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A split 7th Circuit Court of Appeals affirmed the denial of a prisoner’s habeas petition after 5,700 days of accrued good time credit were revoked and his prison release date was extended by more than 15 years following his assault of a correctional officer.
According to court records, Tony Love entered state custody in 2002 to serve a 55-year prison sentence for murder. Between then and 2018, he earned thousands of days of good time credit.
But the Indiana Department of Correction revoked all of Love’s good time credit after conducting a hearing and finding him guilty of battering a correctional officer.
The fight took place in August 2018, when another inmate, Antwan Webb, started an argument with a correctional officer.
Prison surveillance cameras recorded video of the brawl, during which the officer pepper sprayed Webb to restrain him, and the encounter turned violent.
Nearby inmates, including Love, Sanchez Williams and Matthew Schrock Jr., attacked the officer and other responding officers. Love struck the officer in the head several times with a closed fist, causing severe injuries.
State prosecutors pursued criminal charges against Love, resulting in convictions in 2019 for felony battery and an additional, consecutive prison term of four years and six months.
The Department of Correction also instituted disciplinary proceedings in 2018, found Love guilty of violating prison rules and imposed sanctions that included the revocation of 5,700 days of his accrued good time credit.
In 2020, an appeal review officer vacated Love’s 2018 sanction and designated the case for rehearing. A hearing officer again found Love guilty of an “A102” violation for battery and imposed a mostly identical sanction, including the revocation of 5,700 days of good time credit.
The state’s disciplinary code for adult offenders governs how and when inmates are sanctioned for misconduct. According to the code, an inmate can lose a maximum of one year of good time credit for a single offense.
The DOC’s correction commissioner issued Executive Directive #17-09 in February 2017, which partially superseded the disciplinary code and imposed harsher sanctions for certain conduct, including assault/battery.
Prior to the directive, Love would have been eligible to lose up to one year of good time credit. But the directive, which was applied by the hearing officer, enhanced Love’s sanction and led to the vacating of 5,700 days of good time credit.
Love’s administrative appeal of that decision was denied.
With the administrative procedures available to Love exhausted, he filed a pro se 28 U.S.C. § 2254 petition.
The United States District Court for the Southern District of Indiana denied relief, finding the grounds Love advanced either lacked merit or implicated questions of state law not cognizable on federal habeas.
A split 7th Circuit affirmed the district court’s ruling, finding Love procedurally defaulted his constitutional claims and forfeited the same by failing to present them in the district court.
Judge Michael Brennan wrote the majority opinion.
According to Brennan, Love offered two primary arguments in his appeal: that the DOC cannot, consistent with due process, predetermine how it will use its discretionary power over sanctions without first considering arguments in mitigation, and that the executive directive is arbitrary facially and as applied.
But the appellate court agreed with the state that Love procedurally defaulted the two constitutional claims he brought on appeal.
“While we do not require a prisoner to ‘articulate legal arguments with the precision of a lawyer,’ during state proceedings, the claims Love raised in his administrative appeals bear no resemblance to the constitutional claims he now brings,” Brennan wrote.
According to Brennan, Love argued the DOC caused his procedural default by misleading him as to which policies applied to his disciplinary hearing and what potential penalties he faced.
Love contended he could not have challenged the directive because the department didn’t provide it to him and he was told a different policy would apply, and the appellate court agreed. However, the court also found Love failed to show prejudice because the executive directive that required the loss of all his good time credit is constitutional.
“So, even if the Department caused Love to procedurally default his constitutional claims, he suffered no prejudice,” Brennan wrote. “The Department’s imposition of sanctions did not violate Love’s constitutional rights at all, let alone in a way that worked to his actual and substantial disadvantage.”
Love also did not connect his constitutional arguments to the prejudice inquiry, Brennan added.
Further, the appellate court dismissed Love’s argument that the directive and his sanction were unconstitutionally arbitrary.
Brennan wrote that the department gave Love a clear statement of reasons why he lost his good time credit.
“Love identifies no constitutional violation in his prison discipline proceedings. Given this, he cannot show prejudice to excuse procedural default,” the judge wrote. “He therefore also cannot demonstrate ‘exceptional circumstances’ or an impact on ‘substantial rights’ to set aside his forfeiture. So, Love’s constitutional arguments are procedurally defaulted and forfeited.”
Judge Thomas Kirsch concurred in the judgment, writing separately that absent from Love’s district court filings was any suggestion that the prison’s policy or his sanction violated the Constitution.
“In sum, Love’s constitutional arguments are not properly before us because he never presented them to the district court,” Kirsch wrote. “Because Love’s waiver precludes review of the merits and renders issues of procedural default moot … I would reach neither and concur in the judgment alone.”
Senior Judge David Hamilton dissented, writing that a constitutional problem arose with the additional punishment imposed on Love by prison officials, who “have attempted here an unprecedented extension of Supreme Court jurisprudence on prison disciplinary procedures.”
The judge wrote that Love’s punishment went far beyond the limits implicit in the Supreme Court’s leading decisions on due process in prison discipline, Wolff v. McDonnell, 418 U.S. 539 (1974), and Superintendent v. Hill, 472 U.S. 445 (1985).
“Also, in my view, Love has done a sufficient job of presenting his claim to allow us to reach the merits and reverse,” Hamilton wrote, noting Love was a pro se prisoner up against a state government that “acted without precedent to prolong his imprisonment by more than fifteen years outside of court processes.”
“Facing that legal peril, Love had no access to counsel and could not confront witnesses against him. He had no access to state courts for protection of his rights,” the dissent wrote. “Under these circumstances, Tony Love should no more be held to strict adherence to procedural requirements for asserting his constitutional rights here than Clarence Earl Gideon, who was sentenced to (only) five years after having to defend himself without counsel in his trial. Gideon v. Wainwright, 372 U.S. 335 (1963).”
Responding to the dissent, Kirsch opined that the two Supreme Court decisions cited by Hamilton were different from the issues Love raised in the district court.
“Nothing in Love’s filings put the district court on notice that Love was seeking greater procedural due process protections than required by Wolff or Hill based on the severity of his sanction,” Kirsch wrote.
Likewise, in a footnote to the majority decision, Brennan wrote, “(T)he amount of good time credit vacated means Wolff and Hill do not control what procedure was due. But those cases precisely define the procedural protections for an inmate, such as Love, who faces loss of good time credit in a prison disciplinary proceeding. … Neither Wolff nor Hill state that those rules change depending on the magnitude of good time credit lost. And, as the dissent acknowledges, neither case confines itself to its facts. Given all this, Wolff and Hill establish the procedural protections the Department owed Love.”
The case is Tony Love v. Frank Vanihel, Warden, 21-2406.
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