Paul Eichwedel v. Brad Curry

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1031

P AUL N. E ICHWEDEL,

Petitioner-Appellant,

v.

N EDRA C HANDLER, Warden,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Western Division.

No. 3:08-cv-50077—Philip G. Reinhard, Judge.

A RGUED S EPTEMBER 29, 2011—D ECIDED A UGUST 29, 2012

Before R IPPLE, M ANION and SYKES, Circuit Judges.

R IPPLE, Circuit Judge. Paul Eichwedel is an inmate in

the Dixon Correctional Center (“DCC”), a prison operated

by the Illinois Department of Corrections (“IDOC”)

in Dixon, Illinois. During the course of unrelated civil

litigation in federal court against various IDOC officials,

Mr. Eichwedel, who was proceeding pro se, filed two

motions for sanctions that the district court denied as

“frivolous.” Thereafter, the State sought to revoke some

2 No. 09-1031

of Mr. Eichwedel’s good-conduct credits under a provi-

sion of Illinois law that provides for penalties for pris-

oners who file frivolous motions in litigation against the

State. See 730 ILCS 5/3-6-3(d). After the State revoked

six months of Mr. Eichwedel’s good-conduct credits,

he challenged the revocation in state court; the state

trial court denied relief, and the Appellate Court of

Illinois concluded that it lacked jurisdiction to hear

Mr. Eichwedel’s appeal because of an error attributable

to Mr. Eichwedel in filing his appeal.

After unsuccessfully seeking relief in state court for a

second time, Mr. Eichwedel filed this petition for a writ

of habeas corpus in the United States District Court for

the Northern District of Illinois under 28 U.S.C. § 2254.

The district court concluded that the Supreme Court

never has recognized a First Amendment right to

file frivolous motions and that the revocation of

Mr. Eichwedel’s good-conduct credits was supported by

“some evidence in the record.” See Superintendent, Massa-

chusetts Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985).

The district court addressed several other issues as

well, but Mr. Eichwedel appeals only those two conclu-

sions.

The district court correctly disposed of the right-of-

access claim. Because Mr. Eichwedel’s sufficiency of the

evidence claim turns on an unresolved question of state

law, specifically, the interpretation of 730 ILCS 5/3-6-3(d),

and because that question is likely to reoccur frequently

and affects the administration of justice in both

the state and federal courts, we respectfully seek the

No. 09-1031 3

assistance of the Supreme Court of Illinois by certifying

this controlling question of law.

I

BACKGROUND

A. Facts

1.

On February 12, 2001, Mr. Eichwedel, proceeding in

forma pauperis, brought a pro se civil rights action

under 42 U.S.C. § 1983 in the United States District

Court for the Central District of Illinois against twenty-

three IDOC officials. Several months later, the defendants

moved to dismiss Mr. Eichwedel’s complaint for failure

to state a claim upon which relief could be granted.

Mr. Eichwedel, however, believed that, because

the court had not dismissed his complaint under the

screening provisions of the Prison Litigation Reform

Act, the district court already had concluded that his

complaint stated a claim upon which relief could be

granted. See 28 U.S.C. § 1915A. Mr. Eichwedel arrived

at this conclusion after reviewing a “MEMORANDUM

TO ALL INMATE LITIGANTS RE: PRISON LITIGA-

TION REFORM ACT,” 1 which had been prepared by the

chief judge of the federal district and which had been

posted in the DCC library. This memorandum instructed

that “federal Courts must deny leave to proceed in forma

1

Pet’r App. at 51; accord R.1 at 16.

4 No. 09-1031

pauperis if the complaint fails to state a claim upon

which relief may be granted.” 2 After reading this memo-

randum, Mr. Eichwedel concluded that the district

court must have determined earlier that his complaint

stated a claim upon which relief could be granted

because he had been allowed to proceed in forma

pauperis. Therefore, on September 4, 2001, Mr. Eichwedel

filed a motion to sanction the defendants and their

attorney under Rule 11 of the Federal Rules of Civil

Procedure, asserting that their motion to dismiss was

frivolous. Mr. Eichwedel filed a second motion for sanc-

tions on September 22, 2001, in which he asserted that

the defendants had mischaracterized the facts and the

law in their response to his first motion for sanctions.

The district court denied Mr. Eichwedel’s first motion

for sanctions “as frivolous” on October 9, 2001, stating:

The plaintiff essentially argues that the defen-

dants should be sanctioned because this

court’s granting of in forma pauperis status to the

plaintiff amounts to a favorable screening under

28 U.S.C. § 1915A. This argument is frivolous. The

court has not yet conducted a merit review of

the plaintiff’s complaint under 28 U.S.C. § 1915A.

Such a review may be conducted before dock-

eting, “if feasible,” or “as soon as practicable after

docketing.” 28 U.S.C. § 1915A(a). Given the

court’s heavy caseload, a merit review of this case

will not likely be practicable until the court rules

2

Pet’r App. at 53; accord R.1 at 13.

No. 09-1031 5

on the defendants’ motion to dismiss. The fact

that the plaintiff has been granted leave to

proceed in forma pauperis and the defendants

have been served means nothing with regard to

the merit of the plaintiff’s claims.[ 3 ]

The district court denied Mr. Eichwedel’s second motion

for sanctions “as frivolous” by minute entry on October 29,

2001.4

On October 23, 2001, Mr. Eichwedel filed a motion in

the district court to alter or amend its ruling on his first

motion for sanctions. The court denied the motion on

November 8, 2001. It reasoned:

The plaintiff maintains that he had reasonable

grounds, albeit mistaken, to file his motion for

sanctions, making it non-frivolous. The court does

not doubt that the plaintiff believed he had

grounds for his motion, but his subjective beliefs

do not determine whether his motion was legally

frivolous. A filing is legally frivolous if it “lacks

an arguable basis either in law or in fact.” Neitzke

v. Williams, 490 U.S. 319, 325 (1989). Finding

that the plaintiff’s motions for sanctions were

frivolous has no bearing on the ultimate merit of

the plaintiff’s claims in this case.[ 5 ]

3

R.7-5.

4

R.7-6.

5

R.7-7 (emphasis in original).

6 No. 09-1031

Certain of Mr. Eichwedel’s claims ultimately survived

the defendants’ motion to dismiss, and the case subse-

quently was settled.

2.

