Moffat v. Broyles

• Decision Date: 30 April 2002
• Docket Number: No. 00-4032.,00-4032.
• Citation: 288 F.3d 978
• Parties: Shelby MOFFAT, Petitioner-Appellant, v. Edward BROYLES, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

288 F.3d 978

Shelby MOFFAT, Petitioner-Appellant, v. Edward BROYLES, Respondent-Appellee.

No. 00-4032.

United States Court of Appeals, Seventh Circuit.

Argued April 19, 2002.

Decided April 30, 2002.

Rehearing and Rehearing En Banc Denied May 28, 2002.^*

Charles N.W. Keckler (argued), Mayer, Brown, Rowe & Maw, Chicago, IL, for Petitioner-Appellant.

David L. Steiner (argued), Office of the Atty. Gen., Indianapolis, IN, for Respondent-Appellee.

Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

Shelby Moffat lost 180 days of good-time credits after a disciplinary committee concluded that he had attempted to smuggle two pieces of jewelry into the prison. Immediately after seeing a visitor in an interview room, Moffat asked to use the bathroom; suspicions raised, the officers sent him to the shakedown room instead and caught him attempting to discard a paper towel containing a gold chain and a silver chain. Moffat's defense was that he owned the jewelry and had worn it into the visiting room; he offered as evidence receipts for some authorized jewelry purchases. He did not explain, however, why — if he owned these pieces legitimately and had been wearing them at the start of the visit — he put the chains in a paper towel and tried to conceal them from the guards. Prison authorities drew an adverse inference and found him guilty of attempted trafficking. Moffat contends in this proceeding under 28 U.S.C. § 2254 that the state violated his constitutional rights by acting without sufficient evidence and by making a decision without a concrete statement of reasons. The district court denied his petition.

Neither the district judge nor any judge of this court has issued a certificate of appealability, which raises the question how we can entertain this appeal given 28 U.S.C. § 2253(c)(1)(A), which provides: "Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from... the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court". This is a habeas corpus proceeding, and Moffat's imprisonment arises out of (= is authorized by) a state court's process (= his sentence). We held in Walker v. O'Brien, 216 F.3d 626, 638 (7th Cir.2000), that a certificate of appealability nonetheless is unnecessary because the prison's disciplinary apparatus is not a state court. That decision created a conflict by departing from the approach of the fifth and tenth circuits. Montez v. McKinna, 208 F.3d 862, 867 (10th Cir.2000); Stringer v. Williams, 161 F.3d 259, 262 (5th Cir.1998); Hallmark v. Johnson, 118 F.3d 1073, 1076-77 (5th Cir.1997).

Since Walker's announcement, three more circuits have addressed this issue — and all three have rejected Walker's holding, making the score five to one against our position. See Coady v. Vaughn, 251 F.3d 480, 486 (3d Cir.2001); Greene v. Tennessee Department of Corrections, 265 F.3d 369, 371-72 (6th Cir.2001); Madley v. United States Parole Commission, 278 F.3d 1306, 1309-10 (D.C.Cir.2002). Coady appears to have been unaware of Walker, but Greene and Madley dealt with it directly, disapproved both its reasoning and its outcome, and held that "the detention complained of arises out of process issued by a State court" for purposes of § 2253(c)(1) whenever the appellant's imprisonment has been judicially authorized. Not a single judge in any other circuit has adopted the view taken in Walker that § 2253(c)(1) is inapplicable to collateral attacks on administrative decisions that affect how much of a judicially imposed sentence shall be served. As these opinions observe, Walker reaches a counter-textual conclusion: § 2553(c)(1) asks whether the detention arises out of a state court's process, while Walker asks whether the challenged decision was made by a state court. In order to hold that a collateral attack was possible under § 2254 (which it did), the panel in Walker had to hold that the detention arose out of a state court's decision, but the panel then denied that a certificate of appealability was necessary. This internal contradiction, coupled with Walker's unfavorable reception, poses the question whether this circuit should continue to walk a lonely path. See United States v. Carlos-Colmenares, 253 F.3d 276 (7th Cir.2001).

Still, it is never necessary to revisit a subject sua sponte — even if it deals, as Walker does, with appellate jurisdiction — unless an intervening decision of the Supreme Court has overthrown circuit precedent. Walker did not reach its conclusion in passing or as a result of inadequate consideration; it resolved the issue directly and over a vigorous dissent. Other circuits have not turned up new arguments but instead have aligned themselves with what was a dissenting view in this circuit. It may be that developments elsewhere will affect how judges here see the question, but because Indiana has not asked us to take a fresh look at the question, Moffat's lawyer has not briefed the subject either. We shall proceed to decide the case as it was presented, but with the caveat that this court is not indifferent to the reception its legal conclusions receive in other circuits and may find it necessary to decide eventually whether to eliminate or perpetuate this conflict.

One of Moffat's arguments is that the evidence does not prove that he attempted to smuggle jewelry into the prison. He came out of the interview with three chains (two discarded in the paper towel and a third found on a window ledge) but could have been wearing all three going in. Guards saw him wearing one; maybe they missed the other two, Moffat insists. He has receipts for some chains and insists that the prison had to establish that these were not the chains that he possessed following the interview. That would be impossible; the receipts are not detailed enough to exclude the possibility that the chains in the paper towel had been purchased earlier. Thus he was entitled to vindication, Moffat concludes. But a prison need not show culpability beyond a reasonable doubt or credit exculpatory evidence. It is enough, as far as the federal Constitution is concerned, if "some evidence" supports the disciplinary board's conclusion. See Superintendent of Walpole v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985). Guards saw one chain going in and found three coming out; eyesight and memory can play tricks, but they are reliable enough to support criminal convictions and thus are reliable enough to support administrative decisions too. That Moffat tried to ditch two chains implies that he had something to hide, which strengthens the inference that they had been acquired improperly from his visitor.

Moffat's other argument is that the board violated the due process clause by using a boilerplate reason for its decision. According to Wolff v. McDonnell, 418 U.S. 539, 563, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), a prison disciplinary panel must provide "a written statement ... as to the evidence relied upon and the reasons for the disciplinary action taken". But all this board said was: "Based on the preponderance of the evidence, the CAB finds the offender guilty." That is hard to describe as a reason; it is more a restatement of the issue that the board had to resolve. See Redding v. Fairman, 717 F.2d 1105 (7th Cir.1983) (holding a similarly generic "reason" inadequate). It is little different from a jury's verdict "We find the defendant guilty." Still, we have held that a curt explanation may suffice when it was evident to all involved that the only question was one of...