Jackson, Marshall v. Wrigley, Jeff

NONPRECEDENTIAL DISPOSITION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 November 29, 2007*
Decided November 29, 2007
Before
Hon. JOEL M. FLAUM, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 07-1618
MARSHALL JACKSON, Appeal from the United States District
Petitioner-Appellant, Court for the Southern District of Indiana,
Evansville Division
v.
No. 3:06-cv-147-RLY-WGH
JEFF WRIGLEY, Superintendent,
Respondent-Appellee. Richard L. Young,
Judge.
ORDER
Indiana prisoner Marshall Jackson lost 30 days of good-time credit after a
disciplinary board found that he had conspired with a friend to bring
contraband—specifically, four pounds of tobacco—into the Branchville Correctional
Facility. Jackson petitioned for a writ of habeas corpus, see 28 U.S.C. § 2254,
claiming that the hearing did not meet the minimum standards of procedural due
process. The district court dismissed the petition, and we affirm.
*
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).
No. 07-1618 Page 2
A disciplinary board held a hearing to consider the trafficking charges
against Jackson. At the hearing Internal Affairs Investigator Lester Purviance
submitted an investigation report stating that on June 7, 2006, a local park
employee stopped a woman in the park’s restricted area—the same area where
Branchville inmates work. Park employees searched the restroom nearby and
found four pounds of tobacco sealed in a trash bag behind a toilet. The report stated
that Purviance checked the visitor log at Branchville and discovered that the
woman from the park had visited Jackson on June 8, 2006. This was an error; the
visitor log actually showed that she visited Jackson on June 7. Accordingly, the
board postponed the investigation to clarify the dates. It reconvened three days
later, and Purviance submitted a new investigation report that was identical to the
first except that the date of the visit was changed to June 7—the same day
Jackson’s friend was seen in the park. The conduct adjustment board found
Jackson guilty of conspiring to commit trafficking.
After appealing unsuccessfully to the Branchville facility head and Indiana’s
Final Reviewing Authority, Jackson filed the § 2254 petition underlying this appeal.
He claimed that he was deprived of adequate notice of the charges and the
opportunity to prepare an adequate defense; that the disciplinary board was biased,
credited unreliable evidence, and did not adequately explain its decision; and that
there was no evidence of his guilt. The district court concluded that Jackson’s due
process claims were all either procedurally defaulted or meritless.
On appeal Jackson reasserts all of his due process claims, but three of them
are procedurally defaulted. To avoid procedural default, an Indiana prisoner
challenging a disciplinary proceeding must fully and fairly present his federal
claims to the facility head and to the Final Reviewing Authority. See Anderson v.
Benik, 471 F.3d 811, 814 (7th Cir. 2006); Moffat v. Broyles, 288 F.3d 978, 981-82
(7th Cir. 2002). Here, Jackson failed to present to the warden his claims that the
board (1) credited the statement of an unreliable confidential informant, (2) did not
adequately explain its decision, and (3) impermissibly relied on a photograph of
Jackson and his friend that he characterizes as “suggestive.” Nor did Jackson
present the latter claim to the Final Reviewing Authority. Although he now argues
that he presented the “operative facts” underlying these claims at both levels, his
argument is belied by the record. Accordingly, these three claims are procedurally
defaulted. See Anderson, 471 F.3d at 815.
Turning to the merits of the remaining claims, Jackson first argues that the
board deprived him of evidence that he needed to prepare his defense. Specifically,
he argues that he asked for, but never received, a copy of his own statement to
Purviance and a “map and globe” of Indiana. He further contends that he was
denied the right to call two witnesses. Although Jackson had a right to call
witnesses and present documentary evidence at the disciplinary hearing, see Wolff
No. 07-1618 Page 3
v. McDonnell, 418 U.S. 539, 563-67 (1974); Scruggs v. Jordan, 485 F.3d 934, 939-40
(7th Cir. 2007), nothing in the record supports his assertion that he was denied that
right. In fact, the notice of disciplinary hearing shows that he checked a box stating
that he wished to call witnesses, but he did not list any names in the space
provided. The only specific evidence Jackson requested was a list of visitors he had
on three days in June 2006—and he does not deny that the visitor log he received
fulfilled that request.
