Raphael Driver v. Indiana Parole Board ( 2021 )

NONPRECEDENTIAL DISPOSITION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 January 5, 2021*
Decided January 7, 2021
Before
DIANE S. SYKES, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 20-1622
RAPHAEL DRIVER, Appeal from the United States District
Petitioner-Appellant, Court for the Southern District of Indiana,
Indianapolis Division.
v. No. 1:20-cv-140-JRS-TAB
INDIANA PAROLE BOARD, James R. Sweeney II,
Respondent-Appellee. Judge.
ORDER
A hearing officer at Indiana’s New Castle Correctional Facility found Raphael
Driver guilty of assaulting a guard and a case manager. The prison sanctioned him with
six months of disciplinary segregation and a temporary suspension of phone and
commissary privileges. Driver, who says he has paranoid personality disorder and post-
traumatic stress disorder, maintains he is innocent of those charges and asserts that the
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 20-1622 Page 2
hearing officer disregarded witness testimony and his mental-health evidence. He
petitioned for a writ of habeas corpus, 28 U.S.C. § 2254, contending that he was
punished without due process because there was insufficient evidence to support the
violation. The district court dismissed his petition, concluding that his allegations could
not lead to relief under § 2254 because they did not concern the loss of good-time credits
and therefore did not affect the duration of his state custody.
Driver has since been released on parole, so we must first determine whether his
petition is now moot. A live case or controversy must exist at all stages of review.
United States v. Juvenile Male, 564 U.S. 932, 936 (2011); United States v. Munsingwear, Inc.,
340 U.S. 36, 39–40 (1950). Ordinarily, parole does not remove a petitioner from state
“custody” for purposes of a habeas petition. See Jones v. Cunningham, 371 U.S. 236, 243
(1963); United States v. Trotter, 270 F.3d 1150, 1153 (7th Cir. 2001). But for this case to be
live, Driver must show that he could obtain some “potential benefit” from a favorable
decision. See Pope v. Perdue, 889 F.3d 410, 415 (7th Cir. 2018).
On that score, Driver says that his imprisonment was wrongfully extended
because the parole board denied his application in November 2019 as a result of the
disciplinary sanctions he challenges. But his disciplinary record was only one reason for
the denial; the parole board cited the violent nature of his offense and his criminal
history as two others. The best that Driver can do is “point to the possibility that he might
have served a shorter period” of imprisonment were it not for the discipline, but that is
not enough. See Eichwedel v. Curry, 700 F.3d 275, 279 (7th Cir. 2012) (emphasis in
original). A federal court cannot now retroactively shorten his time in prison, nor can it
shorten his parole term. Under Indiana law, because he has already been re-
incarcerated once after obtaining parole, Driver must serve parole until either two years
from his release from prison or until the fixed discharge date of his sentence in
April 2021, whichever is sooner. See IND. CODE § 35-50-6-1(b). Even if he had been
paroled in November 2019, therefore, his time in custody would have still lasted until
April 2021. Because a favorable decision could provide him no redress with respect to
his time in custody, his case is moot.
Accordingly, we VACATE the decision and REMAND with the instruction to
dismiss the petition as moot. See Munsingwear, 340 U.S. at 39.