Eric Grandberry v. Brian Smith , 735 F.3d 616 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2081
ERIC GRANDBERRY,
Petitioner-Appellant,
v.
STEVE KEEVER,*
Respondent-Appellee.
Appeal from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. 2:11-cv-00186-WTL-WGH — William T. Lawrence, Judge.
ARGUED APRIL 23, 2013 — DECIDED NOVEMBER 5, 2013
Before RIPPLE and HAMILTON, Circuit Judges, and
STADTMUELLER, District Judge.**
*
Pursuant to Rule 43 of the Federal Rules of Appellate Procedure, we have
substituted Steve Keever for Stanley Knight as the respondent-appelle.
**
Hon. J. P. Stadtmueller of the Eastern District of Wisconsin, sitting by
designation.
2 No. 12-2081
HAMILTON, Circuit Judge. Eric Grandberry petitioned for
habeas corpus relief under 28 U.S.C. §2254. His petition did not
seek relief from his criminal conviction, but from a disciplinary
sanction that a state prison had imposed against him. The
sanction was a loss of “good-time” credits that will extend by
30 days the time he spends in custody. He has alleged that the
Indiana prison’s disciplinary proceedings failed to provide him
with the minimal due process protections required under the
Fourteenth Amendment. The district court exercised jurisdic-
tion under 28 U.S.C. §2254(a) and denied Grandberry’s petition
on the merits. Grandberry has appealed.
We address here a preliminary question of appellate
procedure for appeals from denial of habeas corpus relief from
state prison disciplinary actions. Under the governing statute,
appeals from denials of habeas relief under §2254 require a
certificate of appealability if “the detention complained of
arises out of process issued by a State court.” 28 U.S.C.
§2253(c)(1)(A). In Walker v. O’Brien, 216 F.3d 626, 638 (7th Cir.
2000), and many later cases, we have held that when a habeas
petitioner challenges a prison disciplinary action rather than
his or her underlying conviction, the certificate of appealability
requirement of §2253(c)(1)(A) does not apply. In accord with
those precedents, Grandberry filed a notice of appeal without
first obtaining a certificate of appealability. We have jurisdic-
tion over his appeal under 28 U.S.C. §2253(a).
We requested briefing on the question whether Walker v.
O’Brien should be overruled on whether a certificate of
appealability is required in habeas appeals by state prisoners
challenging decisions of prison authorities. Our request was
prompted by a 2010 en banc decision by the Ninth Circuit, in
No. 12-2081 3
which that court reversed its prior precedent and held that
certificates of appealability are required before state prisoners
may challenge prison disciplinary actions. See Hayward v.
Marshall, 603 F.3d 546, 554 (9th Cir. 2010) (en banc) (overruling
White v. Lambert, 370 F.3d 1002, 1013 (9th Cir. 2004)), overruled
on other grounds by Swarthout v. Cooke, 131 S. Ct. 859 (2011).1
Because this issue could involve overturning circuit
precedent, the question before us is whether there is a “com-
pelling reason” to overrule Walker, such as a “statutory
overruling” or a showing that the decision has “been overruled
or undermined by the decisions of a higher court.” McClain v.
Retail Food Employers Joint Pension Plan, 413 F.3d 582, 586 (7th
Cir. 2005) (internal citations and quotations omitted). The
Ninth Circuit’s decision in Hayward left this circuit as the only
one thus far that reads the statutory phrase “the detention
complained of arises out of process issued by a State court” as
not applying to prisoners challenging prison disciplinary
decisions that prolong their custody. In such circumstances, a
fresh look may well be in order. See, e.g., United States v.
Corner, 598 F.3d 411, 414 (7th Cir. 2010) (en banc) (overruling
circuit precedent to eliminate circuit split on whether district
judge may disagree with career offender provision of Sentenc-
ing Guidelines where government confessed error and urged
overruling of precedent). We have given the question a fresh
look, but we do not find persuasive reasons to change our
approach. We believe Walker remains sound on this point, and
we decline to overturn it.
