Alkhalidi v. Davis

88 F. App'x 931
CourtCourt of Appeals for the Seventh Circuit
DecidedFebruary 6, 2004
DocketNo. 03-3324
StatusPublished

This text of 88 F. App'x 931 (Alkhalidi v. Davis) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alkhalidi v. Davis, 88 F. App'x 931 (7th Cir. 2004).

Opinion

ORDER

Indiana inmate Abdullah T. Alkhalidi petitioned for a writ of habeas corpus under 28 U.S.C. § 2254, challenging a prison [932]*932disciplinary conviction that cost him 180 days of earned credit time and a demotion in credit earning class. As relevant here, Alkhalidi contended that he was denied due process because he received inadequate notice of the charge, his two witnesses submitted written statements rather than live testimony, his disciplinary conviction was not supported by some evidence, and the conviction was retaliatory. The district court denied the petition, and we affirm.

Alkhalidi’s disciplinary conviction stems from a conduct report submitted by Correctional Sergeant M. Tibbies. Tibbies said that, while searching Alkhalidi’s cell on November 17, 2001, she found a small sack containing two packets of marijuana and one packet of tobacco above the inmate’s cabinet. Sergeant A. Neal helped conduct the search. Alkhalidi contends, however, that Tibbies falsified the conduct report in retaliation for his complaints against the officers. He gives a different version of the facts: Tibbies and several other officers-Sergeants Neal, Florer, Emerson, and Young-had engaged in a pattern of harassment against him because he is Iraqi and a Muslim. Alkhalidi complained about the discriminatory conduct, including one incident when Florer told him to go back to his own country. Tibbies and Neal then shook down his cell. Frustrated at finding no more than a paperclip, which Tibbies said she thought could be used as a pin for a hand grenade, Neal told Alkhalidi, ‘You got away this time but you better leave Sergeant Florer alone!” Tibbies then lied about finding a “green leafy substance resembling marijuana” in Alkhalidi’s cell.

Alkhalidi received notice of the disciplinary charge against him-possession of an unauthorized substance-two days after the search and fifteen days before the hearing. When the charge was first reviewed with Alkhalidi, an officer recorded in the “screening report” that Alkhalidi had requested two witnesses, Sergeants' Emerson and Young.

In addition to Sergeant Tibbles’s conduct report, evidence later adduced at the hearing included the “evidence card” on which Tibbies categorized the substance allegedly confiscated, the staff log from November 17 documenting that a search had occurred, a photograph of the substance and laboratory tests confirming that it was marijuana, and a memorandum authored by Sergeant Neal. In the memorandum Neal recounts that he was assisting Tibbies with the “shakedown” when Tibbies announced her discovery of “a small sack with a green substance [sic] the resemble marijuana and tobacco.”

For his part, Alkhalidi testified to his version of events and also submitted three corroborating affidavits from inmates and a letter of complaint describing the earlier incident of harassment by Sergeant Florer. But the officers whose testimony Alkhalidi requested, Sergeants Emerson and Young, did not appear at the hearing and instead submitted written statements. In hers Emerson attests that she saw the officers conducting a “shakedown” of Alkhalidi’s cell, and that when they were finished Sergeant Tibbies had “pieces of paper with a green leafy substance in them.” Young’s unsigned statement contains only the cryptic line, “conduct report stays as written.” Both officers left unchecked the boxes beside a list of preprinted reasons for not appearing at the hearing, and offered no other. Alkhalidi chose to submit to the Conduct Adjustment Board (CAB) only Emerson’s statement, not Young’s, and informed the CAB that he had another statement from Young but did not have it with him to present at that time.

Alkhalidi has a protected liberty interest in his good-time credits and credit-earning class and may not be deprived of either without the minimum requirements of due [933]*933process. Montgomery v. Anderson, 262 F.3d 641, 644-45 (7th Cir.2001). Due process requires at least 24 hours’ written notice of the charge, an opportunity to present a defense to an impartial decision-maker, a written explanation of the fact-finder’s decision, and some evidence to support that decision. Wolff v. McDonnell, 418 U.S. 539, 563-66, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Superintendent, Mass. Corr. Instit., Walpole v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985); Piggie v. Cotton (Piggie I), 344 F.3d 674, 677 (7th Cir.2003).

As he did in the district court, Alkhalidi contends here that he was denied his due process right to adequate notice because the officers who searched his cell did not inform him at the time of the search that they had found an unauthorized substance. But due process requires only that an inmate be informed of the charge against him at least twenty-four hours before the CAB hearing. Wolff, 418 U.S. at 564; Henderson v. United States Parole Com’n, 13 F.3d 1073, 1077 (7th Cir.1994). Alkhalidi received notice fifteen days before his hearing; there was no due process violation.

Alkhalidi also renews his contention that prison officials violated his due process rights by keeping him from presenting live testimony from Sergeants Emerson and Young. According to Alkhalidi, the officers’ statements did not address whether Sergeant Tibbies had actually shown them the marijuana while in Alkhalidi’s cell, a fact question he believes to be central to his defense of retaliatory motive. The state has never explained why these witnesses did not provide live testimony. Instead, the state simply observes that the witnesses gave written statements and argues-incorrectly, in view of the record-that Alkhalidi failed to timely request their testimony and thus waived his right to complain.

The right to present a defense includes the right to call witnesses, although such a right is not absolute. See Wolff, 418 U.S. at 566; Pannell v. McBride, 306 F.3d 499, 503 (7th Cir.2002) (per curiam). Due process does not demand that prison officials allow inmates to call witnesses whose testimony would be irrelevant, repetitive, or unnecessary. Pannell, 306 F.3d at 503. And prison officials may at times refuse to produce witnesses because of legitimate institutional concerns such as maintaining security. Wolff 418 U.S. at 566; Piggie I, 344 F.3d at 677. But when witness testimony is in order it should be live unless prison officials have a valid reason for proceeding otherwise. Piggie I, 344 F.3d at 677; Pannell, 306 F.3d at 503-04; Whitlock v. Johnson, 153 F.3d 380, 388 (7th Cir.1998); Forbes v. Trigg, 976 F.2d 308, 317-318 (7th Cir.1992).

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88 F. App'x 931, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alkhalidi-v-davis-ca7-2004.