Next Jackson argues that Investigator Purviance communicated with the
disciplinary board ex parte and effectively acted as its “fourth member.” Although
Jackson was entitled to an impartial disciplinary board, see Wolff, 418 U.S. at 570-
71, the board’s decision to confer with Purviance outside of Jackson’s presence did
not deny him that right, see White v. Ind. Parole Bd., 266 F.3d 759, 767 (7th Cir.
2001). Because prison disciplinary boards are entitled to discuss with an
investigator information that is withheld from a prisoner, such off-the-record
discussions do not, standing alone, give rise to bias. See id. at 767. And the only
explanation that Jackson gives for his assertion that Purviance was the board’s
constructive fourth member is that it postponed the hearing at his request to allow
him to correct the dates on his report. But Jackson has not explained why this
delay was anything other than routine, let alone unusual enough to demonstrate
bias of a magnitude to deny him due process. Cf. Whitford v. Boglino, 63 F.3d 527,
534 (7th Cir. 1995) (noting that even an officer who is tangentially involved in an
investigation can sit on a disciplinary board).
Jackson also argues that there was no evidence to support the finding that he
conspired with his friend to traffic tobacco into the Branchville facility. In the
context of prison disciplinary findings, the requirements of due process are satisfied
as long as some evidence supports the board’s decision. Superintendent, Mass. Corr.
Inst., Walpole v. Hill, 472 U.S. 445, 455 (1985). That standard requires only enough
evidence to demonstrate that the disciplinary decision was not arbitrary. Webb v.
Anderson, 224 F.3d 649, 652 (7th Cir. 2000). Here, the disciplinary board relied on
an investigation report stating that on the same day Jackson’s friend visited him,
she and four pounds of tobacco were found in an unauthorized area of a local park
where Branchville inmates work. This constitutes some evidence that Jackson and
his friend agreed that she would hide tobacco for an inmate to retrieve and smuggle
into the prison. It does not matter whether Jackson worked in the park—he
adamantly asserts that he did not—because he could have agreed with his friend to
have another inmate retrieve the tobacco. Under the “lenient” standard of some
evidence, see id. at 652, the facts in the investigation report sufficiently support the
board’s finding of guilt.
Jackson next argues that the board deprived him of due process because it
did not give him the updated copy of Purviance’s investigation report until the
No. 07-1618 Page 4
second hearing began. Due process requires that prisoners receive written notice of
the claimed violation at least 24 hours before a hearing. Wolff, 418 U.S. at 564;
Scruggs, 485 F.3d at 939. This requirement is satisfied as long as the notice
provides enough of the underlying facts to allow the prisoner to prepare a defense.
See Rasheed-Bey v. Duckworth, 969 F.2d 357, 361-62 (7th Cir. 1992). Jackson
received notice of the charges against him six days before his first hearing. In that
notice, Purviance erroneously wrote that Jackson’s friend visited him on June 8.
But Jackson, having been present at the visit, must have known that his friend
came on June 7. He also had a copy of a visitor log showing the correct date of the
visit. When the disciplinary board postponed the hearing for two days, it gave him
written notice that the reason for the delay was “to clarify some dates on the
investigation.” This information, taken together, was sufficient to put Jackson on
notice of, and allow him to defend against, the charge that his friend visited him on
the same day she was seen in the park. That is all that due process requires. See
id. at 362; see also Kalwasinski v. Morse, 201 F.3d 103, 108 (2d Cir. 1999) (noting
that a potentially misleading error in an investigation report may be excused if
other details put the prisoner on notice of the conduct at issue).
Finally, Jackson argues that the district court improperly applied a
“presumption of correctness” to its review of the disciplinary proceedings. This
argument is frivolous. The court never said it was applying any presumption, and
Jackson states that the only reason he thinks it did is because he disagrees with the
court’s outcome.
AFFIRMED.