Virgil Smith v. Ron Neal, No. 16-1361 (7th Cir. 2016)
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NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted August 26, 2016 * Decided August 29, 2016 Before DANIEL A. MANION, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge DAVID F. HAMILTON, Circuit Judge No. 16-1361 VIRGIL J. SMITH, Petitioner-Appellant, Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. v. No. 3:15cv607 RON NEAL, Respondent-Appellee. James T. Moody, Judge. ORDER Virgil Smith, an Indiana prisoner, challenges the denial of his habeas corpus petition filed under 28 U.S.C. § 2254, alleging that his disciplinary proceeding for assaulting another inmate did not provide the process that he was due. We affirm. After examining 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)(C). * No. 16-1361 Page 2 While incarcerated at Indiana State Prison, Smith was charged in a disciplinary case with assaulting another inmate. The inmate had to be sent to a local hospital with facial injuries. Smith denied involvement, but the victim identi ed Smith as the attacker, as did a con dential informant. The incident had been captured on a video, and Smith asked the Disciplinary Hearing O cer to review it. A hearing o cer found Smith guilty, and Smith was punished with disciplinary segregation; the loss of earned-credit time, commissary, and phone privileges; and a demotion in credit class (decreasing the rate at which he could earn good-time credit). Smith petitioned for a writ of habeas corpus, which the district court granted, concluding that the hearing o cer violated Wol v. McDonnell, 418 U.S. 539, 565–66 (1974), by not reviewing the video of the incident as Smith had requested. See Smith v. Superintendent, No. 3:14-CV-1725-JVB (N.D. Ind. July 24, 2015). Smith received a new hearing with a new hearing o cer. This time the hearing o cer viewed the video but found that “poor visibility and delays in the footage” prevented him from seeing the incident clearly or identifying anyone. The o cer also received a new statement from the victim, asserting that Smith was not the attacker. Notwithstanding this statement, the o cer stood by the original conduct report and con dential information in Smith’s le identifying him as the attacker, and sanctioned Smith to the same punishments as before, plus $21,735 restitution for the victim’s medical expenses. Smith again petitioned for a writ of habeas corpus, challenging the su ciency of the evidence (in light of the victim’s exculpatory statement) and the harshness of the punishment (the added restitution). The district court denied the petition; the court said that it had reviewed the con dential record in the case and was satis ed that the nding of guilt was supported by “some evidence,” see Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454–56 (1985); Webb v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000). The court also stated that the restitution order was not a basis for habeas relief because it was within the maximum allowable sanction under the Indiana Department of Corrections’ policy guidelines. On appeal Smith argues that the district court failed to adequately examine the evidence that, he asserts, exonerates him. He points to the victim’s statement denying that he was the attacker, and argues that there was not su cient evidence to support the hearing o cer’s nding of guilt and that his right to due process was violated. The “some evidence” standard is a lenient one, requiring no more than “a modicum of evidence.” Hill, 472 U.S. at 455; see Grandberry v. Smith, 754 F.3d 425, 426 No. 16-1361 Page 3 (7th Cir. 2014). We do not reweigh the evidence presented; we con ne our inquiry to whether any reliable evidence exists to support the decision, and once found, we consider the petitioner’s exculpatory evidence only to the extent that it undermines the reliability of the evidence relied upon by the hearing o cer. Scruggs v. Jordan, 485 F.3d 934, 941 (7th Cir. 2007). Based on this highly deferential review, we agree with the district court that the record contains “some evidence” that Smith assaulted the other inmate. The hearing o cer explained that, notwithstanding the victim’s new statement, he believed Smith was guilty based on the conduct report and the con dential information in his case le. We have reviewed these materials and agree that they provide “some evidence” to support the determination of guilt. 1 Smith also argues that the district court misapprehended his challenge to the restitution order, which he regarded as retaliatory because it was imposed only after he prevailed on his habeas petition. But restitution does not impact the fact or duration of Smith’s con nement and therefore is not a valid basis for habeas corpus relief. See 28 U.S.C. § 2254(a); Bailey v. Hill, 599 F.3d 976, 979–80 (9th Cir. 2010); Arnaiz v. Warden, Fed. Satellite Low, 594 F.3d 1326, 1329 (11th Cir. 2010); see also DeWalt v. Carter, 224 F.3d 607, 617 (7th Cir. 2000). And to the extent he suggests that the court overlooked a due process claim that his decisionmaker was vindictive, he failed to demonstrate bias. Not only was Smith’s case heard by a new o cer, see United States v. Cheek, 3 F.3d 1057, 1064 (7th Cir. 1993), but also his unsupported allegations of vindictiveness do not overcome the presumption of honesty and integrity to which the o cer is entitled, see Piggie v. Cotton, 342 F.3d 660, 666–67 (7th Cir. 2003). On August 10, 2016, Smith led a motion to dismiss his disciplinary case. We DENY that motion. AFFIRMED. To the extent Smith’s appeal can be read to challenge the reliability of the confidential informant, see Whitford v. Boglino, 63 F.3d 527, 535 (7th Cir. 1995), the informant’s statement is corroborated by other evidence in the record. 1
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