Case Information
*1 Hon. KENNETH F. RIPPLE, Circuit Judge Hon. DANIEL A. MANION, Circuit Judge Hon. DIANE P. WOOD, Circuit Judge Aрpeal from the United States District Court for the ALVIN RICHARDS, Northern District of Indiana,
Petitioner-Appellant South Bend Division.
v. No. 3:04CV0708 AS EDWARD BUSS, Allen Sharp, Judge.
Respondent-Appellee.
O R D E R
Indiana prisoner Alvin Richards petitioned the district court for a writ of habeas corpus under 28 U.S.C. § 2254, alleging that the prison conduct adjustment board (“CAB”) demoted him to a lower credit class and deprived him of earned good time credits without due process. The district court found that the prison authorities acted properly and denied Richards’s petition. We affirm.
In 2004 an officer at Indiana State Prison began investigating Richards аfter thousands of dollars were deposited to his prison commissary account via money order, bringing the balance of his account to over $10,000. Richards clаimed that a relative sent him the money to pay for his attorney. The officer’s investigation revealed, however, that individuals from Greenwood, Wisconsin, paid the mоney to Richards for contraband that he trafficked in the prison, and that they forged the signatures of Richards’s relative on the money orders to avoid detectiоn. The officer also secured corroborating statements from fellow prisoners, some of whom stated that they had received tobacco from Richards in the past. At the close of his investigation the officer compiled a confidential report of his findings (the CAB would later refer to this document as the “Case Report”) and placed it in Richards’s case file for review.
Based on this information, the CAB charged Richards with the infraction of “giving or receiving anything of value without authorizаtion.” Richards was provided a “Notice of Disciplinary Hearing” a “Report of Conduct,” and “Report of Investigation” summarizing the officer’s findings. Richards, however, requеsted the CAB to produce additional information, which the CAB claimed it had either already done, was unable to do because Richards had not specified whаt evidence he sought, or was not empowered to do. After stating that it reviewed all of the evidence presented in Richards’s case file, the CAB found that he “did rеceive a large amount of money” and accordingly found him guilty. The CAB thus demoted Richards from a credit class of I to II, and deprived him of 180 days earned credit time.
Aftеr Richards exhausted his appeals in the prison administrative system he filed a petition for a writ of habeas corpus, alleging that the CAB violated due procеss by denying him the opportunity (1) to review the “Report of Investigation” and money order receipts; (2) to present the “Report of Investigation” and money order receipts to the CAB; and (3) to call as witnesses the individuals from Wisconsin who forged the signature of Richards’s relative on the money orders and the prisoner who stated Riсhards sold him tobacco. He also argued that the CAB’s finding of guilt was not supported by “some evidence,” and that it failed to state adequately the reasons underlying its finding. The district court denied Richards’s petition in its entirety.
Richards now appeals, renewing the arguments he made to the district court.
Richards has a protected liberty intеrest in his earned good time credits and credit-
earning class and may not be deprived of either without due process.
See Piggie v.
McBride
,
Richards first asserts that the CAB violated due process by denying him the
opportunity to review and present the “Reрort of Investigation” and money order
receipts to the CAB. As a preliminary matter, the record shows that the CAB provided
Richards with this report when it gave him the “Noticе of Disciplinary Hearing,” so his
argument fails on that score. We can assume, however, that Richards is also referring
to the confidential Case Report,
see Anderson v. Hardman
,
Richards’s argument that he was deprived of the opportunity to review and
present the money order receipts likewise fails. He asserts that, had he been given the
opportunity to review the receipts, the signatures on the receipts would have shown
that he rеceived money only from his relative. But the CAB reviewed the receipts (as
well as separate evidence that the signatures on them were forgeries) before reaching
its decision; it thus would have taken into account any exculpatory value that they
possessed.
See White v. Ind. Parole Bd.
,
Richards next argues that the CAB impermissibly denied him the opportunity
to present testimony of the individuals from Wisconsin who forged the signatures of
his relative on the money order receipts and the prisoner who told the investigаtor that
Richards sold tobacco. The CAB has no authority to compel out-of-state individuals to
testify.
See id.
(stating that CAB “lacked the compulsory process to require civilians
to appear before it”). It also acted within its authority to deny Richards’s request to
compel the testimony of the prisoner who told the investigator thаt Richards sold
tobacco. The CAB denied Richards’s request to compel the prisoner’s testimony on the
basis that Richards did not specify who that offender was. Richards, of course, was
trying to claim that he had not sold contraband to anyone; it therefore would have been
hard for him to identify which person had allegedly fabriсated a claim against him.
Nevertheless, there are two reasons why the CAB’s denial of his request can stand.
First and most importantly, Richards lacks the right of confrontation in this context,
see Rasheed-Bey
, 969 F.2d at 361, and compelling the prisoner to testify would
compromise his safety by revealing his identity,
see Whitford
, 63 F.3d at 535.
Additionally, we have held before that even a violatiоn of the right to call witnesses is
harmless unless there is evidence that the testimony could have aided the prisoner’s
defense.
See Piggie
,
Richards’s final argument is that the CAB’s guilty finding is not supported by
“some evidence” and adequately explained. The “some evidence” standard requires no
more than a mere “modicum of evidence,” and we will uрhold the CAB’s decision if
there is any evidence to support its finding of guilt.
See Webb
,
A FFIRMED .
Notes
[*] After an examination of the briefs and the record, we have concluded that oral argument is unnecessary. Thus, the appeal is submitted on the briefs and record. See Fed. R. App. P. 34(a)(2).