Mcpherson v. Mcbride, 97-1394

• Citation: 188 F.3d 784
• Decision Date: 13 August 1999
• Docket Number: No. 97-1394,97-1394
• Parties: (7th Cir. 1999) MONTE MCPHERSON, Petitioner-Appellee, v. DANIEL R. MCBRIDE, Respondent-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 784

188 F.3d 784 (7th Cir. 1999)

MONTE MCPHERSON, Petitioner-Appellee, v. DANIEL R. MCBRIDE, Respondent-Appellant.

No. 97-1394

United States Court of Appeals, Seventh Circuit

Argued January 4, 1999

Decided August 13, 1999

Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 96 C 224--Allen Sharp, Judge.

Before FLAUM, ROVNER, and DIANE P. WOOD, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Monte McPherson was accused of violating a Westville Correctional Center rule forbidding sexual acts between inmates. A prison disciplinary panel found him guilty of the charge, and revoked 90 days of earned good credit time. After unsuccessfully pursuing administrative relief, McPherson sought habeas relief in the district court pursuant to 28 U.S.C. sec. 2254. The district court granted that relief, and the Superintendent at Westville appeals that decision.

I.

Officer Fields of the Westville Correctional Center submitted a report to the Conduct Adjustment Board (CAB) of the prison, describing an incident Fields witnessed. Fields' one sentence report reads as follows: "I officer B. Fields observed offenders McPherson, Monte D.O.C. #943559 and offender Steele, Tommy D.O.C. #933004 kissing and rubbing on each others [buttocks] and holding each others [genitals] while the running of chow." McPherson was charged with engaging in sexual acts with another in violation of Adult Disciplinary Policy Procedures Code 216. On June 19, 1995, McPherson received a copy of the conduct report and a notice that a disciplinary hearing would be held on June 22, 1995. At that hearing, McPherson testified in his own defense, but did not call any witnesses. He testified that while on his way to a meal, he realized that he had forgotten his identification badge. He asked inmate Tommy Steele to escort him to his cell for protection purposes. As he and Steele began to walk away, Officers Fields and Moore appeared and ordered him to his cell. A few days later, he received the disciplinary citation authored by Fields. McPherson contended that he hugged Steele but did not engage in any sexual activity. Fields did not testify at the hearing, but the CAB considered his report. Based on that report, the CAB found McPherson guilty of the charge and revoked 90 days earned good time credit as the sanction.

McPherson appealed the decision to the warden, who affirmed the CAB. He then appealed to the Indiana Department of Corrections, this time submitting a written statement from Officer Moore. According to that statement, Moore and Fields arrived at the same time and Moore did not see any kissing or hugging. Instead, Moore recounted that Steele and McPherson were standing apart from each other. The Department of Corrections denied the appeal, which exhausted McPherson's state remedies because Indiana does not allow for court review of such decisions. Stone-Bey v. Barnes, 120 F.3d 718, 721 n.2 (7th Cir. 1997); Markham v. Clark, 978 F.2d 993, 994 (7th Cir. 1992).

McPherson then filed this habeas action. The district court acknowledged that the decision must be upheld as long as "some evidence" supported it. The court held, however, that the statement by Officer Moore directly undercut the reliability of Officer Fields' report. "Erring on the side of extreme caution," the court held that McPherson's due process rights had been violated. Accordingly, the court granted the habeas petition, and granted respondent leave to conduct a new hearing within 120 days, at which time McPherson would have the opportunity to call Officer Moore as a witness. The Superintendent of Westville Correctional Center appeals.

II.

Initially, we note that the Superintendent incorrectly asserts that the Antiterrorism and Effective Death Penalty Act (AEDPA) applies here and governs the standard of review. The AEDPA applies only to petitions filed after April 24, 1996. Lindh v. Murphy, 521 U.S. 320 (1997); Morse v. Hanks, 172 F.3d 983, 985 (7th Cir. 1999). The district court received McPherson's habeas petition and motion to proceed in forma pauperis (ifp) on March 27, 1996. On April 2, 1996, the district court directed McPherson to file a more definite statement in support of his ifp motion. McPherson complied with that request, and the court approved the motion and the habeas petition was filed on May 1, 1996. The habeas petition of an incarcerated pro se litigant is deemed filed when placed with the proper prison authorities. Jones v. Bertrand, 171 F.3d 499, 502 (7th Cir. 1999). Therefore, McPherson's petition was filed before April 24, 1996, and the AEDPA is inapplicable.

III.

We turn, then, to the proper standard of review for a due process challenge to a deprivation of good time credits, without considering the AEDPA. Indiana prison inmates have a protected liberty interest in earned good time credits. Ind. Code sec.sec. 35-6-3, 35-6-4 (1988); Meeks v. McBride, 81 F.3d 717, 719 (7th Cir. 1996). Where a loss of good time credits is possible, the Supreme Court has held that the inmate must receive: "(1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action." Superintendent. Mass. Correctional Institute v. Hill, 472 U.S. 445, 454 (1985). The Court further held that procedural due process requires that the decision of the prison disciplinary board must be supported by "some evidence." Id. at 454. McPherson does not argue that the hearing lacked the procedural protections, but asserts only that the decision is unsupported by "some evidence."

The "some evidence" standard is less exacting than the preponderance of the evidence standard, requiring only that the decision not be arbitrary or without support in the record. Id. at 457. In reviewing a decision for "some evidence," courts "are not required to conduct an examination of the entire record, independently assess witness credibility, or weigh the evidence, but only determine whether the prison disciplinary board's decision to revoke good time credits has some factual basis." Id. at 455-56. For its decision, the CAB relied on Fields' disciplinary report. That report alone provides "some evidence" for the CAB's decision. The brevity of the report, which McPherson finds important, is not fatal because the report describes the alleged infraction in sufficient detail. There is no question that the conduct described would violate the prison rule. Because the "some evidence" standard is met by Officer Fields' report, there is no basis for granting habeas relief unless McPherson can somehow invalidate that report.

McPherson attempts to avoid the effect of Fields' report by arguing that Moore's written statement undermines the report's reliability. Moore's statement was not before the CAB, and McPherson has not explained why that evidence was not presented at the hearing. McPherson's own testimony at the...