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UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
TIM GODBY,
Petitioner-Appellant,
v.
CRAIG A. HANKS,
Respondent-Appellee.
No. 01-4307
51 Fed. Appx. 592
November 20, 2002 *, Submitted
* 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 the record. See Fed.
R. App. P. 34(a)(2).
November 20, 2002, Decided
NOTICE:
RULES OF THE SEVENTH CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED
OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR
THIS CIRCUIT.
A Wabash
Valley Correctional Facility conduct adjustment board ("CAB") found
Indiana inmate Tim Godby guilty of aiding and abetting the trafficking of
tobacco, sanctioned him with one year in disciplinary segregation, and revoked
180 days of earned-credit time. After exhausting his state remedies, Godby
sought a writ of habeas corpus in federal district court under 28 U.S.C. §
2254. The court denied his petition, and Godby appeals. We affirm.
[*593] Godby's disciplinary charge stemmed from an
investigation into tobacco trafficking at the Wabash Valley Correctional
Facility. According to the investigation report, confidential sources provided
prison officials with reason to believe Godby and two other inmates, Ulises
Ledo and Steven Anderson, were
trafficking tobacco. During the investigation prison officials seized property
from Anderson, which included two money order receipts documenting $200 and
$125 sent from Anderson to Ledo's family and another money order receipt for
$200 sent from Godby's family to Anderson's family. Officials searched Ledo's
cell and discovered the presence of a strong tobacco odor, tobacco residue on a
shelf, clear plastic baggies, and a laundry cap (commonly used to measure
tobacco for sale) with a tobacco residue inside. A corrections officer searched
Godby and found in his pocket a lighter and a plastic baggie containing a
tobacco-like substance. In Godby's cell, corrections officers found a baggie
with a tobacco-like substance, a package of Bugler rolling papers, a shampoo bottle with
tobacco-like substance traces in the lid, and a green deodorant lid with
apparent cigarette residue. On August 22, 2000, Godby was first charged with
violating disciplinary code B-245, which prohibits use or possession of tobacco and associated products. On August 28
the CAB instead found him guilty of violating C-353, "unauthorized
possession," and imposed a suspended sanction of loss of 30 days of
earned-credit time. Godby did not appeal the C-353 ruling within the prison
system.
On September 26, 2000, Godby
was charged with violations of code A-111 (attempting to commit any Class A
offense; aiding commanding, inducing, counseling, procuring or conspiring with
another person to commit a Class A offense the same as committing the offense)
and A-113 (a class A offense: engaging in trafficking with anyone who is not an
offender in the same facility). On October 2, 2000, a CAB found Godby guilty of
violating A-111 and A-113 and sanctioned him with a written reprimand, two
months without telephone privileges, one year of disciplinary segregation, and
revocation of 180 days earned-credit time.
Godby appealed the Class A-111 and A-113 decision to the Indiana
Department of Corrections' final reviewing authority, C.A. Penfold, who
remanded the case for a rehearing because Godby requested, but was never shown,
a photograph of the evidence seized. On January 21, 2001, Godby was
notified of the rehearing, which
occurred on January 30. Godby again requested a picture of the evidence, as
well as the weight of the seized tobacco, and a voice stress test of himself
and the two confidential informants. Instead prison officials provided him with
a "Notice of Confiscated Property" listing the seized items. Godby
was again found guilty, and he appealed the CAB's decision to Penfold, who
affirmed. Having exhausted his administrative remedies regarding his A-111 and
A-113 offense, Godby filed his § 2254 petition in the district court. On appeal
Godby reasserts the arguments he raised in the district court: 1) insufficient
evidence supports the CAB's determination; 2) the CAB inadequately stated its
reasons for adjudging Godby guilty; and 3) his punishment for trafficking
violated the Double Jeopardy Clause of the Fifth Amendment. He also makes two
arguments that he failed to present to the final prison reviewing authority or
the district court. He contends that he could not adequately marshal a defense
to the charge because prison officials failed to provide him a copy of the
trafficking statute. And he argues that by denying him the opportunity to view
the requested photograph of items
seized, prison officials prevented him from presenting exculpatory evidence.
But we need not consider these arguments because [*594] Godby forfeited
them as potential grounds for relief by leaving them out of his administrative
appeal to Penfold. See 28 U.S.C. § 2254(b)(1)(A); Moffat v. Broyles, 288 F.3d
978, 981-82 (7th Cir. 2001).
