG GRAMS,
Respondent-Appellee. Barbara B. Crabb,
Chief Judge.
ORDER
Wisconsin prisoner Barry Ball petitioned the district court for a writ of habeas
corpus under 28 U.S.C. § 2254, alleging that he was deprived of good-time credits in
violation of his due-process rights under the Fourteenth Amendment. The district court
found that the prison authorities acted properly and denied Ball’s petition. We affirm.
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. A PP. P.
34(a)(2).
No. 08-2910 Page 2
Prison officials at Oshkosh Correctional Institution issued Ball a conduct report that
charged him with sexual conduct and battery in violation of the Wisconsin prison code. See
W IS. A DMIN. C ODE §§ DOC 303.12, 303.15. The report concluded, based on the sworn
statements of five confidential informants (only three were notarized), that Ball engaged in
repeated sexual contact with one inmate (Ball’s former cellmate) and attempted sexual
contact with two others (who were not named). The report also charged Ball with striking
his former cellmate on the face hard enough to leave a red mark. The report summarized
each informant’s sworn statement, but did not disclose the identities of the informants,
who feared for their personal safety, or the times and locations of the events.
At the disciplinary hearing, Ball objected to withholding the times and locations of
the incidents and filed a written statement denying all the charges. The disciplinary
committee, though, found Ball guilty of misconduct with his former cellmate. It explained
that it reviewed the sworn statements of the five informants and found the statements to be
credible, detailed, and consistent with one another. The committee also noted that Ball had
provided no evidence to corroborate his denial of wrongdoing. It sentenced Ball to eight
days of adjustment segregation, 360 days of program segregation (resulting in a loss of
good-time credits), and a transfer to another institution.
After exhausting his remedies in the prison, Ball filed a petition for review in the
Wisconsin state courts, as he was required to do before turning to the federal courts.
McAtee v. Cowan, 250 F.3d 506, 508 (7th Cir. 2001). The Wisconsin Court of Appeals, the last
state court to hear his case, affirmed the denial of Ball’s petition. See State of Wisconsin ex
rel. Ball v. Frank, 712 N.W.2d 87, 2006 WL 407689 (Wisc. App. 2006) (unpublished order).
That court concluded that the notice Ball received was sufficient for him to mount a
defense against the charges of a sexual relationship with his former cellmate and a battery
against him. It expressed concern about withholding details regarding the two other
alleged instances of attempted sexual conduct, but concluded that its concern was
mitigated because Ball was not punished for those acts, only for those against his cellmate.
As to the charges concerning Ball’s cellmate, because the two men were housed together for
only about 60 days, the court concluded that Ball had notice of the general time of the
offense. Finally, the court refused to discredit the two statements that were not notarized
because they were made under oath as required by the Wisconsin Administrative Code
§ DOC 303.81(5).
Because the prison’s disciplinary proceeding deprived Ball of good-time credits, he
properly brought his petition under 28 U.S.C. § 2254 to claim that the proceeding denied
him due process. See Wolff v. McDonnell, 418 U.S. 529, 557, 572 (1974). Furthermore,
No. 08-2910 Page 3
because the Wisconsin Court of Appeals decided the merits of Ball’s challenge to his prison
discipline, the limited-review provisions of 28 U.S.C. § 2254(d) apply. White v. Ind. Parole
Bd., 266 F.3d 759, 766 (7th Cir. 2001). As relevant here, federal collateral relief is not
available unless the state-court adjudication was contrary to or an unreasonable application
of federal law as determined by the Supreme Court. 28 U.S.C. § 2254(d)(1). We review
de novo the district court’s application of these principles in considering a petition for a
writ of habeas corpus. Julian v. Bartley, 495 F.3d 487, 491 (7th Cir. 2007).
On appeal Ball raises two procedural challenges to the district court’s decision. First
he complains that the district court incorrectly placed the burden on him to show that the
decision of the Wisconsin court was contrary to the precedent of the Supreme Court. But it
is Ball, not the prison, who bears that burden. See Badelle v. Correll, 452 F.3d 648, 659 (7th
Cir. 2006); Henry v. Page, 223 F.3d 477, 480 (7th Cir. 2000). Ball next contends that he was
not given a chance to argue fully his petition to the district court. But the court followed
the procedures in the Rules Governing Section 2254 Cases. Ball submitted a petition setting
forth his proposed grounds for relief, see Rule 2(c), he replied to the state’s answer to his
petition, see Rule 5(e), and he even filed a 21-page objection to the magistrate judge’s report
and recommendation—all of which the district court considered. And, finally, Ball does
not identify any issue that he was prevented from raising.
