Smith, Eric D. v. Wilson, Bill , 196 F. App'x 430 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 6, 2006
Decided September 14, 2006
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
ERIC D. SMITH, Appeal from the United States
Petitioner-Appellant, District Court for the Northern
District of Indiana, South Bend
No. 06-1389 v. Division.
BILL WILSON, No. 04 C 501
Respondent-Appellee. Allen Sharp, Judge.
Order
We remanded this case last year so that the district judge could resolve a single question:
whether Eric Smith had refused to attend a prison disciplinary hearing (as the respondent
maintains) or had never been notified of the hearing (as Smith maintains). See Smith v. Jordan,
No. 05-1186 (7th Cir. Aug. 12, 2005) (unpublished order). A magistrate judge held an evidentiary
hearing and concluded that Smith is lying. The magistrate believed the contrary statement of a
guard who testified that he had visited Smith in his cell to extend an opportunity to attend the
hearing, and that Smith had refused point blank. The prison's contemporaneous log book reflects
that decision. After de novo consideration, the district judge agreed with the magistrate judge.
Smith now argues that he was entitled to a jury trial on this factual dispute, but the
contention is frivolous. The court is the sole factfinder in collateral proceedings under 28 U.S.C.
No. 06-1389 Page 2
§2254. See §2254(e). A collateral attack is not an action "at law" to which the seventh amendment
applies. Smith also maintains that the court should have subpoenaed additional witnesses, but the
magistrate did not abuse his discretion in rejecting this request. The proposed testimony would
have been marginally relevant, if relevant at all. Smith's remaining arguments are addressed to
issues that were resolved adversely to him on the first appeal and need not be reconsidered.
Affirmed