On November 1, 2001, IDOC issued two disciplinary

reports against Mr. Eichwedel, which alleged that each

of Mr. Eichwedel’s motions for sanctions constituted a

separate violation of 730 ILCS 5/3-6-3(d). Simply put,

that statute authorizes IDOC to revoke up to 180 days of

a prisoner’s good-conduct credit if, during the course

of litigation brought against the prison, “the court

makes a specific finding that a pleading, motion, or

other paper filed by the prisoner is frivolous.” 6 On

6

At the time that the Prisoner Review Board revoked

Mr. Eichwedel’s good-conduct credits, the statute provided

in pertinent part:

If a lawsuit is filed by a prisoner in an Illinois or federal

court against the State, the Department of Corrections,

or the Prisoner Review Board, or against any of their

officers or employees, and the court makes a specific

finding that a pleading, motion, or other paper filed by

the prisoner is frivolous, the Department of Corrections

shall conduct a hearing to revoke up to 180 days of

good conduct credit by bringing charges against the

prisoner sought to be deprived of the good conduct

credits before the Prisoner Review Board as provided

in subparagraph (a)(8) of Section 3-3-2 of this Code. If

(continued...)

No. 09-1031 7

6

(...continued)

the prisoner has not accumulated 180 days of good

conduct credit at the time of the finding, then the

Prisoner Review Board may revoke all good conduct

credit accumulated by the prisoner.

For purposes of this subsection (d):

(1) “Frivolous” means that a pleading, motion, or other

filing which purports to be a legal document filed by

a prisoner in his or her lawsuit meets any or all of the

following criteria:

(A) it lacks an arguable basis either in law or

in fact;

(B) it is being presented for any improper

purpose, such as to harass or to cause unneces-

sary delay or needless increase in the cost of

litigation;

(C) the claims, defenses, and other legal con-

tentions therein are not warranted by existing

law or by a nonfrivolous argument for

the extension, modification, or reversal of

existing law or the establishment of new law;

(D) the allegations and other factual conten-

tions do not have evidentiary support or, if

specifically so identified, are not likely to have

evidentiary support after a reasonable oppor-

tunity for further investigation or discovery; or

(E) the denials of factual contentions are not

warranted on the evidence, or if specifically so

identified, are not reasonably based on a lack

(continued...)

8 No. 09-1031

November 4, 2001, Mr. Eichwedel sent a letter to the

district court, inquiring as to whether the court intended

its use of the word “frivolous” to be the same as the

definition of “frivolous” set forth in 730 ILCS 5/3-6-3(d).

The Adjustment Committee held a hearing regarding

these disciplinary reports on November 14, 2001. The

only witnesses were Mr. Eichwedel and Carolyn Zee, a

prison librarian. According to the Adjustment Com-

mittee’s Final Summary Reports, Zee testified that she

had posted Judge Mihm’s memorandum about the Prison

Litigation Reform Act in the prison library. The Final

Summary Reports also state that Mr. Eichwedel testified

that “he relied on a memorandum posted on [sic] July

6

(...continued)

of information or belief.

730 ILCS 5/3-6-3(d). To invoke this statute, 730 ILCS 5/3-3-2(a)(8)

provided that the Prisoner Review Board shall

hear by at least one member and, through a panel of at

least 3 members, decide cases brought by the Depart-

ment of Corrections against a prisoner in the custody of

the Department for court dismissal of a frivolous

lawsuit pursuant to Section 3-6-3(d) of this Code in

which the Department seeks to revoke up to 180 days of

good conduct credit, and if the prisoner has not accu-

mulated 180 days of good conduct credit at the time of

the dismissal, then all good conduct credit accumulated

by the prisoner shall be revoked[.]

A later amendment changed each occurrence of “good conduct”

in these statutes to “sentence.” This change is irrelevant to our

analysis, and we therefore do not consider it further.

No. 09-1031 9

of 1996 by Chief U.S. District Judge Michael Mihm

entitled: Memorandum to all Inmate Litigants Re; [sic]

Prison Litigation Reform Act” in filing his motions for

sanctions.7 Mr. Eichwedel also noted that the district court

did not sanction him for filing these motions. The Final

Summary Reports further provide that Mr. Eichwedel

sought the testimony of the district judge who had em-

ployed the word “frivolous” in denying Mr. Eichwedel’s

motions for sanctions. The committee did not allow

Mr. Eichwedel to call Judge Baker to testify because

the “[t]estimony would be cumulative.” 8

Following this hearing, the Adjustment Committee

found that each of Mr. Eichwedel’s motions for sanctions

constituted a violation of 730 ILCS 5/3-6-3(d). The Com-

mittee’s stated basis for finding that the first motion

for sanctions was a violation of this statute was:

7

R.7-10 at 1; see also R.7-9 at 1.

8

R.7-10 at 1; R.7-9 at 1. It may be that Mr. Eichwedel did not

seek to have Judge Baker testify, but rather to have the ques-

tions that he sent to Judge Baker admitted as evidence. Pet’r

Br. 7. However, the Adjustment Committee’s Final Summary

Reports list “BAKER, JUDGE HAROLD” as a witness that

was “[r]equsted [b]y [the] [i]nmate,” but whose “[t]estimony

would be cumulative.” R.7-10 at 1; R.7-9 at 1. This apparent

discrepancy is not material to the issues before us, so we do

not attempt to resolve it. Nor do we suggest that Judge Baker

could have been compelled to testify in such a proceeding.

Cf. United States v. Morgan, 313 U.S. 409, 422 (1941) (“Such

an examination of a judge would be destructive of judicial

responsibility.”).

10 No. 09-1031

Evidence in [the disciplinary report 9 ] that inmate is

in violation of 730 ILCS 5/3-6-3(d) as Judge Harold A.

Baker of the United States District Court for the

Central District of Illinois has denied motion 01-CV-

3044 filed by above named inmate as frivolous and

the physical evidence of the order issued by Judge

Baker the committee finds him guilty.[1 0 ]

The Committee’s stated basis for finding that the second

motion for sanctions was a violation of the statute

was substantially the same, relying on “the physical

evidence of the minute entry by Judge Baker.” 1 1 Based

on these findings, the Adjustment Committee recom-

mended that six months of Mr. Eichwedel’s good-conduct

credit be revoked: two months for his first motion

for sanctions and four months for the second. The

Prisoner Review Board approved these recommenda-

tions on appeal.

On January 23, 2002, the district court took up

Mr. Eichwedel’s November 4 letter requesting that the

court clarify its findings of frivolousness, which the

court denominated “as a motion to reconsider the court’s

description of the plaintiff’s motions for sanctions as

9

The disciplinary reports contained no additional informa-

tion about Mr. Eichwedel’s alleged violations. Each is based

on a prison employee’s review of the same orders cited by

the Adjustment Committee.

10

R.7-10 at 1.

11

R.7-9 at 1. The Final Summary Reports make no mention of

the district court’s order from November 8, 2001.

