NONPRECEDENTIAL DISPOSITION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 August 28, 2012*
Decided August 29, 2012
Before
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 12‐1734
LAVANCE DAVENPORT, Appeal from the United States District
Petitioner‐Appellant, Court for the Southern District of Illinois.
v. No. 11‐cv‐539‐DRH
WENDY J. ROAL, David R. Herndon,
Respondent‐Appellee. Chief Judge.
O R D E R
Federal inmate Lavance Davenport claims he was disciplined without due process.
He filed a petition for a writ of habeas corpus, see 28 U.S.C. § 2241, which the district court
dismissed. We affirm that decision.
*
Appellee Wendy J. Roal was not served with process in the district court and is not
participating in this appeal. After examining the appellant’s brief and the record, we have
concluded that oral argument is unnecessary. Thus, the appeal is submitted on the
appellant’s brief and the record. See FED. R. APP. P. 34(a)(2)(C).
No. 12‐1734 Page 2
Davenport was sentenced to 70 months’ imprisonment in January 2004 after
pleading guilty to drug crimes involving crack cocaine. See 21 U.S.C. §§ 841(a)(1), 860(a). In
June 2005, while serving this sentence at a federal prison in Tennessee, Davenport was
caught hiding a cell phone in a mop. When a corrections officer tried to place him in
handcuffs, Davenport allegedly hit the guard in the chest, shoved him into a wall, and ran
for the woods outside the minimum‐security camp. He pleaded guilty to a misdemeanor
charge of possessing contraband while incarcerated, 18 U.S.C. § 1791(a)(2), for which he was
sentenced to one additional day in prison. Davenport also received a disciplinary report
accusing him of possessing the phone, assaulting the guard, refusing an order to place his
arms in a position to be cuffed, and escape. A disciplinary hearing officer credited the
guard’s written report over Davenport’s testimony that he never assaulted the guard or left
the prison camp even if he did have the cell phone. The hearing officer found Davenport
guilty except for the charge of refusing the guard’s order. But later, after Davenport’s
administrative appeal, the hearing officer reconsidered the escape charge and instead found
Davenport guilty of the lesser infraction of escape followed by a voluntary return within 24
hours. Davenport lost good time and was transferred to a more secure facility and placed in
segregation.
Davenport was released from prison in May 2008 after the district court had reduced
his sentence under 18 U.S.C. § 3582(c)(2). We cannot tell from the record whether Davenport
had received the hearing officer’s revised decision before his release, or even whether that
decision had yet been issued. Davenport apparently let the matter drop while on supervised
release, but in December 2010 he was sentenced to another 10 years in prison after pleading
guilty to new charges of conspiracy and distribution of crack, 21 U.S.C. §§ 846, 841(a)(1).
Because of these crimes the district court also revoked Davenport’s supervised release and
ordered him to serve another 18 months in prison. See 18 U.S.C. § 3583(e)(3). Only then,
after he was back in prison on these new violations, did Davenport refocus on the
disciplinary matter.
Davenport is now imprisoned at the federal penitentiary in Marion, Illinois. In his
§ 2241 petition he claims that he was not allowed to call witnesses or present other evidence
when the hearing officer reconsidered the escape charge (Davenport also raised other
allegations, but on appeal he has abandoned the others). According to Davenport, this
restriction on the presentation of new evidence denied him due process, and he seeks
restoration of his lost good time. The district court rejected this claim; in dismissing
Davenport’s petition, the court reasoned that the hearing officer was not obliged to receive
more evidence because, by Davenport’s account, the purpose of the remand was “further
consideration” of the existing evidence. Davenport challenges this conclusion on appeal.
No. 12‐1734 Page 3
As an initial matter, we question whether Davenport satisfied the “in custody”
element of § 2241 when he filed his petition. By that point Davenport had fully served the
prison component of his 2004 conviction, and his supervised release for that offense already
had been revoked. Arguably, then, he was in prison—“in custody”—only because of new
criminal conduct, not because of the 2004 sentence he was serving when the alleged escape
occurred. See 28 U.S.C. § 2241(c)(3) (“The writ of habeas corpus shall not extend to a
prisoner unless . . . [h]e is in custody in violation of the Constitution or laws or treaties of
the United States.”); Maleng v. Cook, 490 U.S. 488, 490–91 (1989); Rivas‐Melendrez v.
Napolitano, — F.3d —, 2012 WL 3104824, at *5 (7th Cir. Aug. 1, 2012). In fact, because
Davenport’s incarceration on the 2004 conviction was cut short immediately upon the
district court’s amendment of his sentence under § 3582(c)(2), he did not serve any
additional period of imprisonment as the result of this sanction.
Even if the disciplinary matter is still subject to review, however, Davenport has not
persuaded us that the district court erred in dismissing his § 2241 petition. Inmates have a
due process right to notice and an opportunity to call witnesses and present other evidence
at disciplinary hearings, Wolff v. McDonnell, 418 U.S. 539, 566 (1974), but a replay of the
hearing is not required if an inmate’s administrative appeal results in substitution of a lesser
charge premised on the same facts as the original. See Northern v. Hanks, 326 F.3d 909,
910–11 (7th Cir. 2003). Here, although the escape charge against Davenport was altered
from a Code 102 to a Code 200 when the matter was remanded to the hearing officer, the
revision rests on the same underlying facts and differs only in that the substituted infraction
is less severe than the charge that it replaced. Compare FED. CORR. INST. MEMPHIS,
ADMISSION & ORIENTATION HANDBOOK 68 (2012), http://www.bop.gov/locations/
institutions/mem/MEM_aohandbook.pdf (prohibited act 102), with id. at 69 (prohibited act
200). Even by Davenport’s account, the purpose of the remand was to reconsider the
evidence already adduced, and when the hearing officer gave that evidence a second look,
he focused on Davenport’s contention that other inmates had seen him in the prison camp
after he allegedly ran for the woods. The hearing officer obviously credited those reported
sightings, which explains why the escape charge was reduced to the lesser charge of
escaping but voluntarily returning within 24 hours. Moreover, Davenport does not identify
the witnesses he would have called or tell us what they would have said. And without any
claim that he was harmed by their absence, due process was not offended. See Jones v. Cross,
637 F.3d 841, 847 (7th Cir. 2011) (applying harmless‐error analysis to denial of prisoner’s
right to call witnesses at disciplinary hearing); Piggie v. Cotton, 342 F.3d 660, 666 (7th Cir.
2003) (same); see also Howard v. U.S. Bureau of Prisons, 487 F.3d 808, 812–13 (10th Cir. 2007).
Accordingly, we AFFIRM the judgment of the district court.
