Charles Herbst v. Mark Sevier ( 2011 )

NONPRECEDENTIAL DISPOSITION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 March 23, 2011*
Decided May 23, 2011
Before
FRANK H. EASTERBROOK, Chief Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 10-2171
CHARLIE HERBST, Appeal from the United States District
Petitioner-Appellant, Court for the Northern District of Indiana,
South Bend Division.
v.
No. 3:09cv143
MARK R. SEVIER,
Respondent-Appellee. James T. Moody,
Judge.
ORDER
In a prison disciplinary action, Charlie Herbst, a former Indiana state prisoner,
admitted that he provided “a little legal work” to another inmate, whose family then sent a
money order to Herbst. He was found to have violated a policy of the Indiana Department
of Corrections prohibiting inmates from “giving to or accepting from any person anything
of value without proper authorization.” IND. DEP’T OF CORR., NO. 02-04-101 app. I, MANUAL
OF POLICIES AND PROCEDURES (2004). At first the Department sanctioned Herbst with a loss
*
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. APP.
P. 34(a)(2)(C).
No. 10-2171 Page 2
of good-time credit and a written reprimand, but it suspended the good-time sanction after
an internal appeal, and because the suspended sanction expired after six months, the
Department never imposed the sanction. After exhausting his administrative remedies,
Herbst petitioned for a writ of habeas corpus under 28 U.S.C. § 2254, arguing that the
disciplinary determination was supported by insufficient evidence to comport with due
process. He contends that the disciplinary determination inevitably lengthened his period of
confinement by disqualifying him from receiving a good-time credit for completing his
associate’s degree. He cites the Department’s manual and a corresponding Indiana statutory
provision, under which he contends that the prison “may” grant to inmates one year of
good-time credit for receiving the degree if they have “one (1) year clear of two (2) or more
Class B conduct reports at the time of program completion.” IND. DEP’T OF CORR., NO. 01-04-
101, MANUAL OF POLICIES AND PROCEDURES (2009); IND. CODE § 35-50-6-3.3.
The district court denied Herbst’s petition after concluding that the disciplinary
violation could not have prolonged his confinement, citing two other class B offenses that
disqualified him from the education-based credit. Alternatively, the court concluded that
the disciplinary determination rested on sufficient evidence to comply with the demands of
due process.
We requested supplemental memoranda concerning whether Herbst’s case is now
moot. Our initial review showed that he was released from prison in September 2010, and
the original record did not mention if Herbst continued to suffer collateral consequences
from his disciplinary conviction. See Cochran v. Buss, 381 F.3d 637, 641 (7th Cir. 2004); White
v. Ind. Parole Bd., 266 F.3d 759, 762-63 (7th Cir. 2001).
Herbst’s petition is moot. Article III of the federal constitution limits the jurisdiction
of the federal courts to hearing cases or controversies that remain “live” throughout the
lawsuit. See Spencer v. Kemna, 523 U.S. 1, 7 (1998); Liner v. Jafco, Inc., 375 U.S. 301, 306 n.3
(1964). Herbst’s parole supervisor explains in an affidavit that his office “discharged
[Herbst] from parole on October 12, 2010, and that Mr. Herbst is no longer under the
supervision of this office.” Herbst does not dispute that he is no longer in custody. He
contends, nonetheless, that his case remains live because the disciplinary conviction
disqualified him from receiving good-time credits for obtaining his associates degree, and
those credits might have ended his incarceration a year earlier. But he concedes that the
prison manual and state statute provide only that he “may” receive credits for obtaining his
degree. See Appellant’s Br. 2 (citing IND. CODE § 35-50-6-3.3 and IND. DEP’T OF CORR., NO. 01-
04-101, MANUAL OF POLICIES AND PROCEDURES (2009)); Appellant’s Suppl. Mem. 1-2. The
mere possibility that his sentence “may” have been shortened had Herbst been eligible to
receive discretionary credits does not revive his case because only decisions that “inevitably
No. 10-2171 Page 3
affect the duration of his sentence,” Sandin v. Conner, 515 U.S. 472, 487 (1995); Higgason v.
Farley, 83 F.3d 807, 809 (7th Cir. 1996), are actionable.
Because Herbst cites no other reason that the controversy over his disciplinary
conviction remains “live” despite his expired sentence, the judgment of the district court is
VACATED, and the case is REMANDED with instructions to dismiss it as moot. See, e.g.,
Department of the Treasury v. Galioto, 477 U.S. 556 (1986); United States v. Munsingwear, Inc.,
340 U.S. 36 (1950).