No. 09-1031 11

frivolous.” 12 “The court s[tood] by its use of the word

frivolous to describe the motions, because they had no

basis in law or fact, as explained in the October 9, 2001

order.”13 It continued:

As to the revocation of the plaintiff’s good

time credit under 730 ILCS 5/3-6-3(d), the court

has made no finding its characterization of the

plaintiff’s motions as frivolous means the same as

the term frivolous under 730 ILCS 5/3-6-3(d). The

court cannot control the defendants’ response to

the court’s use of the word frivolous, and the

plaintiff cannot challenge the application of 730

ILCS 5/3-6-3(d) to him in these proceedings.[1 4 ]

B. State Court Proceedings

After exhausting his administrative appeals of the

disciplinary action, Mr. Eichwedel filed a pro se com-

plaint in Illinois state court on August 19, 2002, seeking

a writ of mandamus, declaratory judgment and a writ

of certiorari to restore his good-conduct credits based

on alleged violations of state law, denials of due process

and violations of the First Amendment, including

the right of access to the courts. As relevant here,

Mr. Eichwedel asserted that 730 ILCS 5/3-6-3(d) denies

12

R.7-8 at 1.

13

Id. (citation omitted).

14

Id. at 1-2.

12 No. 09-1031

prisoners their right of access to the courts because, in

his view, the average prisoner will be unwilling to risk

the loss of good-conduct credits and therefore will

refrain from bringing actions subject to the statute. He

also contended that the Adjustment Committee had

before it no evidence that he had violated 730 ILCS 5/3-6-

3(d) because that statute may only be invoked where

there is a “specific finding” by the court that a motion is

“frivolous,” which is a defined term. Because the Ad-

justment Committee considered only the orders of

October 9 and October 29, which used the word “frivo-

lous” without invoking any particular standard,

Mr. Eichwedel asserted that the Adjustment Committee’s

finding of guilt was predicated solely upon the Com-

mittee’s interpretation of those orders. Mr. Eichwedel also

invited to the state trial court’s attention the January 23

order to show that the district court expressly had de-

clined to invoke 730 ILCS 5/3-6-3(d).

The state trial court dismissed his complaint. It noted

that “plaintiff wishes to retry issues already ruled upon

by Judge Baker” and reasoned that Mr. Eichwedel had

not established a right to the relief he sought. 1 5 It

further stated:

Statutes bear a strong presumption of constitu-

tionality. These statutes clearly define their terms

and lay out the procedure and penalties which

are available to the Department of Corrections.

15

R.7-21 at 3.

No. 09-1031 13

These statutes are not unconstitutionally vague

or broad.[16 ]

The state trial court delivered this opinion on March 10,

2003, and instructed the defendants’ counsel to prepare

an appropriate order. That order, which dismissed

all claims against all defendants, was entered on April 17,

2003.

Mr. Eichwedel filed his notice of appeal on April 15,

2003, two days before the state trial court entered its

final order. Upon realizing that this sequence might

pose problems for his appeal, Mr. Eichwedel filed a

motion in the state trial court seeking either entry of

the “dismissal order nunc pro tunc” or clarification as to

whether he must file another notice of appeal in order

to preserve his right to appeal.1 7 The state trial court

dismissed the motion, stating: “The Court believes

that plaintiff’s appeal has been placed on the Appellate

Court’s calendar. The plaintiff’s rights have not been

prejudiced in any manner.” 1 8

Despite these assurances by the trial court, the Appel-

late Court of Illinois dismissed Mr. Eichwedel’s appeal.

Although it “agree[d] with [Mr.] Eichwedel that the

trial court [misled] him about the jurisdictional prere-

16

Id.

17

R.7-22 at 1.

18

R.7-23.

14 No. 09-1031

quisites to an appeal,” 1 9 the Appellate Court concluded

that it lacked jurisdiction because Mr. Eichwedel’s notice

of appeal was filed before the final judgment

was entered. The Supreme Court of Illinois denied

Mr. Eichwedel’s petition for leave to appeal. Mr. Eichwedel

then attempted to pursue these claims for a second time

by filing another state court complaint, which was dis-

missed on the ground of res judicata. That judgment

was affirmed by the Appellate Court of Illinois, and the

Supreme Court of Illinois denied Mr. Eichwedel’s peti-

tion for leave to appeal.

C. Petition for Writ of Habeas Corpus

Mr. Eichwedel filed a pro se petition for a writ of

habeas corpus under 28 U.S.C. § 2254 in the United

States District Court for the Northern District of Illinois

on May 5, 2008. In his petition, Mr. Eichwedel asserted:

(1) that 730 ILCS 5/3-6-3(d) is unconstitutionally vague

and overbroad in violation of the First and Fourteenth

Amendments; (2) that, as applied to him, 730 ILCS

5/3-6-3(d) and 730 ILCS 5/3-3-2(a)(8) violate the First

and Fourteenth Amendments; and (3) that the revoca-

tion of his good-conduct credits deprived him of

liberty without due process in violation of the Fourteenth

Amendment.

The district court determined that the state trial

court’s opinion was the relevant opinion on habeas re-

19

R.7-4 at 6.

No. 09-1031 15

view because it was the last state court to address

Mr. Eichwedel’s claims on the merits. Although it noted

that the state trial court’s opinion “was terse at best,” 2 0

and that “[i]t is hard to imagine a more threadbare analy-

sis,” 21 the district court concluded that the state

trial court’s resolution of the vagueness, overbreadth and

as-applied challenges was neither contrary to, nor an

unreasonable application of, clearly established Federal

law as determined by the Supreme Court of the United

States. See 28 U.S.C. § 2254(d)(1).

The district court then turned to Mr. Eichwedel’s due

process claims. Mr. Eichwedel’s habeas petition asserted

that IDOC’s revocation of his good-conduct credits vio-

lated his right to due process in various respects: by

not giving him fair notice of an internal IDOC rule

change; by failing to follow IDOC’s internal hearing

procedures; and by revoking his good-conduct credits

without some evidence in the record that he had

violated 730 ILCS 5/3-6-3(d). He also asserted that his

right to due process and equal protection were violated

because the courts of Illinois had treated a similarly

situated inmate differently in a previous case. With

respect to Mr. Eichwedel’s due process claims premised

upon IDOC’s failure to give him fair notice of the rule

change and upon IDOC’s failure to follow its own

hearing procedures, the State asserted that he failed to

present properly these claims during his appeal of the

20

R.11 at 3.

21

Id.

