Guillen, Oscar v. Finnan, Alan , 219 F. App'x 579 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 20, 2007*
Decided March 22, 2007
Before
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-4597
OSCAR GUILLEN, Appeal from the United States District
Petitioner-Appellant, Court for the Southern District of
Indiana, Indianapolis Division
v. No. 1:05-CV-1097-LJM-WTL
ALAN FINNAN, Larry J. McKinney,
Respondent-Appellee.** Chief Judge.
ORDER
Indiana inmate Oscar Guillen challenges a prison disciplinary conviction
under 28 U.S.C. § 2254 on the grounds that the evidence was insufficient to sustain
his conviction, that he was thwarted from presenting evidence at his hearing on the
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
**
Alan Finnan, who became the superintendent of the Wabash Valley
Correctional Center after this appeal was filed, has been substituted for Craig A.
Hanks as the appellee. See Fed. R. App. P. 43(c)(2).
No. 05-4597 Page 2
charge, and that the charge was retaliatory. The district court denied Guillen’s
petition for a writ of habeas corpus. We affirm.
Sergeant Truax, a guard at the Wabash Valley Correctional Center, filed a
conduct report charging Guillen with “threatening” him. According to the report,
the officer took Guillen—who was scheduled to be drug tested along with several
other inmates—out of his cell. Guillen, walking behind the officer, loudly asked
him, “So what did you come here wanting from me, an ass whippin?” The officer
responded, “What did you just say?” Guillen answered, “You look like a young guy,
and you’re pretty stout. It won’t be an easy ass whippin.”
Guillen pleaded not guilty to the threatening charge and asked for a lay
advocate. He said at his screening interview that he did not wish to call any
witnesses, but he requested Truax’s medical and “gym use” records, which,
according to Guillen, would show that it was physically impossible for Guillen to
“kick [Truax’s] ass.” Guillen was assigned a lay advocate, and at his hearing before
the Disciplinary Hearing Board (DHB) Guillen argued that in fact it was Truax who
threatened him. Guillen further argued that he did not commit the offense of
“threatening” Truax because Truax was never actually afraid. The DHB denied
Guillen’s request for the guard’s medical and gym records as irrelevant, credited the
guard’s statement, found Guillen guilty, and revoked 90 days of good time.
Guillen’s initial administrative appeal was denied. In denying his subsequent
appeal, the prison approved the DHB’s decision to deny the medical and gym
records to Guillen as indeed irrelevant.
Guillen turned to the district court, filing a § 2254 petition in which he
challenged his conviction on three grounds: the evidence did not prove that he
threatened Sergeant Truax, his request to present Truax’s medical and gym records
was wrongfully denied, and Truax’s conduct report was retaliatory. The district
court held that Guillen received all of the procedural protection required under
Wolff v. McDonnell, 418 U.S. 539 (1974), and his conviction was valid because it was
supported by “some evidence,” Superintendent v. Hill, 472 U.S. 445 (1985). The
district court did not specifically discuss the denial of the request for Truax’s
records or the retaliation allegation.
We review the district court’s decision to deny Guillen’s petition de novo and
its findings of fact for clear error. Simpson v. Battaglia, 458 F.3d 585, 592 (7th Cir.
2006). Guillen has a protected liberty interest in his earned good-time credits and
may not be deprived of them without due process. See Cochran v. Buss, 381 F.3d
637, 639 (7th Cir. 2004) (per curiam); Montgomery v. Anderson, 262 F.3d 641, 645
(7th Cir. 2001). Among the procedural safeguards afforded inmates at disciplinary
hearings is a limited right to call witnesses and present other evidence. Wolff, 418
U.S. at 566; Pannell v. McBride, 306 F.3d 499, 502-03 (7th Cir. 2002) (per curiam).
No. 05-4597 Page 3
Section B-213 of Indiana’s Disciplinary Code for Adult Offenders prohibits
“[i]ntimidation or threatening another with bodily harm or with an offense against
the person or property.” Guillen’s conviction of this offense must be supported by at
least “some evidence.” Superintendent, 472 U.S. at 455. An officer’s conduct report
alone can satisfy this lenient standard. See McPherson v. McBride, 188 F.3d 784,
786 (7th Cir. 1999). Here, Sergeant Truax’s report stating that Guillen threatened
to attack him is sufficient evidence that Guillen committed the offense. Guillen
admits that he made the statements Truax reported, but argues that Truax
misconstrued them. Guillen claims he meant to suggest that Truax was going to
deliver a beating to Guillen, not receive one from him. But the DHB was not
required to credit this explanation.
Guillen’s principal challenge to his conviction concerns his mistaken belief
that the evidence must establish that Sergeant Truax was in fear as a result of
Guillen’s statements. The code contains no such requirement of subjective fear on
the part of the person threatened, and we know of no case that imposes one for
threats made by prisoners. Without a requirement of subjective fear, Guillen’s next
argument—that the DHB wrongfully denied him access to Truax’s medical and gym
records—also fails.1 Guillen does have a conditional due process right to present
documentary evidence, but only if that evidence is relevant. See Wolff, 418 U.S. at
566. Even if these records showed that Truax had no reason to be afraid of Guillen,
because the question of Truax’s subjective fear is irrelevant to the validity of
Guillen’s conviction, we uphold the DHB’s denial of the records.
Finally, Guillen maintains here, as he did during his administrative appeals
and before the district court, that Sergeant Truax’s filing of the disciplinary report
was retaliatory. Inmates have a right to be free from arbitrary actions of
correctional officers, McPherson, 188 F.3d at 787, but the protection against such
actions are provided by adequate procedural safeguards, including that the
disciplinary decisions be supported by “some evidence.” See id.; McKinney v. Meese,
831 F.2d 728, 733 (7th Cir. 1987) (per curiam). Guillen’s assertion of retaliation
1
The government argues that this issue was procedurally defaulted, but its
contention that Guillen “never complained of a denial of [Truax’s] records during his
administrative appeal” is erroneous. Guillen did raise this issue in his second
administrative appeal, and the final reviewing authority—which is equivalent, in
this context, to the state’s highest court, see Moffat v. Broyles, 288 F.3d 978, 982
(7th Cir. 2002)—denied his claim on the merits. We do as well. See Jenkins v.
Nelson, 157 F.3d 485, 497-98 (7th Cir. 1998) (“[W]hen the last state court to address
the issue reaches its merits without invoking forfeiture, the question is open on
collateral review under § 2254.”).
No. 05-4597 Page 4
fails because he fails to establish that the proper procedures were ignored, or that
the evidence relied upon was not sufficient.
Guillen’s remaining claims—his allegedly thwarted attempt to call Sergeant
Truax as a witness at the hearing and his challenge to the prison’s policy of
randomly subjecting inmates to drug testing—were not raised in his habeas
petition. Thus they are not properly before us. See, e.g., Estremera v. United
States, 442 F.3d 580, 587 (7th Cir. 2006) (“It is well settled that ‘arguments not
raised in the district court are waived on appeal.’” (quoting Belom v. National
Futures Ass’n, 284 F.3d 795, 799 (7th Cir. 2002))).
AFFIRMED.