Cochran, Larry v. Buss, Edwin

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3402
LARRY COCHRAN,
Petitioner-Appellant,
v.
EDWARD BUSS, Superintendent,
Respondent-Appellee.
____________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 03 C 305—Allen Sharp, Judge.
____________
1
SUBMITTED APRIL 28, 2004 —DECIDED AUGUST 24, 2004
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Before RIPPLE, KANNE and DIANE P. WOOD, Circuit Judges.
PER CURIAM. Larry Cochran, an Indiana state prisoner,
filed a pro se petition for a writ of habeas corpus. See 28
U.S.C. § 2254. Mr. Cochran challenged a prison disciplinary
sanction that he had received for physically resisting a staff
1
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 the record. See Fed. R. App. P.
34(a)(2).
2 No. 03-3402
member, which resulted in a one-month loss of telephone
privileges and a suspended deprivation of sixty-days’ good
time credit. Mr. Cochran claimed that the prison disciplin-
ary board had denied him due process of law because it had
refused his requests to continue the hearing and to present
an additional witness and because it had found him guilty
without sufficient evidence. The district court concluded
that Mr. Cochran had failed to assert a cognizable claim
under § 2254 and dismissed the petition. For the reasons set
forth in this opinion, we vacate the judgment of the district
court and remand the case with direction to dismiss as
moot.
1.
Indiana state prisoners have a liberty interest in good time
credits, and they are entitled to due process before the State
may revoke those credits. See McPherson v. McBride, 188 F.3d
784, 785-86 (7th Cir. 1999). The disciplinary sanction, when
viewed in its entirety, imposed upon Mr. Cochran affected
both the duration of his confinement (at least potentially)
and a condition of his confinement. We have explained
previously that a prisoner challenging the fact or duration
of his confinement must seek habeas corpus relief; a pris-
oner challenging a condition of his confinement, by contrast,
must seek relief under 42 U.S.C. § 1983:
State prisoners who want to challenge their convictions,
their sentences, or administrative orders revoking good-
time credits or equivalent sentence-shortening devices,
must seek habeas corpus, because they contest the fact
or duration of custody. See, e.g., Preiser v. Rodriguez, 411
U.S. 475, 93 S. Ct. 1827, 36 L.Ed.2d 439 (1973); Edwards
v. Balisok, 520 U.S. 641, 117 S. Ct. 1584, 137 L.Ed.2d 906(1997). State prisoners who want to raise a constitutional
No. 03-3402 3
challenge to any other decision, such as transfer to a
new prison, administrative segregation, exclusion from
prison programs, or suspension of privileges, must
instead employ § 1983 or another statute authorizing
damages or injunctions—when the decision may be chal-
lenged at all, which under Sandin v. Conner, 515 U.S. 472,
115 S. Ct. 2293, 132 L.Ed.2d 418 (1995), and Meachum v.
Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L.Ed.2d 451 (1976),
will be uncommon.
2
Moran v. Sondalle, 218 F.3d 647, 650-51 (7th Cir. 2000). Mr.
Cochran’s loss of telephone privileges affected the condi-
tions of his custody; the suspended deprivation of good
time credits, however, could have lengthened his confine-
ment. Consequently, he filed a habeas corpus petition to
contest this potential loss of good time credits.
Section 2254 requires that the petitioner be “in custody.”
28 U.S.C. § 2254(a); see Maleng v. Cook, 490 U.S. 488, 490-91
(1989) (per curiam). In Preiser v. Rodriguez, 411 U.S. at 487-89,
the Supreme Court established that actions for the restoration
of good time credits fall within the “core” of habeas corpus
because they go directly to the constitutionality of the pris-
2
See also Williams v. Wisconsin, 336 F.3d 576, 579 (7th Cir. 2003)
(“For prisoners, the difference between a civil rights action and
a collateral attack is easy to describe. Challenges to conditions of
confinement (such as pollution in the prison or deliberate
indifference to serious medical needs) fall under § 1983. Attacks
on the fact or duration of confinement come under § 2254.”
(citations omitted)); DeWalt v. Carter, 224 F.3d 607, 614-16 (7th Cir.
2000) (discussing Supreme Court precedent on when a plaintiff
may use § 1983 to bring action related to his conviction or
sentence); Sylvester v. Hanks, 140 F.3d 713, 714 (7th Cir. 1998)
(“Section 2254 is the appropriate remedy only when the prisoner
attacks the fact or duration of ‘custody.’ ”).
4 No. 03-3402
oner’s confinement itself and seek either immediate release
or a shortened length of confinement. See also Walker v. O’Brien,
216 F.3d 626, 633 (7th Cir. 2000) (adhering to circuit prece-
dent that § 2254 is the correct vehicle for contesting loss of
good time credit in prison disciplinary proceedings). The
question before us is whether the fact that Mr. Cochran’s
loss of good time credits was suspended dictates a different
course than the one set forth in Preiser.
In analyzing this question, we must focus not on Mr.
Cochran’s underlying sentence to confinement, but on the
sentence of the disciplinary board whose action in imposing
a suspended loss of good time credits created the very real
possibility that Mr. Cochran would spend more time behind
bars than would have occurred in the absence of the
disciplinary matter. As far as the record in this case reflects,
at the time Mr. Cochran filed his habeas petition, the prison
disciplinary board could have revoked the suspended
sentence of loss of good time credit and imposed a longer
confinement than would have applied absent the disciplin-
ary proceeding. Therefore, we believe that this distinct
possibility of the loss of good time credits requires that his
claim be cognizable in a habeas action rather than in an
action under § 1983.