16 No. 09-1031

state trial court’s order. The State addressed the “some

evidence” challenge on its merits. It also addressed

Mr. Eichwedel’s hybrid equal protection and due

process challenge on its merits in the interest of efficiency,

although the State maintained that the claim was unex-

hausted. The State did not assert that Mr. Eichwedel’s

claims were procedurally defaulted in their entirety

based on his failure to appeal properly the state trial

court’s determination. On appeal, the State has repre-

sented that it “declined to assert the default in the

district court” because “the trial court’s advice to [Mr.

Eichwedel] . . . might arguably amount to cause to

excuse the default of the claims in this appeal.” 2 2

The district court determined that Mr. Eichwedel

had procedurally defaulted his due process claims pre-

mised upon IDOC’s failure to give him fair notice of a

rule change and to follow its own hearing procedures.

Mr. Eichwedel’s hybrid due process and equal protec-

tion claim was rejected because the district court deter-

mined that the circumstances surrounding the revoca-

tion of Mr. Eichwedel’s good-conduct credit were

factually distinguishable from those of the inmate who

Mr. Eichwedel had alleged was similarly situated. The

district court also rejected, on the merits, Mr. Eichwedel’s

assertion that his good-conduct credits had been

revoked without “some evidence in the record.” It con-

cluded that the two orders in which Judge Baker

denied Mr. Eichwedel’s motions for sanctions as

22

Resp’t Br. 4 n.4.

No. 09-1031 17

frivolous were “ample evidence . . . that petitioner had in

fact violated § 5/3-6-3(d).” 2 3

Mr. Eichwedel appeals the district court’s judgment.

We have appointed counsel to represent him before

this court.

II

DISCUSSION

On appeal, Mr. Eichwedel asserts that 730 ILCS 5/3-6-3(d)

deprives him of his right of access to the courts and that

IDOC denied him due process by revoking his good-

conduct credits by reference to a record that did not

contain “some evidence” of his guilt. Before we may

proceed, we must consider whether Mr. Eichwedel

has preserved properly these issues and whether our

review is constrained by the Antiterrorism and Effective

Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d).

A. Procedural Default

We first consider whether Mr. Eichwedel has procedur-

ally defaulted his claims. See Smith v. McKee, 598 F.3d

374, 382 (7th Cir. 2010). In a footnote in the statement of

the case of its appellate brief, the State notes that “peti-

tioner’s present claims are procedurally defaulted

because the appellate court declined to reach the merits

23

R.11 at 5.

18 No. 09-1031

of petitioner’s claims based on an independent and ade-

quate state law ground.” 2 4 It continues: “Because peti-

tioner did not file another notice of appeal, and the first

notice was premature, the appellate court dismissed

petitioner’s appeal for lack of jurisdiction.” 2 5 The State

further explains, however, that, “because of the trial

court’s advice to [Mr. Eichwedel], which might arguably

amount to cause to excuse the default of the claims in

this appeal, [the State] declined to assert the default in

the district court.” 2 6 The State is correct in concluding

that Mr. Eichwedel procedurally defaulted the claims

now before us. “[W]hen a state refuses to adjudicate

a petitioner’s federal claims because they were not

raised in accord with the state’s procedural rules, that

will normally qualify as an independent and adequate

state ground for denying federal review.” Woods v.

Schwartz, 589 F.3d 368, 373 (7th Cir. 2009).

However, “[t]he procedural default doctrine does not

impose an absolute bar to federal relief.” Perruquet v.

Briley, 390 F.3d 505, 514 (7th Cir. 2004). “[I]t is an affirma-

tive defense that the State is obligated to raise and pre-

serve, and consequently one that it can waive.” Id. at 515.

The State therefore may forfeit this affirmative defense

by not asserting it before the district court. Id. at 517.

There is no question that the State has forfeited the proce-

dural default defense by not raising it before the

24

Resp’t Br. 4 n.4.

25

Id.

26

Id.

No. 09-1031 19

district court. See id. Furthermore, it also has waived

this defense, as evidenced by its various litigation deci-

sions in the district court and on appeal. First, the State’s

decision to address the merits of Mr. Eichwedel’s due

process claim during the district court proceedings, while

arguing that Mr. Eichwedel had procedurally defaulted

other claims not at issue here, is evidence of the State’s

intent to waive this defense, at least as to that claim. See id.

at 516-17. Furthermore, the State’s discussion of the

procedural default issue in this court is limited to one

footnote. See Long v. Teachers’ Ret. Sys. of Illinois, 585

F.3d 344, 349 (7th Cir. 2009) (“A party may waive an

argument by disputing a district court’s ruling in a foot-

note or a one-sentence assertion that lacks citation to

record evidence.”). That this footnote is in the State’s

“Statement of the Case” and not its “Argument” is further

evidence of waiver. See Fed. R. App. P. 28(a)(9)(A), (b)

(requiring appellee’s brief to contain the appellee’s

“contentions and the reasons for them”). 2 7 Most signifi-

cantly, the State concedes in its brief that it deliberately

27

See also Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.

1996) (“[A]n issue referred to in the appellant’s statement of

the case but not discussed in the body of the opening brief is

deemed waived.”); cf. Wehrs v. Wells, No. 11-3369, ___ F.3d ___,

2012 WL 3194243, at *4 n.2 (Aug. 8, 2012) (deeming an argu-

ment waived where it was raised in one sentence in the sum-

mary of argument and once again in the conclusion of the

brief); Bob Willow Motors, Inc. v. Gen. Motors Corp., 872 F.2d

788, 795 (7th Cir. 1989) (concluding that an argument that

was raised summarily and only in the text of the Summary

of Argument was waived).

20 No. 09-1031

chose not to raise this procedural default defense in the

district court proceedings. See Perruquet, 390 F.3d at 516

(explaining that a party waives a procedural default

defense by “intentionally relinquishing its right to assert

that defense”); see also Broaddus v. Shields, 665 F.3d 846,

853 (7th Cir. 2011) (relying on party’s concession that

he did not raise an argument in the district court in

concluding that the party waived the argument); cf.

United States v. Jaimes-Jaimes, 406 F.3d 845, 848 (7th Cir.

2005) (explaining that a party’s tactical decision not to

raise an argument before the district court constitutes

waiver of that argument). When these litigation deci-

sions are considered in the aggregate, it is clear that

the State has waived its procedural default defense to the

claims Mr. Eichwedel now raises on appeal.

