Holleman, Robert L. v. Finnan, Alan , 259 F. App'x 878 ( 2008 )

NONPRECEDENTIAL DISPOSITION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 December 14, 2007*
Decided January 10, 2008
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 07-2044
ROBERT LEE HOLLEMAN, Appeal from the United States District
Petitioner-Appellant, Court for the Northern District of
Indiana, South Bend Division
v.
No. 3:07-CV-41 AS
ALAN FINNAN,
Respondent-Appellee. Allen Sharp,
Judge.
ORDER
Indiana inmate Robert Holleman appeals the dismissal of his petition for a
writ of habeas corpus filed under 28 U.S.C. § 2254. Holleman was involved in an
altercation with guards at Westville Correctional Facility. The Conduct Adjustment
Board found him guilty of rioting, assaulting prison staff, and physically resisting
prison staff. He was sentenced to a total of 19 months’ disciplinary segregation
with the final 3 months’ suspended. In his § 2254 petition Holleman claims that he
*
Appellee Alan Finnan notified this court that he was never served with process
in the district court and would not be filing a brief or otherwise participating in this
appeal. After examining the appellant’s brief and the record, we have concluded that
oral argument is unnecessary. Accordingly, the appeal is submitted on the appellant’s
brief and the record. See FED. R. APP. P. 34(a)(2).
No. 07-2044 Page 2
was deprived of due process at his disciplinary hearing because he was not given
access to a video tape that he asserts would have exonerated him. The district court
dismissed the petition because the sanction imposed will not extend the duration of
Holleman’s incarceration. Our review is de novo. Moore v. Battaglia, 476 F.3d 504,
506 (7th Cir. 2007).
A prisoner whose misconduct has been sanctioned only with disciplinary
segregation is not “in custody” for purposes of § 2254 and cannot use habeas corpus
to challenge the sanction. Montgomery v. Anderson, 262 F.3d 641, 643 (7th Cir.
2001). Disciplinary segregation affects the severity, not the duration, of
confinement, and Holleman should have challenged a sanction that affects only the
severity of incarceration under 42 U.S.C. § 1983, which he did not do. Id. at 643-44.
It may be true, as Holleman insists, that the imposition of disciplinary segregation
will adversely affect his future eligibility for parole. Nonetheless, Holleman cannot
use § 2254 to challenge the deprivation of an opportunity for accelerated release
from custody. See Hadley v. Holmes, 341 F.3d 661, 664 (7th Cir. 2003); Zimmerman
v. Tribble, 226 F.3d 568, 571 (7th Cir. 2000). Unlike Indiana’s system of awarding
good-time credits, which creates an entitlement to accelerated release, Montgomery,
262 F.3d at 645, the state’s parole statute offers a mere opportunity, not an
entitlement, see Huggins v. Isenbarger, 798 F.2d 203, 206 (7th Cir. 1986); Murphy v.
Ind. Parole Bd., 397 N.E.2d 259, 263 (Ind. 1979). Acquittals on the disciplinary
charges would not inevitably have hastened Holleman’s release from incarceration,
see Zimmerman, 226 F.3d at 571-72, and the possible parole consequences do not
bring Holleman’s complaint about the video tape within the scope of § 2254.
AFFIRMED.