Richards, Alvin v. Buss, Edwin , 190 F. App'x 491 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 19, 2006*
Decided July 24, 2006
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 05-4331 Appeal from the United States
District Court for the
ALVIN RICHARDS, Northern District of Indiana,
Petitioner-Appellant, South Bend Division.
v. No. 3:04CV0708 AS
EDWARD BUSS, Allen Sharp, Judge.
Respondent-Appellee.
ORDER
Indiana prisoner Alvin Richards petitioned the district court for a writ of habeas
corpus under 28 U.S.C. § 2254, alleging that the prison conduct adjustment board
(“CAB”) demoted him to a lower credit class and deprived him of earned good time
credits without due process. The district court found that the prison authorities acted
properly and denied Richards’s petition. We affirm.
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and
record. See Fed. R. App. P. 34(a)(2).
No. 05-4331 Page 2
In 2004 an officer at Indiana State Prison began investigating Richards after
thousands of dollars were deposited to his prison commissary account via money order,
bringing the balance of his account to over $10,000. Richards claimed that a relative
sent him the money to pay for his attorney. The officer’s investigation revealed,
however, that individuals from Greenwood, Wisconsin, paid the money to Richards for
contraband that he trafficked in the prison, and that they forged the signatures of
Richards’s relative on the money orders to avoid detection. The officer also secured
corroborating statements from fellow prisoners, some of whom stated that they had
received tobacco from Richards in the past. At the close of his investigation the officer
compiled a confidential report of his findings (the CAB would later refer to this
document as the “Case Report”) and placed it in Richards’s case file for review.
Based on this information, the CAB charged Richards with the infraction of
“giving or receiving anything of value without authorization.” Richards was provided
a “Notice of Disciplinary Hearing” a “Report of Conduct,” and “Report of Investigation”
summarizing the officer’s findings. Richards, however, requested the CAB to produce
additional information, which the CAB claimed it had either already done, was unable
to do because Richards had not specified what evidence he sought, or was not
empowered to do. After stating that it reviewed all of the evidence presented in
Richards’s case file, the CAB found that he “did receive a large amount of money” and
accordingly found him guilty. The CAB thus demoted Richards from a credit class of
I to II, and deprived him of 180 days earned credit time.
After Richards exhausted his appeals in the prison administrative system he
filed a petition for a writ of habeas corpus, alleging that the CAB violated due process
by denying him the opportunity (1) to review the “Report of Investigation” and money
order receipts; (2) to present the “Report of Investigation” and money order receipts to
the CAB; and (3) to call as witnesses the individuals from Wisconsin who forged the
signature of Richards’s relative on the money orders and the prisoner who stated
Richards sold him tobacco. He also argued that the CAB’s finding of guilt was not
supported by “some evidence,” and that it failed to state adequately the reasons
underlying its finding. The district court denied Richards’s petition in its entirety.
Richards now appeals, renewing the arguments he made to the district court.
Richards has a protected liberty interest in his earned good time credits and credit-
earning class and may not be deprived of either without due process. See Piggie v.
McBride, 277 F.3d 922, 924 (7th Cir. 2002) (per curiam). Due process in this context
requires advance written notice of the charges, a right to be heard before an impartial
decision maker, and a written statement presenting the evidence relied on and reasons
for the disciplinary action. See Piggie v. Cotton, 344 F.3d 674, 677 (7th Cir. 2003)
(citing Wolff v. McDonnell, 418 U.S. 539, 564-71 (1974)). Prisoners also have a
conditional right to access and present documentary evidence and testimony. McBride,
No. 05-4331 Page 3
277 F.3d at 924-25. This right extends only to documentary evidence that is
exculpatory in nature, id.; Rasheed-Bey v. Duckworth, 969 F.2d 357, 361 (7th Cir.
1992), and the right to access and present such documentary evidence or testimony
may be limited if “institutional safety or correctional goals” are compromised by the
evidence or testimony, see Pannell v. McBride, 306 F.3d 499, 503 (7th Cir. 2002) (per
curiam). A finding of guilt need only be supported by “some evidence in the record.”