The State does not contend that Mr. Eichwedel has failed

to exhaust the remedies available to him in the courts of

Illinois. AEDPA, however, provides that “[a] State shall

not be deemed to have waived the exhaustion require-

ment or be estopped from reliance upon the require-

ment unless the State, through counsel, expressly waives

the requirement.” 28 U.S.C. § 2254(b)(3). Some courts

have held that § 2254(b)(3) extends to certain procedural

defaults, while others have declined to do so.2 8 We

28

Compare Franklin v. Johnson, 290 F.3d 1223, 1231 (9th Cir. 2002)

(concluding “that 28 U.S.C. § 2254(b)(3)’s reference to exhaus-

tion has no bearing on procedural default defenses”), and

Jackson v. Johnson, 194 F.3d 641, 651-52 & n.35 (5th Cir. 1999)

(distinguishing procedural default from exhaustion and declin-

(continued...)

No. 09-1031 21

have not yet taken a position on this question,2 9 and

we need not do so in this case. Because we reject the

merits of Mr. Eichwedel’s right-of-access claim, we need

not consider whether § 2254(b)(3) applies to his pro-

cedural default of that claim.3 0 Furthermore, because

the State represented to the district court that the “some

evidence” challenge “was properly exhausted during

mandamus proceedings in state court,” 3 1 it has expressly

waived any independent exhaustion argument, 3 2 as well

as any exhaustion argument included within the doc-

28

(...continued)

ing to apply § 2254(b)(3) to a procedural default), with McNair

v. Campbell, 416 F.3d 1291, 1305 (11th Cir. 2005) (“Because

§ 2254(b)(3) provides that the State can waive McNair’s

failure to properly exhaust his claim only by expressly doing

so, it logically follows that the resulting procedural bar, which

arises from and is dependent upon the failure to properly

exhaust, can only be waived expressly.” (citing Franklin, 290

F.3d at 1238 (O’Scannlain, J., concurring in part and con-

curring in the judgment))).

29

See Cheeks v. Gaetz, 571 F.3d 680, 686 n.1 (7th Cir. 2009);

Perruquet v. Briley, 390 F.3d 505, 515-16 (7th Cir. 2004).

30

See 28 U.S.C. § 2254(b)(2) (“An application for a writ of

habeas corpus may be denied on the merits, notwithstanding

the failure of the applicant to exhaust the remedies available

in the courts of the State.”).

31

R.7 at 26.

32

See Thomas v. Indiana, 910 F.2d 1413, 1415 (7th Cir. 1990)

(holding, pre-AEDPA, that a State “expressly waived” an

argument during habeas proceedings by “expressly con-

ced[ing]” the point in its brief (emphasis omitted)).

22 No. 09-1031

trine of procedural default. As our sister circuits have

held, a State expressly waives exhaustion for purposes

of § 2254(b)(3) where, as here, it concedes clearly and

expressly that the claim has been exhausted, regardless

of whether that concession is correct.3 3

B. Applicable Standards

Having determined that the procedural default noted

by the State is no obstacle to the claims raised in this

appeal, we now turn to the applicable standards of

review. If a “claim . . . was adjudicated on the merits in

State court proceedings,” our review of the state court’s

judgment is limited by AEDPA. 28 U.S.C. § 2254(d); see

also Harrington v. Richter, 131 S. Ct. 770, 780 (2011).

AEDPA dictates that a federal court may not issue the

33

See Cornell v. Kirkpatrick, 665 F.3d 369, 376 (2d Cir. 2011); Carty

v. Thaler, 583 F.3d 244, 256-57 (5th Cir. 2009) (citing Bledsue v.

Johnson, 188 F.3d 250, 254 (5th Cir. 1999)); Sharrieff v. Cathel,

574 F.3d 225, 228-29 (3d Cir. 2009); Pike v. Guarino, 492 F.3d 61,

71-72 (1st Cir. 2007); Kerns v. Ault, 408 F.3d 447, 449 n.3 (8th

Cir. 2005); Gonzales v. McKune, 279 F.3d 922, 926 & n.8 (10th Cir.

2002) (en banc); Dorsey v. Chapman, 262 F.3d 1181, 1187 (11th

Cir. 2001); see also D’Ambrosio v. Bagley, 527 F.3d 489, 496-97 (6th

Cir. 2008) (holding that State’s attorney’s conduct during

district court proceedings was sufficient to expressly waive

exhaustion under § 2254(b)(3)); id. at 500 (Boggs, C.J., dissenting)

(stating that the majority was “quite correct that no ‘magic

words’ are needed” for there to be an express waiver under

§ 2254(b)(3)).

No. 09-1031 23

writ unless the state court adjudication “resulted in a

decision that was contrary to, or involved an unrea-

sonable application of, clearly established Federal law,

as determined by the Supreme Court of the United

States.” 28 U.S.C. § 2254(d)(1). “The relevant decision

for purposes of our assessment under AEDPA is the

decision of the last state court to rule on the merits of

the petitioner’s claim[] . . . .” Morgan v. Hardy, 662 F.3d 790,

797 (7th Cir. 2011). If, however, a claim was not adjudi-

cated on the merits by a state court, we must “dispose of

the matter as law and justice require,” 28 U.S.C. § 2243,

which is essentially de novo review, Morales v. Johnson,

659 F.3d 588, 599 (7th Cir. 2011). In any event, our

review of the district court’s denial of habeas relief is

de novo. See Morgan, 662 F.3d at 797.

The parties agree that the state trial court adjudicated

Mr. Eichwedel’s habeas claims on the merits,3 4 and we

see no reason to disagree with that assessment. Section

“2254(d) does not require a state court to give reasons

before its decision can be deemed to have been ‘adjudi-

cated on the merits.’ ” Richter, 131 S. Ct. at 785. “When a

federal claim has been presented to a state court and

the state court has denied relief, it may be presumed

that the state court adjudicated the claim on the merits

34

Pet’r Br. 10 n.7 (“The last state court decision to address

the claims on the merits is the trial court’s decision in

Eichwedel’s first mandamus action.”); Resp’t Br. 17 (“The

last state court to rule on the merits of petitioner’s claims

was the state trial court in petitioner’s first round of

mandamus review.”).

24 No. 09-1031

in the absence of any indication or state-law procedural

principles to the contrary.” Id. at 784-85. This “presumption

may be overcome when there is reason to think some

other explanation for the state court’s decision is more

likely.” Id. at 785. For instance, “[w]here there has been

one reasoned state judgment rejecting a federal claim,

later unexplained orders upholding that judgment or

rejecting the same claim rest upon the same ground.”

Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991), cited with

approval in Richter, 131 S. Ct. at 785. When the presumption

does apply, AEDPA requires us to “determine what

arguments or theories . . . could have supported[] the

state court’s decision.” Richter, 131 S. Ct. at 786. Next, we

“must ask whether it is possible fairminded jurists

could disagree that those arguments or theories are

inconsistent with the holding in a prior decision of th[e

Supreme] Court.” Id.; see also Cullen v. Pinholster, 131

S. Ct. 1388, 1403 (2011) (describing this review as a

“high threshold”).

