Wilson-El, Shavaughn v. Finnan, Alan

NONPRECEDENTIAL DISPOSITION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 February 6, 2008*
Decided February 8, 2008
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 07-1503
SHAVAUGHN WILSON-EL, Appeal from the United States District
Petitioner-Appellant, Court for the Southern District of
Indiana, Terre Haute Division
v.
No. 2:05-cv-256-LJM-WTL
ALAN FINNAN,
Respondent-Appellee. Larry J. McKinney,
Judge.
ORDER
Shavaughn Wilson-El is an Indiana inmate who was found guilty in a
disciplinary proceeding of being a “habitual conduct rule violator.” As a result of
this determination, he lost good-time credits, was subjected to disciplinary
segregation, and received a written reprimand. Wilson-El sought a writ of habeas
corpus in the district court, contending that the proceeding was tainted by
constitutional error. See 28 U.S.C. § 2254(a). The district court denied his request,
*
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).
No. 07-1503 Page 2
concluding that Wilson-El had received all of the process that he was due and that
no irregularity occurred. Wilson-El appealed. In light of Walker v. O’Brien, 216
F.3d 626 (7th Cir. 2000), we permitted Wilson-El to proceed in this court without
first obtaining a certificate of appealability. We now affirm.
In June 2005 Screening Officer Chapman prepared a conduct report charging
Wilson-El with being a habitual rule violator. Chapman’s report cited seven
previous rule violations: five for refusing an order, one for presence in an
unauthorized area, and one for insolence. All had occurred within six months of the
date of Chapman’s report. Upon receiving notice of the charge and his rights,
Wilson-El waived his right to a 24-hour notice period prior to a hearing, entered a
plea of not guilty, and requested a lay advocate, but he declined to request any
witnesses or evidence. The hearing was then conducted on the same day.
The three-member conduct adjustment board (CAB) recorded Wilson-El’s
comments during the hearing. According to the CAB’s report, Wilson-El said:
“Some of those write ups are from when I just got out of the hole. I was not
intending to get these write ups. Some of these are from being late from chow but I
have a bad knee.” The report also indicated that Wilson-El stated that he did not
need a lay advocate present.
The CAB found Wilson-El guilty, relying on the conduct report and Wilson-
El’s own statement. The CAB recommended a deprivation of 120 days’ earned good
time credit, one year in disciplinary segregation, a written reprimand, and an
imposition of a previously suspended sanction of six months in disciplinary
segregation.
Wilson-El then appealed to the Facility Head, arguing that he did not receive
an impartial hearing. Wilson-El contended that the CAB members were biased
against him because two of them, R. Loudermilk and K. Hunter, had served on
previous CABs that had adjudicated his guilt and because he had previously filed
prison grievances or civil lawsuits against the CAB members. Wilson-El also
argued that the CAB had deprived him of his right to have a lay advocate present at
his hearing and had fabricated his statement that he did not wish to have such an
advocate. Finally, Wilson-El contended that the sanctions imposed were excessive
given the nature of the underlying charges against him.
The Facility Head denied Wilson-El’s appeal, concluding that the conduct
report was clear and supported the charge. The Facility Head also determined that
the fact that two CAB members had sat on other boards did not make them
biased—as long as they did not write the reports or witness the actual event they
could participate on the board. The Facility Head did not believe that the CAB
members lied about Wilson-El’s refusal of a lay advocate. Finally, the Facility Head
No. 07-1503 Page 3
concluded that the sanctions were not excessive because they were within the
guidelines of Indiana’s Adult Disciplinary Procedures (ADP).
Wilson-El appealed to the Final Reviewing Authority (FRA), presenting the
same issues he brought to the Facility Head. The FRA similarly determined that
there was no evidence of a procedural error or a violation of due process. However,
the FRA dismissed one year of disciplinary segregation because the sanctions were
“not consistent with previous Conduct Code (A) Habitual decisions.”
Wilson-El filed a petition for relief in the district court, arguing that he
received an unfair hearing because the CAB was biased against him, he was denied
a lay advocate, and he received an excessive sanction. He also contended that in
five of the cases supporting his habitual rule violator conviction he was erroneously
found guilty. The district court denied Wilson-El’s petition. First, the court
concluded that Wilson-El received all the process to which he was entitled. Second,
the court concluded that there was no arbitrary action or constitutional infirmity in
any aspect of the charge, disciplinary proceeding, or sanctions.
