Wagner v. Williford, 86-1049

• Decision Date: 30 January 1987
• Docket Number: No. 86-1049,86-1049
• Citation: 804 F.2d 1012
• Parties: James Edward WAGNER, Petitioner-Appellant, v. Jerry T. WILLIFORD, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1012

804 F.2d 1012

James Edward WAGNER, Petitioner-Appellant, v. Jerry T. WILLIFORD, Warden, Respondent-Appellee.

No. 86-1049.

United States Court of Appeals Seventh Circuit.

Argued June 3, 1986.

Decided Nov. 4, 1986.

Rehearing and Rehearing En Banc Denied Jan. 30, 1987.

Howard B. Eisenberg, Legal Clinic, S. Ill. University, Carbondale, Ill., for petitioner-appellant.

Laura J. Jones, Asst. U.S. Atty., Frederick J. Hess, U.S. Atty., East St. Louis, Ill., for respondent-appellee.

Before CUMMINGS, WOOD and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

In recent years this court has heard a series of cases, arising from the maximum security federal penitentiary at Marion, Illinois, that have required us to consider the scope of due process protections when prison disciplinary proceedings involve confidential informants. See, e.g., McCollum v. Miller, 695 F.2d 1044 (7th Cir.1982) ("McCollum I "); Jackson v. Carlson, 707 F.2d 943 (7th Cir.), cert. denied sub nom. Yeager v. Wilkinson, 464 U.S. 861, 104 S.Ct. 189, 78 L.Ed.2d 167 (1983); Dawson v. Smith, 719 F.2d 896 (7th Cir.1983), cert. denied, 466 U.S. 929, 104 S.Ct. 1714, 80 L.Ed.2d 186 (1984); Mendoza v. Miller, 779 F.2d 1287 (7th Cir.1985), cert. denied, --- U.S. ---, 106 S.Ct. 2251, 90 L.Ed.2d 697 (1986); McCollum v. Williford, 793 F.2d 903 (7th Cir.1986) ("McCollum II "); Sanchez v. Miller, 792 F.2d 694 (7th Cir.1986). These cases clarify and amplify the minimum due process requirements outlined by the Supreme Court in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) and Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Petitioner in this case is an inmate at Marion who lost his good time credits when the prison disciplinary committee, relying on confidential informants, found him guilty of killing another inmate. He challenges (1) a finding of informant reliability that did not reach the record until after the adjudication, and (2) the district court's failure to grant his counsel access to the confidential information relied on by the prison authorities, even though his attorney was specifically found to be trustworthy. For reasons explained below, we affirm in part and remand in part for proceedings consistent with this opinion.

I.

On January 12, 1981, Thomas Sargis, an inmate of the United States Penitentiary in Lompoc, California, was found stabbed to death in his cell. Three days later petitioner James E. Wagner, also an inmate at the Lompoc penitentiary, received an incident report, see 28 C.F.R. Sec. 541.13, Table 3 (Code 100--Killing), charging him with the killing. The prison Institutional Discipline Committee (IDC) held a hearing on February 4 or 5, 1981, ¹ at which Wagner was represented by a staff representative. Wagner presented five fellow inmates as witnesses on his behalf and submitted a statement.

The IDC found Wagner guilty of the killing. According to its hearing report, this conclusion rested on three sources: the incident report, the ensuing investigation, and confidential evidence received from three informants that was summarized in a written report from the Federal Bureau of Investigation. ² As a result of this finding of guilt, the IDC revoked Wagner's 176 accumulated "good time" days, placed him in disciplinary segregation for 60 days, and recommended him for placement in the Marion Control Unit. Wagner appealed this finding of guilt through administrative channels.

On May 21, 1981, the IDC chairperson amended the IDC hearing report as follows:

... the names of the informants referred to in Section 5 of Institution Discipline Committee hearing held on James Wagner, ... for killing another individual was [sic] known to the committee during the I.D.C. hearing. The Institution Disciplinary Committee determined that the statements given by the three confidential sources was [sic] reliable and valid based on their statements which was [sic] collaborated [sic] by substantial physical evident [sic].

IDC Hearing Amendment of May 21, 1981 (reprinted in Respondent's brief at A12).

Wagner was subsequently transferred from Lompoc to the United States Penitentiary at Marion, Illinois, where he was placed in that institution's control unit. On February 3, 1983, having exhausted his administrative remedies, Wagner filed a habeas corpus petition. The petition charged that the evidence relied on by the IDC was insufficient to sustain its action; that the use of confidential information was a violation of due process; and that the IDC was improperly allowed to amend its determination.