Although the state trial court’s opinion “was terse at

best,” 35 it indicated that the court was “fully advised in the

premises” 3 6 and that Mr. Eichwedel did not establish any

constitutional violation. The state trial court dismissed Mr.

Eichwedel’s action under 735 ILCS 5/2-619, which the

Illinois courts treat as a merits determination. See Rein v.

David A. Noyes & Co., 665 N.E.2d 1199, 1204 (Ill. 1996).

Therefore, Mr. Eichwedel “has failed to show that the

35

R.11 at 3.

36

R.7-21 at 3.

No. 09-1031 25

[Illinois trial court’s] decision did not involve a deter-

mination of the merits of his claim,” and “[s]ection 2254(d)

applies to his petition.” 3 7 Richter, 131 S. Ct. at 785; see

also Price v. Thurmer, 637 F.3d 831, 839 (7th Cir. 2011)

(concluding that Richter “precludes our inferring error

from the [state] court’s failure to discuss particular

pieces of evidence”).

Despite Mr. Eichwedel’s failure to perfect his appeal

in state court, we have before us a merits determination

from the state trial court for purposes of AEDPA. A claim

is “adjudicated on the merits,” as that term is used in

§ 2254(d), if there is “’a decision finally resolving the

parties’ claims, with res judicata effect, that is based on

the substance of the claim advanced, rather than on a

procedural, or other, ground.’ ” Muth v. Frank, 412 F.3d

808, 815 (7th Cir. 2005) (quoting Sellan v. Kuhlman, 261

F.3d 303, 311 (2d Cir. 2001)). In this case, the state trial

court’s dismissal of Mr. Eichwedel’s claims has claim-

preclusive effect. “It makes no difference that an appeal

was attempted but was thwarted by failure to satisfy

procedural requirements.” 18A Charles Alan Wright,

Arthur R. Miller & Edward H. Cooper, Federal Practice &

Procedure § 4433 (2d ed. 2002).3 8 If the state appellate

37

Indeed, as noted above, Mr. Eichwedel has conceded that

AEDPA applies in this case.

38

See also Thomas v. Horn, 570 F.3d 105, 116 (3d Cir. 2009)

(discussing Fahy v. Horn, 516 F.3d 169 (3d Cir. 2008), in which

the petitioner voluntarily abandoned his state court appeal,

(continued...)

26 No. 09-1031

court had heard the appeal and decided to affirm the

trial court based on a procedural ground, such as a

waiver or forfeiture of the claim, then the state court’s

determination would not be “on the merits” for purposes

of § 2254(d). See Liegakos v. Cooke, 106 F.3d 1381, 1385 (7th

Cir. 1997).39 Because the state appellate court did not hear

the case at all, however, the state trial court’s opinion

retains its claim-preclusive effect and is therefore

entitled to deference under § 2254(d). We therefore turn

to the merits.

C. Right of Access to the Courts

Mr. Eichwedel asserts that 730 ILCS 5/3-6-3(d) “directly

contradict[s] clear Supreme Court precedent estab-

lishing the right of prisoners to pursue meritorious civil

rights actions in the courts.” Pet’r Br. 11 (citing Lewis v.

Casey, 518 U.S. 343, 351 (1996), and Bounds v. Smith, 430

U.S. 817, 821 (1977)). However, an inmate may prevail

on a right-of-access claim only if the official actions at

issue “hindered his efforts to pursue a legal claim.” Lewis,

518 U.S. at 351. Indeed, “the very point of recognizing

38

(...continued)

and concluding that Fahy properly applied § 2254(d) because

“the lower court’s decision on the merits was the decision

that finally resolved the claims”).

39

See also Thomas, 570 F.3d at 115 (noting that an appellate

court’s rejection of a petitioner’s claims on procedural grounds

“stripped the [trial] court’s substantive determination . . .

of preclusive effect”).

No. 09-1031 27

any access claim is to provide some effective vindica-

tion for a separate and distinct right to seek judicial

relief for some wrong.” Christopher v. Harbury, 536 U.S. 403,

414-15 (2002).

The record before us establishes that the underlying

action was resolved by settlement on terms favorable to

Mr. Eichwedel.40 Mr. Eichwedel does not claim that his

discipline under 730 ILCS 5/3-6-3(d) “hindered his efforts

to pursue a legal claim” in the underlying litigation,

Lewis, 518 U.S. at 351, as would be the case, for instance,

if the discipline he received under 730 ILCS 5/3-6-3(d)

“caused the . . . inadequate settlement of a meritorious

case,” Harbury, 536 U.S. at 414.

Mr. Eichwedel does assert that 730 ILCS 5/3-6-3(d) has

a “strong chilling effect” that “impermissibly dis-

courages prisoners from seeking to pursue valid claims

by heightening the risk of filing lawsuits.” Pet’r Br. 12; see

also id. at 17 (asserting that 730 ILCS 5/3-6-3(d) “takes a

major step toward causing . . . prisoners to be shut out

of court” (alteration omitted) (internal quotation marks

omitted)). He has failed to establish, however, that the

State’s invocation of 730 ILCS 5/3-6-3(d) has interfered,

or is interfering, in any way with his pursuit of any litiga-

40

See Pet’r Br. 3; R.1 at 25; see also Pet’r Br. 2 (characterizing “the

underlying litigation []as meritorious” in presenting the issues

on appeal); R.7-14 at 12 (describing the dismissal of certain

claims in the underlying action as “a Pyrrhic victory” for

the defendants in that case); id. (referencing “the sheer magni-

tude of the . . . defendants’ defeat” in the underlying action).

28 No. 09-1031

tion. Because Mr. Eichwedel has failed to identify any

“’nonfrivolous,’ ‘arguable’ underlying claim” that 730

ILCS 5/3-6-3(d) is preventing him from bringing, this

argument fails. See Harbury, 536 U.S. at 415 (quoting

Lewis, 518 U.S. at 353 & n.3).

Moreover, Mr. Eichwedel asserts that the motions at

issue in this case resulted from “a single mistaken argu-

ment made in good faith,” which, in his view, he had

a constitutional right to file. Pet’r Br. 15. As a pre-

liminary matter, this argument does not characterize

accurately the statutory scheme. Section 5/3-6-3(d) does not

authorize punishment for “a mistaken argument”—only

for “a pleading, motion, or other paper” after a court has

made a “specific finding” that the filing is “frivolous.”