Our decision on this point is grounded firmly in the ra-
tionale of the Supreme Court’s precedents in this area. It has
long been established that “custody” does not require
physical confinement. For instance, in Jones v. Cunningham,
371 U.S. 236 (1963), the Supreme Court held that a person
free on parole was “in custody” of the parole board for pur-
poses of habeas corpus. His parole “involve[d] significant
restraints on petitioner’s liberty.” Id. at 242; see also Hensley
v. Mun. Court, 411 U.S. 345, 351-52 (1973) (ruling that indivi-
duals released on bail or on their own recognizance pending
trial or pending appeal are “in custody”); Tinder v. Paula, 725
No. 03-3402 5
F.2d 801, 803 (1st Cir. 1984) (noting that probationers and
parolees have been found to meet the “in custody” require-
ment); United States ex rel. Wojtycha v. Hopkins, 517 F.2d 420,
423-24 (3d Cir. 1975) (holding that a prisoner serving a
suspended sentence, placed on probation and fined met the
custody requirement); 17A Charles Alan Wright et al., Federal
Practice and Procedure § 4262 (2d ed. 1988 & Supp. 2004). We
believe that the action of the prison disciplinary board with
respect to Mr. Cochran’s good time credits is sufficiently
analogous to the situations presented in these cases that, by
a parity of reasoning, his claim should be evaluated by the
same process—habeas corpus. Therefore, we hold that Mr.
Cochran presented a cognizable claim under § 2254. See
Sammons v. Rodgers, 785 F.2d 1343, 1345 (5th Cir. 1986) (hold-
ing that court had jurisdiction to review petitioner’s con-
viction when his sentence had been suspended, and that
suspension had not yet expired, because “[n]othing in the
record indicate[d] that the suspended sentence . . . d[id] not
carry with it possible revocation of suspension or other
adverse action”).
2.
Although Mr. Cochran appropriately filed a habeas corpus
petition, the suspended sanction was never imposed against
Mr. Cochran, and the time for imposing the sanction has
now expired. All risk of Mr. Cochran’s serving additional
time as a result of the disciplinary board’s action has now
evaporated. See Appellee’s Br. at 3. A case becomes moot
when “it no longer present[s] a case or controversy under
Article III, § 2, of the Constitution.” Spencer v. Kemna, 523
U.S. 1, 7 (1998). A petition for habeas corpus filed while a
person is in custody does not become moot at the end of
custody if the person suffers sufficient collateral conse-
quences from the sentence. See id. at 7-8 (explaining that,
6 No. 03-3402
once a convict’s sentence ends, “some concrete and continu-
ing injury other than the now-ended incarceration or pa-
role—some ‘collateral consequence’ of the conviction—
must exist” to maintain the suit); see also Carafas v. LaVallee,
391 U.S. 234, 237-38 (1968) (holding that prisoner’s uncondi-
tional release did not render his habeas challenge moot be-
cause his criminal conviction precluded him from holding
public office, voting in state elections and serving as a juror);
A.M. v. Butler, 360 F.3d 787, 790 (7th Cir. 2004) (finding that
habeas petition was not moot because juvenile delinquency
adjudication created sufficient adverse collateral conse-
quences); McClendon v. Trigg, 79 F.3d 557, 558 (7th Cir. 1996)
(dismissing as moot a § 2254 petition to set aside prison
disciplinary action that took away good time credits due to
petitioner’s subsequent death). The Supreme Court has es-
tablished a presumption of collateral consequences from a
3
wrongful criminal conviction, but the Court has not extended
this presumption to prison disciplinary sanctions. See Diaz
v. Duckworth, 143 F.3d 345, 346 (7th Cir. 1998) (citing Spencer v.
Kemna, 523 U.S. 1 (1998)).
Whether it is possible for a prisoner to allege sufficient
consequences from a disciplinary action to maintain an
Article III case or controversy after custody has ended re-
4
mains an open question. See Diaz, 143 F.3d at 346-47. This
case does not require that we decide that question. Mr.
Cochran alleges in general terms only that he lost his pre-
ferred prison living arrangement, his prison job and his
3
See, e.g., Spencer v. Kemna, 523 U.S. 1, 7-14 (1998); Sibron v. New
York, 392 U.S. 40, 55-56 (1968); Pollard v. United States, 352 U.S.
354, 358 (1957).
4
Accord Wilson v. Terhune, 319 F.3d 477, 481 (9th Cir. 2003)
(holding that collateral consequences are not presumed in prison
disciplinary proceedings).
No. 03-3402 7
eligibility for rehabilitative programs and that the disciplinary
report has damaged his prison record. These alleged de-
privations, however, are not sufficient collateral consequences.
See Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) (stating that
not every prison action that adversely affects the prisoner
requires due process, such as a transfer to a substantially
less agreeable prison and an unfavorable classification for
rehabilitative programs); see also Kentucky Dep’t of Corr. v.
Thompson, 490 U.S. 454, 460-61 (1989) (stating, in § 1983 con-
text, that prisoners do not have an inherent liberty interest
in the prison setting); DeWalt v. Carter, 224 F.3d 607, 613 (7th
Cir. 2000) (stating, in § 1983 context, that prisoners have no
liberty or property interest in their prison job). Furthermore,
the record does not suggest any such lingering disability.
Conclusion
Accordingly, the judgment of the district court is vacated,
and the case is remanded with direction that it be dismissed as
moot.
VACATED and REMANDED WITH DIRECTION
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-24-04