On appeal Wilson-El presses the same arguments as he did in the district
court. Our review of the district court’s denial of habeas corpus relief is de novo.
Scruggs v. Jordan, 485 F.3d 934, 938 (7th Cir. 2007). Prisoners in Indiana custody
may not be deprived of good-time credits without due process. Cochran v. Buss, 381
F.3d 637, 639 (7th Cir. 2004). The due process requirement is satisfied with the
issuance of advance written notice of the charges, a limited opportunity to present
evidence to an impartial decision maker, a written statement articulating the
reasons for the disciplinary action and the evidence justifying it, and “some
evidence in the record” to support the finding of guilt. See Superintend., Mass.
Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985); Wolff v. McDonnell, 418 U.S. 539, 564,
566, 570-71 (1974); Piggie v. Cotton, 344 F.3d 674, 677 (7th Cir. 2003); Webb v.
Anderson, 224 F.3d 649, 652 (7th Cir. 2000).
Wilson-El’s arguments do not convince us that there was any due process
violation or other defect in the proceedings against him. The fact that CAB
members had previously adjudicated cases against him, or had been the subject of
his complaints, does not constitute proof of bias. We have previously stated that
prisons need not require staff members who have been sued by an inmate to
disqualify themselves from a disciplinary action concerning that inmate; to do so
would not only heavily tax the working capacity of the prison staff, it would provide
an incentive for inmates to file lawsuits against prison officials. See Piggie, 342
F.3d at 667; Redding v. Fairman, 717 F.2d 1105, 1113 (7th Cir. 1983). In this case
the prison followed procedures outlined in the ADP: the CAB members that Wilson-
El challenges did not observe the conduct at issue or write reports documenting it.
See Redding, 717 F.2d at 1113.
No. 07-1503 Page 4
Similarly, Wilson-El presents no reason, other than his allegation of bias, to
doubt the veracity of the CAB’s report, which noted that Wilson-El told the CAB
members that he had no need for a lay advocate. In any event, due process does not
require that prisons appoint a lay advocate for a disciplinary hearing unless “an
illiterate inmate is involved . . . or where the complexity of the issue makes it
unlikely that the inmate will be able to collect and present the evidence necessary
for an adequate comprehension of the case.” Wolff, 418 U.S. at 570; see also Miller
v. Duckworth, 963 F.2d 1002, 1004 (7th Cir. 1992). Wilson-El does not contend that
either exception applied to him.
We also see no constitutional errors regarding Wilson-El’s sanctions because
they were not excessive. The FRA already responded to this argument by
rescinding one year of disciplinary segregation. Wilson-El’s resulting sentence was
then considerably less than the maximum sanction authorized by the ADP for this
type of offense. And the Eighth Amendment forbids only “extreme” punishment
that is “grossly disproportionate” to the crime, Koo v. McBride, 124 F.3d 869, 875
(7th Cir. 1997) (citation and internal quotation marks omitted); see also Leslie v.
Doyle, 125 F.3d 1132, 1134-35 (7th Cir. 1997), and that is not the case here.
Next Wilson-El contends that the evidence was insufficient to convict him of
being a habitual rule violator because the reports in the underlying charges were
false and retaliatory. But Wilson-El’s sufficiency-of-the-evidence argument is
procedurally defaulted because he did not present it in his appeal to the Facility
Head. A petitioner is generally required to exhaust all of his available
administrative remedies before seeking a writ of habeas corpus in federal court. 28
U.S.C. § 2254(b)(1)(A); Picard v. Connor, 404 U.S. 270, 275 (1971); Moffat v. Broyles,
288 F.3d 978, 981-82 (7th Cir. 2002). If the petitioner fails to do so and the
opportunity to raise that claim in state administrative proceedings has lapsed, the
petitioner has procedurally defaulted his claim, and a federal court is precluded
from reviewing the merits of his habeas petition. See Moffat, 288 F.3d at 982;
Markham v. Clark, 978 F.2d 993, 995-96 (7th Cir. 1992).
In any event, Wilson-El’s conviction is adequately supported by the evidence
of seven prior offenses, which are well documented in the record. See Webb, 224
F.3d at 652 (“Even meager proof will suffice, so long as the record is not so devoid of
evidence that the findings of the disciplinary board were without support or
otherwise arbitrary.” (internal citation and quotation marks omitted)). We do not
weigh the evidence supporting the conviction. Id. Accordingly, we will not disturb
Wilson-El’s habitual rule violator conviction.
AFFIRMED.