Regardless, the Supreme Court has held that the Con-

stitution does not protect a person’s right to file

frivolous lawsuits. See Bill Johnson’s Rests. v. N.L.R.B., 461

U.S. 731, 743 (1983) (“[B]aseless litigation is not im-

munized by the First Amendment right to petition.”); see

also Lewis, 518 U.S. at 353 n.3 (“Depriving someone of a

frivolous claim[] . . . deprives him of nothing at all, except

perhaps the punishment of Federal Rule of Civil

Procedure 11 sanctions.”). Mr. Eichwedel seeks to dis-

tinguish the principle announced in Bill Johnson’s Restau-

rants from the case at hand by asserting: (1) that the

principle is limited “to frivolous suits that are filed know-

ingly, or at least negligently, or that involve intentional

falsehoods”; and (2) that the principle is limited to frivo-

lous litigation and does not reach frivolous motions

filed during meritorious litigation. Pet’r Br. 15.

No. 09-1031 29

We previously have rejected Mr. Eichwedel’s first

contention.

[Bill Johnson’s Restaurants] lists “intentional false-

hoods” and “knowingly frivolous claims” merely

as two examples, and not as an exhaustive list, of

types of claims that have no protection under the

First Amendment. The Court’s subsequent discus-

sion makes clear that[] . . . claims which present

no material questions of fact or law have no First

Amendment protection.

Geske & Sons, Inc. v. N.L.R.B., 103 F.3d 1366, 1372 n.9 (7th

Cir. 1997).

As to Mr. Eichwedel’s second point, the discussion

in Bill Johnson’s Restaurants indeed was focused on frivo-

lous litigation and not frivolous motions. Mr. Eichwedel

places heavy emphasis on this point, asserting that

“punish[ing] prisoners for filing a frivolous argument

in one single motion, rather than an entire frivolous suit

or action[,] . . . . goes too far beyond the plain language

of [Bill Johnson’s Restaurants].” Pet’r Br. 15. The baseline,

in Mr. Eichwedel’s view, appears to be that the right of

access to the courts grants him a right to make any

filing, whether frivolous or not, that he subjectively

believes to be appropriate in litigation against his jailers

as long as there is some merit to that underlying litiga-

tion. He interprets Bill Johnson’s Restaurants as a

narrow exception to this broad, general rule.

According to Mr. Eichwedel, the holding in Bill

Johnson’s Restaurants—that frivolous litigation is not

constitutionally protected—supports the conclusion that

30 No. 09-1031

frivolous motions filed in pursuit of a nonfrivolous

claim are protected. AEDPA, however, limits our review

to “clearly established Federal law, as determined by

the Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1). The principle espoused by Mr. Eichwedel

is not established by Supreme Court precedents, and

“[e]xtrapolation from Supreme Court authority is not

enough to overcome the deference to state-court deci-

sion-making built into § 2254(d).” Sweeney v. Carter, 361

F.3d 327, 334 (7th Cir. 2004).

In conclusion, we note that the statute at issue does

more than vindicate the burden imposed on the judiciary

by the filing of frivolous suits on motions in state or

federal court. It provides prison officials with a tool to

curb behavior that is inimical to rehabilitative efforts

and to good order and discipline within the institu-

tion. Mr. Eichwedel has failed to establish that no

fairminded jurist could conclude that the right of

access to the courts, as it has been interpreted by the

Supreme Court of the United States, prevents a state from

punishing the behavior regulated by 730 ILCS 5/3-6-3(d).4 1

41

On appeal, Mr. Eichwedel has not argued that any prison

official invoked 730 ILCS 5/3-6-3(d) in retaliation for

Mr. Eichwedel’s bringing the underlying action. Cf. DeWalt v.

Carter, 224 F.3d 607, 618 (7th Cir. 2000) (“Prisoners have a

constitutional right of access to the courts that, by necessity,

includes the right to pursue the administrative remedies that

must be exhausted before a prisoner can seek relief in court.

Thus, a prison official may not retaliate against a prisoner

(continued...)

No. 09-1031 31

We therefore turn to Mr. Eichwedel’s due process claim.

D. The “Some Evidence” Requirement

The State of Illinois has created a statutory right to good-

conduct credit for the inmates in its prisons. See Hamilton

v. O’Leary, 976 F.2d 341, 344 (7th Cir. 1992) (citing 730 ILCS

5/3-6-3). Illinois inmates, therefore, have a liberty

interest in their good-conduct credits that entitles them

“to those minimum procedures appropriate under the

circumstances and required by the Due Process Clause

to insure that the state-created right is not arbitrarily

abrogated.” Wolff v. McDonnell, 418 U.S. 539, 557 (1974). A

revocation of good-conduct credits complies with due

process if the inmate receives:

(1) advance written notice of the disciplinary

charges; (2) an opportunity, when consistent with

institutional safety and correctional goals, to

call witnesses and present documentary evidence

in his defense; and (3) a written statement by

41

(...continued)

because that prisoner filed a grievance [or filed a lawsuit].”).

Mr. Eichwedel raised this argument in the state court, but he

no longer advances it, and it therefore is not before us.

Instead of focusing on the motives of the prison officials

who invoked 730 ILCS 5/3-6-3(d), see Spiegla v. Hull, 371 F.3d 928,

942 (7th Cir. 2004), Mr. Eichwedel now focuses on the gen-

eral effect of that statute. As we have explained, however,

Mr. Eichwedel has not demonstrated that he is entitled to

habeas relief on that theory.

32 No. 09-1031

the factfinder of the evidence relied on and the

reasons for the disciplinary action.

Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472

U.S. 445, 454 (1985) (citing Wolff, 418 U.S. at 563-67). Due

process also requires that “the findings of the prison

disciplinary board [be] supported by some evidence in

the record.” Id.

The “some evidence” standard of Hill is satisfied if

“there is any evidence in the record that could support

the conclusion reached by the disciplinary board.” Id. at

455-56. Stated differently, “[t]his standard is met if ‘there

was some evidence from which the conclusion of the

administrative tribunal could be deduced.’ ” Id. at 455

(quoting United States ex rel. Vajtauer v. Comm’r of Im-

migration, 273 U.S. 103, 106 (1927)). “Ascertaining whether

this standard is satisfied does not require examination

of the entire record, independent assessment of the credi-

bility of witnesses, or weighing of the evidence.” Id. “The

Federal Constitution does not require evidence that

logically precludes any conclusion but the one reached

by the disciplinary board.” Id. at 457. “[O]nly evidence

that was presented to the Adjustment Committee is

relevant to this analysis.” Hamilton, 976 F.2d at 346.

