266 F.3d 759 (7th Cir. 2001), 00-2425, White v IN Parole Bd.

Docket Nº:00-2425
Citation:266 F.3d 759
Party Name:Phil White, Petitioner-Appellant, v. Indiana Parole Board, Respondent-Appellee.
Case Date:September 26, 2001
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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266 F.3d 759 (7th Cir. 2001)

Phil White, Petitioner-Appellant,


Indiana Parole Board, Respondent-Appellee.

No. 00-2425

In the United States Court of Appeals, For the Seventh Circuit

September 26, 2001

Argued June 7, 2001

Rehearing and Rehearing En Banc

Denied Oct. 23,[2001*]

Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:99cv0633S--Allen Sharp, Judge.

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Before Coffey, Easterbrook, and Rovner, Circuit Judges.

Easterbrook, Circuit Judge.

While confined in the Marion County Jail, Phil White was accused of drug trafficking with the aid of Yvonne Davis, a prison employee, and Shaquilla Harrison, Davis's daughter (and the mother of White's child). The prison's Conduct Adjustment Board stripped White of 120 days' good- time credit; it also reduced his credit- earning classification. White took two administrative appeals, first to the warden and then to a tribunal maintained by the Indiana Department of Corrections. Both the warden and the Department sustained the Board's decision, although the Department increased White's credit- earning rate. Indiana does not provide judicial review of such actions, so White's next stop was federal court, where he contends in this action under 28 U.S.C. sec.2254 that the Board did not afford him due process of law. See Edwards v. Balisok, 520 U.S. 641 (1997). White complains that the officer who investigated and filed the trafficking charge conferred with the Board's members after the close of evidence, and that he did not receive a copy of a videotaped interview Davis had with investigating officers. The district court denied the petition.

1. The day after oral argument of his appeal, White was released on parole. Indiana contends in supplemental memoranda filed at our request that White's parole makes this proceeding moot, on the theory that only the terminal date of his sentence--a date unaffected by good-time credits-- now concerns him. The Board's decision delayed his parole but does not affect how long parole continues after release. Indiana law provides that parole never lasts more than two years, or the end of the sentence, whichever comes first. I.C. sec.35-50-6-1. White was paroled on June 8, 2001, so his supervision will end on June 7, 2003, three days before his sentence expires. More good-time credits would not advance the expiration of his sentence. Majors v. Broglin, 531 N.E.2d 189 (Ind. 1988). Because neither the two- year period nor the end of the sentence depends on the disciplinary action, the state contends that the Board's decision has no current consequences and the case must be moot. See Spencer v. Kemna, 523 U.S. 1 (1998); Murphy v. Hunt, 455 U.S. 478 (1982).

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The difficulty with this position is that it disregards the link between good- time credits and release on parole. The Board's decision postponed the start of White's parole by approximately six months. Because parole in Indiana lasts a maximum of two years, the Board's decision also postpones the end of White's supervision: had he been released, say, on December 8, 2000, his parole would be over by December 7, 2002, rather than June 7, 2003. This means that the federal court has the power to affect the duration of White's custody (for parole is a form of custody): If the disciplinary hearing is deemed defective, the court may order Indiana to terminate White's parole when it would have expired, but for the Board's decision on the drug-trafficking charge. The proceeding is not moot.

2. Indiana offers a second procedural contention: that unless the Board's procedures contravene a decision of the Supreme Court, or apply that Court's decisions unreasonably, collateral relief is precluded. The state relies on 28 U.S.C. sec.2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

Both the language of the aedpa and Williams v. Taylor, 529 U.S. 362, 412 (2000), show that, when this provision applies, decisions of courts other than the Supreme Court must be disregarded. Only that Court's own decisions, and not glosses applied by other tribunals, may be enforced on collateral review. Cf. Tyler v. Cain, No. 00-5961 (U.S. June 28, 2001). This could be a substantial advantage for Indiana, because Wolff v. McDonnell, 418 U.S. 539 (1974), the Supreme Court's principal decision articulating procedural requirements for prison disciplinary hearings, does not directly support either branch of White's argument.

But does sec.2254(d) apply? White is "a person in custody pursuant to the judgment of a State court", but how was his "claim . . . adjudicated on the merits in State court proceedings"? The Conduct Adjustment Board is not a court, and Indiana did not afford judicial review of such a Board's decision. How then could sec.2254(d) be relevant? According to the state, sec.2254(d) uses the word "court" in different ways. The first reference ("judgment of a State court") uses the word in its normal sense, as an institution with legally trained judges following rules of evidence and adversarial procedure with lawyers available to both sides. (Only such an institution may enter a lawful judgment committing an accused to prison.) The second time the word appears ("adjudicated on the merits in State court proceedings"), according to the state, it takes a special sense equivalent to "any adjudicatory body." Agencies can and do adjudicate even though they follow inquisitorial procedures and lack lawyers; the Board is

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an agency; hence, Indiana insists, it is a "court" for purposes of sec.2254(d).

This is not a natural reading of the word--not only because it is unusual to treat agencies as courts but also because it requires the word "court" to have two meanings in one sentence. Still, the state has some support in this circuit's decisions. Markham v. Clark, 978 F.2d 993 (7th Cir. 1992), reads the word "court" in sec.2254(b)(1)(A) to include all adjudicatory bodies. (Markham predates the aedpa, but the language it interpreted has been carried forward with minimal change.) Section 2254(b)(1)(A) requires state prisoners to exhaust "the remedies available in the courts of the State" before seeking collateral relief in federal court. Markham holds that an appellate apparatus within a prison system is a "court" for this purpose and thus that state prisoners deprived of good-time credits must use all available administrative remedies. That is why White had to appeal to the warden and then the Indiana Department of Corrections before seeking federal review. Section 2254(c) supports this usage of the word "court" by providing that "[a]n applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented." (Emphasis added.)

One could read sec.2254(c) as limited to any judicial procedure (so that state prisoners must resort to collateral attacks, mandamus, and other remedies, as well as direct appeals), but Markham concluded that it means any procedure at all, judicial or not. Nothing like sec.2254(c) enlarges the definition of "court" for purposes of sec.2254(d), and the latter section serves a function-- enlarging the extent to which state judgments receive full faith and credit, despite provision for collateral attacks- -that is more closely linked to the traditional understanding of a court.

Markham has a second theme: that "how states carve up adjudicative functions between courts and agencies is in general and in this particular no business of the federal courts, for the Constitution does not prescribe any particular allocation or separation of powers among the states. . . . If one state wants to use an administrative body where another state would use a conventional 'court,' its choice is a matter of indifference from the standpoint of the principles of federalism and comity". 978 F.3d at 995. This is undoubtedly true for many subjects; states may (and do) allocate some apparently legislative powers to judges, and adjudicatory powers to non- tenured officials (whether called courts or agencies). But a few federal laws recognize differences among branches of state government. One of these is the Full Faith and Credit Clause, Art. IV sec.1, which provides: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." (Emphasis added.) Section 2254(d) specifies the extent to which states' decisions must be respected in collateral attacks and thus like 28 U.S.C. sec.1738 exercises the power granted by the second sentence of the Full Faith and Credit Clause. We know from University of Tennessee v. Elliott, 478 U.S. 788 (1986), that for purposes of sec.1738 a state agency is not a judicial body, and that a federal tribunal therefore may reexamine de novo issues determined by a state agency but not reviewed by that state's judiciary. See also Astoria Federal Savings & Loan Ass'n v.

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