See Webb v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000) (citing Superintendent, Mass.
Corr. Inst., Wapole v. Hill, 472 U.S. 445, 455 (1985)).
Richards first asserts that the CAB violated due process by denying him the
opportunity to review and present the “Report of Investigation” and money order
receipts to the CAB. As a preliminary matter, the record shows that the CAB provided
Richards with this report when it gave him the “Notice of Disciplinary Hearing,” so his
argument fails on that score. We can assume, however, that Richards is also referring
to the confidential Case Report, see Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir.
2001) (“[P]ro se pleadings are held to less exacting standards than those prepared by
counsel and are to be liberally construed . . . .”); the similarity in the names of the two
documents supports such an assumption. But even if Richards intended to refer to this
document his argument fails. A review of the Case Report reveals that it is not
exculpatory; it presents the investigative findings in detail, including the testimony of
prisoners who took part in Richards’s contraband trade. Furthermore, allowing
Richards access to this confidential report would provide him with the identities of the
prisoners who cooperated with the investigation, thus compromising their safety. See
Whitford v. Boglino, 63 F.3d 527, 535 (7th Cir. 1995) (“A prison disciplinary board may
rely on the testimony of confidential informants, and it may keep their identities (and
information relating to their identities) secret, because ‘revealing the names of
informants . . . could lead to the death or serious injury of . . . the informants.’”)
(quoting Mendoza v. Miller, 779 F.2d 1287, 1293 (7th Cir. 1985)).
Richards’s argument that he was deprived of the opportunity to review and
present the money order receipts likewise fails. He asserts that, had he been given the
opportunity to review the receipts, the signatures on the receipts would have shown
that he received money only from his relative. But the CAB reviewed the receipts (as
well as separate evidence that the signatures on them were forgeries) before reaching
its decision; it thus would have taken into account any exculpatory value that they
possessed. See White v. Ind. Parole Bd., 266 F.3d 759, 768 (7th Cir. 2001) (stating that
there is no denial of opportunity to review and present evidence where CAB reviewed
the evidence in question as part of case file).
Richards next argues that the CAB impermissibly denied him the opportunity
to present testimony of the individuals from Wisconsin who forged the signatures of
his relative on the money order receipts and the prisoner who told the investigator that
No. 05-4331 Page 4
Richards sold tobacco. The CAB has no authority to compel out-of-state individuals to
testify. See id. (stating that CAB “lacked the compulsory process to require civilians
to appear before it”). It also acted within its authority to deny Richards’s request to
compel the testimony of the prisoner who told the investigator that Richards sold
tobacco. The CAB denied Richards’s request to compel the prisoner’s testimony on the
basis that Richards did not specify who that offender was. Richards, of course, was
trying to claim that he had not sold contraband to anyone; it therefore would have been
hard for him to identify which person had allegedly fabricated a claim against him.
Nevertheless, there are two reasons why the CAB’s denial of his request can stand.
First and most importantly, Richards lacks the right of confrontation in this context,
see Rasheed-Bey, 969 F.2d at 361, and compelling the prisoner to testify would
compromise his safety by revealing his identity, see Whitford, 63 F.3d at 535.
Additionally, we have held before that even a violation of the right to call witnesses is
harmless unless there is evidence that the testimony could have aided the prisoner’s
defense. See Piggie, 344 F.3d at 678. There is no such evidence here.
Richards’s final argument is that the CAB’s guilty finding is not supported by
“some evidence” and adequately explained. The “some evidence” standard requires no
more than a mere “modicum of evidence,” and we will uphold the CAB’s decision if
there is any evidence to support its finding of guilt. See Webb, 224 F.3d at 652 (7th Cir.
2000) (citing Hill, 472 U.S. at 455). Here, the Case Report showed that Richards was
paid to traffic tobacco, and the CAB succinctly explained that this evidence, coupled
with the fact that he received “a large amount of money” without proper authorization,
pointed to Richards’s guilt. The district court thus did not err in concluding that some
evidence supported the CAB’s finding of guilt, and that the CAB adequately explained
the reasoning underlying its finding.
AFFIRMED.