The magistrate examined the FBI report in camera, and petitioner's court-assigned counsel moved for a protective order that would allow him to review the report without revealing the information to petitioner. The court denied the motion, stating that the in camera materials merely detailed the information already provided to petitioner's counsel in the IDC report. The magistrate also noted that although he was confident that petitioner's counsel would have in fact kept the information in the strictest confidence, he "could not reach the same conclusion with regard to all attorneys who might appear before [him]." Wagner v. Williford, No. CV 83-4032 (S.D.Ill. Jan. 4, 1985) (order concerning motion to review in camera materials). On December 4, 1985, the court granted the government's motion for summary judgment.

On appeal Wagner raises two issues. First, Wagner argues that he was denied due process of law when the IDC based its conclusion on evidence from confidential informants, because no determination of the informants' reliability reached the record until after the adjudication. Second, Wagner argues that he was denied due process of law and the effective representation of counsel when the district court denied his attorney access to the confidential report.

II.

A.

A threshold issue in this case is the applicable law. In its brief, respondent stated that "the 1981 IDC hearing should not be subjected to the same scrutiny that a hearing is now subjected to." Respondent noted that the cases on which petitioner relied in his brief (most notably McCollum I, 695 F.2d 1044 (7th Cir.1982), in which we explicitly required that some showing of reliability be made when disciplinary proceedings involve confidential informants) were decided after Wagner's hearing. However, respondent did not elaborate on this argument, nor did petitioner respond to it in his reply brief.

Seven days after we heard oral argument in this case, this court decided Sanchez v. Miller, 792 F.2d 694 (7th Cir.1986). In Sanchez we held, relying on Wolff v. McDonnell, supra, that the constitutionality of an IDC hearing must be considered under the law in existence at the date of the hearing. 792 F.2d at 702. We suggested in a footnote that "one must also look to the law of the place where the hearing was conducted." 792 F.2d at 703, n. 14. Therefore, under the rule of Sanchez the controlling law in this case is that of the Ninth Circuit as of February 5, 1981. However, we now modify the non-retroactivity rule announced in Sanchez and hold that McCollum I and its progeny continue to apply to cases filed or pending in the courts of this circuit on June 9, 1986, the date of decision in Sanchez. Cases filed after that date are subject to the rule announced in Sanchez.

Before the Sanchez decision this court had, without discussing the issue, consistently applied McCollum I (which was decided on December 20, 1982) retroactively. Sanchez, 792 F.2d at 702. See, e.g., Mendoza v. Miller, 779 F.2d at 1290 (IDC hearing held on April 3, 1981); Dawson v. Smith, 719 F.2d at 897 (IDC hearing held on October 25, 1977); and Jackson v. Carlson, 707 F.2d at 946 (federal appeals not filed until 1981 and 1982). Sanchez thus effectively reversed past precedent. Moreover, it is clear that here both parties relied on the prior line of cases. Respondent's non-retroactivity argument was no more than an assertion, and neither party addressed the issue of the state of the law in 1981 in its brief. It would be inequitable not to respect this reliance. Cf. Solem v. Stumes, 465 U.S. 638, 646 n. 6, 104 S.Ct. 1338, 1343 n. 6, 79 L.Ed.2d 579 (1984) ("[A]uthorities are generally entitled to rely on existing caselaw, whatever its disrepute.").

The application of Sanchez to cases already pending in the courts at the time of that decision is troublesome in terms of judicial efficiency as well as fairness to litigants. In situations such as the case at bar this court would be faced with two choices: either order the parties to submit supplemental briefs--creating further delay--or decide the case "in a vacuum," without the benefit of briefs or argument by the parties. Cf. Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538 (7th Cir.1986) (in civil case, procedural rule made retroactive where issue adequately briefed on appeal and court did not have to decide case in vacuum).

Finally, this exception will not undermine the purpose of the non-retroactivity rule announced in Sanchez, which was to avoid burdening the courts with a flood of cases. See Sanchez, 792 F.2d at 703 (quoting Wolff, 418 U.S. at 574, 94 S.Ct. at 2983).

We therefore create a limited exception to the non-retroactivity rule announced in Sanchez for cases pending in the courts of this circuit as of June 9, 1986. Compare Phelps v. Duckworth, 757 F.2d 811 (7th Cir.1985) (rule in Doyle v. Ohio held applicable to cases on direct appeal when rule established).

B.

We next address the issue of the after-the-fact finding of reliability.

In Mendoza v. Miller, supra, this court listed four possible indications that confidential information introduced in an IDC hearing is reliable:

(1) the oath of the investigating officer as to the truth of his report containing confidential information and his appearance before the disciplinary committee; (2) corroborating testimony; (3) a statement on the record by the chairman of the...