Martin BRYAN, Petitioner-Appellant, v. Jack DUCKWORTH, Respondent-Appellee.
No. 94-2509.
United States Court of Appeals, Seventh Circuit.
Decided June 7, 1996.
88 F.3d 431
Threats lie along a continuum of seriousness and gravity. Yet the Sentencing Commission did not compose a multi-factor approach or ask the courts to balance objectives. It created a dichotomy between “express” and “implied” threats of death.... [F]eigning is ordinary for a bank robbery. It may have placed the teller in fear of harm, but harm is not death, and an inference from the announcement of a weapon is not an “express” threat. The application note shows that the Sentencing Commission believes that a conditional threat can be “express“; if, as the majority holds, an implied conditional threat also qualifies, then “express” has been read out of the Guideline.
Id. at 999-1000 (Easterbrook, J., dissenting). See also Cadotte, 57 F.3d at 662 (Arnold, J., dissenting) (“If the word ‘express’ is to be accorded any meaning at all, I do not think that [the defendant‘s statement that he had a .357 magnum and that no one would get hurt if she put the money in the bag] can reasonably be said to constitute an ‘express threat of death,’
We agree with the reasoning of the Eleventh Circuit, and views of Judges Easterbrook and Arnold that to satisfy the qualifier “express,” a defendant‘s statement must distinctly and directly indicate that the defendant intends to kill or otherwise cause the death of the victim.3 Because four of the five examples in Application Note 6 do not, they are not controlling. See Stinson v. United States, 508 U.S. 36, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) (holding that commentary in sentencing guidelines that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute or unless it is plainly erroneous or inconsistent with the guideline it interprets). Similarly, reliance on the commentary‘s statement regarding the underlying intent of the guideline is unavailing if it leads to a determination that does not conform with the guideline itself. We therefore reject the view of the Fourth, Seventh, Eighth, Ninth, and Tenth Circuits. We acknowledge that the district court‘s “common sense” view of the guideline is just that, but we are constrained by the mandate of Stinson and its straightforward application in this case.
Applying this rule to each of defendant‘s four demand notes, we find that none warrants the two-point enhancement of
III.
The ruling of the district court is REVERSED, defendant‘s sentence is VACATED, and the matter is REMANDED for resentencing not inconsistent with this opinion.
Martin Bryan, Pendleton, IN, pro se.
Martha J. Arvin, Office of the Attorney General, Indianapolis, IN, for Jack R. Duckworth.
Before POSNER, Chief Judge, and FAIRCHILD and RIPPLE, Circuit Judges.
An Indiana prison guard named Smith was escorting a nurse named Richards through the cell block in which the petitioner, Bryan, was housed. Smith and Bryan got into an argument, and, according to Smith, Bryan reached through the bars of his cell in an unsuccessful effort to hit Smith. Smith filed a disciplinary charge of attempted battery against Bryan, who denied having tried to strike him. Unable to obtain a statement from Richards (which he claimed would support his denial), Bryan asked the prison‘s disciplinary board to obtain a statement from her. It refused, found him guilty of attempted battery, and ordered him confined in segregation for a year. After exhausting his prison administrative remedies and while still confined in segregation, Bryan brought this action for federal habeas corpus, claiming that the board‘s refusal to obtain a statement from Richards denied him due process of law. The district court ordered the record expanded with an affidavit from Nurse Richards concerning her recollection of the incident. See Rule 7(b) of the Rules Governing Section 2254 Cases in the United States District Courts. The affidavit was submitted and it states that she did not witness the incident. On the basis of this affidavit the district court denied relief.
Bryan has served his year in segregation and we must decide whether this moots his claim, since he no longer is in the custody that he challenged by asking for habeas corpus.