Ball’s most serious attack surrounds the absence of any dates or locations in the
prison’s charging document. He asserts that he was unable to put on an effective defense
without this information. He also contests the Wisconsin court’s conclusion that the
relationship took place during the 60-day period in which the two men were double-celled
because the time of the offense was never stated in the charging document or anywhere
else in the administrative record. He insists, also, that the district court should have held
an evidentiary hearing to identify the prison’s reasons for not revealing the locations and
times, which Ball believes would not withstand scrutiny.
The Supreme Court has held the notice of prison disciplinary charges is sufficient if
it “inform[s] [Ball] of the charges and . . . enable[s] him to marshal the facts and prepare a
defense.” Wolff, 418 U.S. at 564. The notice should alert the inmate to the rule that he
allegedly violated and summarize the facts underlying the charge. Whitford v. Boglino, 63
F.3d 527, 534 (7th Cir. 1995). In this case, the prison told Ball whom he was accused of
acting against (his former cellmate) and what offenses he was accused of committing
(sexual acts and a battery). Even without knowing the precise dates and locations of the
misconduct, Ball could still gather evidence to mount a defense against the charges. For
example, in addition to his own sworn statement, he could have sought the testimony of
his former cellmate to support his denial of any sexual misconduct or battery.
No. 08-2910 Page 4
Although the dates and locations might have helped Ball, our task is limited to
deciding whether the Wisconsin court’s conclusion that the notice was sufficient is an
unreasonable application of Supreme Court precedent. See 28 U.S.C. § 2254(d)(1). The
decision is reasonable if it is “minimally consistent with the facts and circumstances of the
case.” Schultz v. Page, 313 F.3d 1010, 1015 (7th Cir. 2002). Ball cites to district-court and
circuit-court decisions that he believes suggest that the Wisconsin court was wrong. See
McCollum v. Miller, 695 F.2d 1044, 1048-89 (7th Cir. 1982); Washington v. Chrans, 769 F. Supp.
1045, 1054 (C.D. Ill. 1991); Franklin v. Israel, 537 F. Supp. 1112, 1117-18 (W.D. Wisc. 1982);
Rinehart v. Brewer, 483 F. Supp. 165, 169 (S.D. Iowa 1980). But these cases show, at most,
that another court may have viewed the sufficiency of notice differently than the Wisconsin
court, not that the Wisconsin court’s decision was unreasonable. See Schriro v. Landrigan,
550 U.S. 465, 473 (2007) (“The question under AEDPA is not whether a federal court
believes the state court’s determination was incorrect but whether that determination was
unreasonable—a substantially higher threshold.”). And even McCollum recognizes that
prison officials may withhold the time and place of an alleged offense if other procedural
safeguards are present to guard against errors, such as requiring that statements be under
oath, as was done here. 695 F.2d at 1048-49. Without any Supreme Court case requiring
dates and locations, it was not unreasonable for the Wisconsin court to conclude that the
notice was sufficient. Therefore the federal district court did not need to inquire further
into the prison’s reasons for not divulging that information.
Finally, Ball objects that two of the confidential statements were not notarized, and
therefore the disciplinary committee should have disregarded them. The Wisconsin Court
of Appeals rejected this contention because the statements were made under oath. Ball has
pointed to no Supreme Court case that compels, as a matter of due process, the opposite
conclusion. The case he does cite, Aguilar v. Texas, 378 U.S. 108, 114-15 (1964), discusses the
use of informants in finding probable cause in a criminal context—inapplicable to prison
disciplinary proceedings. See Wolff, 418 U.S. at 556 (“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.”). Accordingly, the Wisconsin court did not unreasonably
decide that the disciplinary committee could rely on the sworn but unnotarized statements.
We AFFIRM the district court’s denial of Ball’s petition for a writ of habeas corpus.