1
The court is grateful to counsel for both parties for their able assistance in
briefing this question upon our request.
4 No. 12-2081
Section 2253(c)(1)(A) 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.” (Emphasis added.) Based on
its reading of the plain language of this statute, the panel in
Walker reasoned that certificates of appealability are not
required in habeas cases challenging state prison disciplinary
proceedings because in those cases, “the detention complained
of” is the additional amount of time the prisoner must stay in
prison as a result of the disciplinary proceedings. This deten-
tion does not “arise out of process issued by a State court.” It
is imposed by the prison disciplinary board. Walker, 216 F.3d
at 637 (“In light of the statutory language, we do not see how
we can construe the words ‘process issued by a State court’ to
mean ‘process not issued by a State court, but instead the
outcome of an internal prison disciplinary proceeding.’”). In
fact, in prison disciplinary cases arising in Indiana as this case
does, the state courts have nothing to do with the discipline
because no judicial review is available in state courts. See
Blanck v. Indiana Dep’t of Correction, 829 N.E.2d 505, 507 (Ind.
2005).
If Congress had intended a different result, it could have
used different language—as it did in other habeas provisions.
Compare 28 U.S.C. §2253(c)(1)(A) (“in which the detention
complained of arises out of process issued by a State court”),
with 28 U.S.C. §2254(a) (“in custody pursuant to the judgment
of a State court”). One of the most reliable guides to interpret-
ing statutes is to assume that Congress meant what it said. E.g.,
Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992).
No. 12-2081 5
The other circuits that have considered this issue disagree
with our interpretation of §2253(c)(1)(A). See Hayward, 603 F.3d
at 553 (reasoning that upon denial of parole, the “detention
complained of” pursuant to 28 U.S.C. §2253(c)(1)(A) is the state
court conviction that put the prisoner in prison, “not the
administrative decision not to let him out”); see also
Medberry v. Crosby, 351 F.3d 1049, 1063 (11th Cir. 2003);
Madley v. United States Parole Comm’n, 278 F.3d 1306, 1310 (D.C.
Cir. 2002); Greene v. Tennessee Dep’t of Corr., 265 F.3d 369,
371–72 (6th Cir. 2001); Coady v. Vaughn, 251 F.3d 480, 486 (3d
Cir. 2001); Montez v. McKinna, 208 F.3d 862, 868–69 (10th Cir.
2000). Prior to the Ninth Circuit’s decision in Hayward, this
circuit and the Ninth were aligned on this question. See White,
370 F.3d at 1010. The fact that the Ninth Circuit has now
switched sides does not persuade us to do the same, however.
We are lonelier than before, but we have previously rejected
the existence of contrary rulings from other circuits as a reason
to overrule Walker. Moffat v. Broyles, 288 F.3d 978, 980 (7th Cir.
2002); see also Anderson v. Benik, 471 F.3d 811, 814 (7th Cir.
2006); Piggie v. Cotton, 344 F.3d 674, 677 (7th Cir. 2003).
Our reasoning has not changed, the reasoning of our
colleagues in other circuits has not changed, and our respectful
disagreement with our colleagues on this issue has not
changed. We could go on at considerable length rehearsing the
arguments for and against the Walker holding. The panel
opinion in Walker and the dissent from denial of rehearing en
banc have already done so ably, as have the Ninth Circuit
majority and dissent in Hayward, among a number of other
published opinions. We would add little to the debate by
further repetition. We hold that Walker v. O’Brien is still good
6 No. 12-2081
law in this circuit. In this matter, because petitioner
Grandberry seeks to challenge a prison disciplinary decision
and not his underlying conviction, he was not required to
obtain a certificate of appealability under 28 U.S.C.
§2253(c)(1)(A). Walker, 216 F.3d at 637–39.
Petitioner Grandberry’s appeal will proceed without a
certificate of appealability. By separate order, we will establish
a new schedule for briefing on the merits of his appeal.
SO ORDERED.