Because
prisoners have a liberty interest in good-time credits, they are entitled to
due process before those credits are taken away. See, e.g., Montgomery v.
Anderson, 262 F.3d 641, 643-44 (7th Cir. 2001). Due process requires only that
"some evidence" support a CAB's determination of guilt. See Superintendent,
Mass. Corr. Inst. v. Hill, 472 U.S. 445, 457, 86 L. Ed. 2d 356, 105 S. Ct. 2768
(1985); Webb v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000). Godby contends the
evidence to convict him fell short of even this "meager" level of
proof. n1 See Webb, 224 F.3d at 652
(7th Cir. 2000) (quoting Hill, 472 U.S. at 457 (1985)). The CAB credited the
investigating officers' conclusion that tobacco was brought into the prison,
where Godby purchased and distributed
it. The tobacco and rolling papers recovered in Godby's cell in conjunction
with the evidence that Godby's family sent $200 to Anderson's family provided
ample information to support the CAB's conclusion that Godby participated in
tobacco trafficking. His further complaint that "the evidence consisted
only of the staff word, and nothing more" is also unavailing, because the
conduct report alone constitutes "some evidence." See McPherson v. McBride, 188 F.3d 784, 786
(7th Cir. 1999).
Next Godby attacks the sufficiency of the CAB's statement setting
forth the evidence it relied on and the reasons for its decision. He claims the perfunctory phrase, "CAB believes staff C/ R and report of
investigation to be true and accurate and find [sic] Tim Godby # 880190
guilty" is constitutionally inadequate. The reason given, while brief,
suffices because it informs Godby that the Board credited the investigation
report connecting him to trafficking activity and the corresponding conduct
report detailing the tobacco discovered in his cell. See Forbes v. Trigg, 976 F.2d 308, 318 (7th
Cir. 1992) (statement acceptable if it provides inmate with grounds for
decision and essential facts supporting inferences) (citation and internal
quotations omitted); Saenz v. Young, 811 F.2d 1172, 1174 (7th Cir. 1987) (extremely
brief statement of reasons constitutionally sufficient where "no
mystery" surrounded board's reasoning). Consequently, the CAB's statement,
while spare, meets constitutional requirements.
Godby's double jeopardy argument fares no better. He relies entirely on a copy of Penfold's response to Ledo's disciplinary appeal, in which Penfold dismissed Ledo's trafficking sanction with the explanation that it gave "the appearance of double jeopardy." (Although we do not have the record of it, Ledo was also apparently previously found guilty of possession.) We doubt that prison disciplinary proceedings implicate double jeopardy concerns. See Meeks v. McBride, 81 F.3d 717, 722 (7th Cir. 1996) (acquittal on prison disciplinary charge does not bar subsequent disciplinary proceeding on same charge); see also Garrity v. Fiedler, 41 F.3d 1150, 1152-53 (7th Cir. 1994) (subsequent criminal prosecution for same conduct that resulted in prison disciplinary sanctions does not implicate the prohibition against double jeopardy); United States v. Brown, 59 F.3d 102 (9th Cir. 1995) (same); cf. Montgomery, 262 F.3d at 646 (prison discipline is not a form of criminal prosecution). But [*595] we need not reach the issue because Godby has failed to cite any authority for the proposition that receiving multiple prison disciplinary sanctions for the same conduct could constitute double jeopardy. See Fed. R. App. P. 28(a)(9) (appellate brief must contain an argument with appellant's contentions and citations to authorities on which appellant relies). Even pro se litigants' briefs must contain arguments with citations to support them. See Anderson v. Hardman, 241 F.3d 544, 546 (7th Cir. 2001). And Godby's additional claim that by charging him simultaneously under A-111 and A-113 prison officials somehow violated the prohibition against double jeopardy goes nowhere because he raises it for the first time on appeal. See 28 U.S.C. § 2254(b)(1)(A); Moffat, 288 F.3d at 981-82 (7th Cir. 2001).
AFFIRMED
FOOTNOTE:
n1 In his opening brief Godby attacks the
sufficiency of the evidence for the B-245 charge. Because he neither appealed
the B-245 violation within the prison's administrative system nor raised it in
the district court, we do not consider it. See, e.g., Markham v. Clark, 978 F.2d 993, 995 (7th Cir. 1992).
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