We have been speaking of “conviction,” but the custody of which Bryan‘s petition complains is pursuant not to a conviction but to a sanction imposed by a prison‘s disciplinary board. The novel question presented by this appeal is whether in such a case the petitioner must plead and prove collateral consequences or whether, as in the case of a conviction, those consequences are presumed and the burden of rebutting the presumption is on the respondent. We think the latter is the better view. A number of cases have found collateral consequences of a disciplinary order that are sufficient to stave off a finding of mootness. See Jackson v. Carlson, 707 F.2d 943, 946 (7th Cir. 1983); McCollum v. Miller, 695 F.2d 1044, 1047-48 (7th Cir. 1982); Leonard v. Nix, 55 F.3d 370, 373 (8th Cir. 1995); Robbins v. Christianson, 904 F.2d 492, 495-96 (9th Cir. 1990). These include effects on parole (abolished in the federal system but not in most states, including Indiana), see
There is another reason for taking this approach. A disciplinary punishment so trivial as to be unlikely to have any collateral consequences will not be actionable in federal habeas corpus, because it will not have deprived the petitioner of his “liberty” within the meaning of the due process clause of the Fourteenth Amendment as interpreted in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). This observation brings into the view the next question, which is whether Bryan, having leapt the custody barrier, can also get over the liberty barrier. We do not have enough information to determine this. Sandin involved only 30 days of segregation, whereas Bryan got a year. The difference in length need not be decisive. If the conditions of confinement in segregation were not so different from those of the general prison population as to “work a major disruption in his environment,” or equivalently an “atypical, significant deprivation,” id. at 484, 115 S.Ct. at 2301, then, however protracted, it would not count as a deprivation of liberty; the decrement of liberty would be too slight. But if conditions in segregation were considerably harsher than those of the normal prison environment—a factual issue requiring for its resolution a comparison between the conditions of confinement of the general population and those in the segregation unit—then a year of it might count as a deprivation of liberty where a few days or even weeks might not. This will require a remand to determine. Whitford v. Boglino, 63 F.3d 527, 533 (7th Cir. 1995) (per curiam). This is provided of course that there is some merit to Bryan‘s claim that he was denied due process. But we shall see that there is.
We have suggested that the proper comparison is between the conditions of segregation in Bryan‘s prison and the conditions of confinement of the prison‘s general population. But it is not certain that this is the proper comparison. The part of the Sandin opinion that announces the test of “major disruption... atypical, significant deprivation” does indeed imply that the proper comparison is between the segregated or other
We turn now to the question whether, assuming that Bryan did suffer a deprivation of liberty within the meaning that the word “liberty” bears in the due process clause, he was denied due process of law. For, if not, a remand would have no purpose.
Bryan claims that he was denied due process by being barred in effect from calling Nurse Richards as a witness at his disciplinary hearing. The affidavit that she submitted at the district judge‘s direction suggests that the error if any was harmless, because she did not witness the incident. But Bryan argued in the district court that if he had struck at Guard Smith “it is only logical that [Richards] would have seen such an incident considering her location to the alleged incident” (emphasis added). In other words, she was so close that if she didn‘t see the incident it didn‘t happen; she was a witness after all.
We don‘t know whether she was that close. But Bryan can hardly be faulted for having failed to establish the distance. The district judge, in violation of Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982), failed to apprise Bryan, a nonrepresented prisoner litigant, of the consequences under
The judgment for the defendant is reversed and the case remanded to the district court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
We ought to decide the appropriate interpretation of Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), before returning this case to the district court. I do not believe that there is, as a practical matter, a judicial economy in returning this case to the district court without our first deciding the appropriate legal standard that must govern further proceedings. The Indiana Reformatory is classified as a maximum security institution for male felons. Indiana Dep‘t of Correction v. Indiana Civil Rights Comm‘n, 486 N.E.2d 612, 614 (Ind. Ct. App. 1985). Before we ask the district court to go behind this label of “maximum security” and to compare minutely the conditions at the Indiana Reformatory with those of other institutions that bear the same classification, we ought to determine whether such a judicial inquiry was contemplated by the Supreme Court. It does not seem at all practical to expect a federal judge to make a determination as to which state prison is the “most secure” in Indiana.