The Final Summary Reports indicate that Mr. Eichwedel

was charged with “Violating State or Federal Laws” and

that he was “in violation of 730 ILCS 5/3-6-3(d).” 4 2 That

statute authorizes IDOC “to revoke up to 180 days” of a

42

R.7-10 at 1; accord R.7-9 at 1.

No. 09-1031 33

prisoner’s good-conduct credit if that prisoner files

a lawsuit against the State “and the court makes a

specific finding that a pleading, motion, or other paper

filed by the prisoner is frivolous.” 730 ILCS 5/3-6-3(d). “For

purposes of this subsection . . ., ‘[f]rivolous’ means that

a pleading, motion, or other filing which purports to be

a legal document filed by a prisoner in his or her law-

suit meets any or all of [five listed] criteria[] . . . .” Id.

§ 5/3-6-3(d)(1).

To determine if there was “some evidence” that

Mr. Eichwedel violated this statute, we must ascertain

the elements of 730 ILCS 5/3-6-3(d). See Gamble v. Calbone,

375 F.3d 1021, 1027 (10th Cir. 2004).4 3 The parties

dispute whether 730 ILCS 5/3-6-3(d) may be invoked

properly where a court uses the term “frivolous” to

describe a filing but provides no indication of what

definition, if any, it is using to reach that conclusion.

Mr. Eichwedel asserts that the court must indicate that it

is using the term “frivolous” in the manner contemplated

by the statute before a petitioner’s good-conduct credit

may be revoked. See Pet’r Br. 22.4 4 The State responds

43

Superceded by state statute on other grounds as recognized in

Magar v. Parker, 490 F.3d 816, 819 (10th Cir. 2007).

44

In his state court complaint, Mr. Eichwedel argued that the

State

refused to follow the requirements mandated by 730

ILCS 5/3-6-3(d) which authorizes the IDOC to bring

charges against a prisoner for filing a frivolous motion

(continued...)

34 No. 09-1031

that “[t]he long-standing and commonly understood

meaning of a frivolous claim is one that ‘lacks an arguable

basis either in law or in fact,’ ” 4 5 that “[t]his well-estab-

lished definition is consistent with the definition of frivo-

lous in 730 ILCS 5/3-6-3(d)(1)(A)” 4 6 and that “[t]here can be

no doubt that the district court employed precisely that

definition when it found the motions frivolous.” 4 7

To resolve this dispute, we begin by looking to the

opinion of the state trial court in the matter before us. See

Bates v. McCaughtry, 934 F.2d 99, 102 (7th Cir. 1991). As

44

(...continued)

ONLY AFTER ‘the court makes a SPECIFIC FINDING

that a motion filed by the prisoner is frivolous’ . . . as

that term is defined by the statute.

R.7-14 at 42 (alterations omitted) (emphasis in original). He

asserted that “the Adjustment Committee’s finding of guilt[] . . .

was predicated solely upon ITS INTERPRETATION of

Judge Baker’s October 9, 2001 and October 29, 2001 Orders.”

Id. at 35 (emphasis in original).

45

Resp’t Br. 34 (quoting, e.g., Neitzke v. Williams, 490 U.S. 319,

325 (1989)).

46

Id. at 35. 730 ILCS 5/3-6-3(d)(1)(A) provides that a filing

is frivolous if “it lacks an arguable basis either in law or in fact.”

47

Resp’t Br. 35. The State supports this last point by citing the

order of November 8. As the State acknowledges, however, that

order was not before the prison disciplinary board at the time it

made its decision. See id. at 35; see also Hamilton v. O’Leary,

976 F.2d 341, 346 (7th Cir. 1992) (“[O]nly evidence that was

presented to the Adjustment Committee is relevant to

this analysis.”).

No. 09-1031 35

relevant here, the state trial court found the following

facts to be uncontroverted: that “[o]n October 9, 2001,

U.S. District Judge Harold Baker denied plaintiff’s

motion for sanctions as frivolous” and that “[o]n October

29, 2001, Judge Baker ruled that plaintiff’s second

motion for sanctions was frivolous.” 4 8 In the course of its

analysis, that court indicated that it would not allow

Mr. Eichwedel “to retry issues already ruled upon by

Judge Baker.” 49 Then, after stating that 730 ILCS 5/3-6-3(d)

“clearly define[s its] terms and lay[s] out the procedure

and penalties which are available to the Department of

Corrections,” the state court denied Mr. Eichwedel’s

claim on its merits. 5 0 This passage suggests that the state

trial court concluded that the district court’s use of

the term “frivolous” constituted the requisite “specific

finding[s]” of frivolousness within the meaning of 730

ILCS 5/3-6-3(d).51 To the extent that there is any doubt as

to whether the state court construed the statute in

this manner, we “must determine what arguments or

theories . . . could have supported[] the state court’s

48

R.7-21 at 2.

49

Id. at 3.

50

Id.

51

Indeed, in concluding that Mr. Eichwedel’s second state

action was barred by res judicata, the Appellate Court of Illinois

stated: “In dismissing plaintiff’s complaint, the [state trial

court] found that section 3-6-3(d) of the Code was applicable

because the federal court had specifically found that plaintiff’s

motions for sanctions were frivolous.” R.37 at 8.

36 No. 09-1031

decision” to deny Mr. Eichwedel’s petition. Richter, 131

S. Ct. at 786. In addressing a constitutional challenge to

the sufficiency of the evidence, we must assume that

the state court “engag[ed] in a two-step process: first,

it clarifie[d] the meaning of the uncertain term by

deciding what historical facts suffice or are not necessary

to establish the element, and second, it decide[d] that

the evidence at [the hearing] support[ed] an inference

that the necessary historical facts were present.” Anderson-

Bey v. Zavaras, 641 F.3d 445, 449 (10th Cir. 2011) (discuss-

ing, e.g., Bates, 934 F.2d 99).5 2

Here, the language in the operative state trial court

order, when read in light of the Richter presumption,

requires us to conclude that the state trial court did not

read 730 ILCS 5/3-6-3(d) to require any specific invoca-

tion of that statute or of any of the five definitions of

frivolousness contained therein before a prison dis-

ciplinary board may invoke the statute. Nevertheless,

we have significant doubts about the state trial court’s

apparent rendition of the elements. First, the plain lan-

52

See also Evans v. McBride, 94 F.3d 1062, 1064 (7th Cir. 1996)

(noting, in the context of a “some evidence” challenge, that “[i]t

may be hard in practice to separate evidentiary insufficiency

from a mistaken interpretation of the [state] law’s substantive

requirements”), disapproved of on other grounds by White v.

Indiana Parole Bd., 266 F.3d 759, 765-66 (7th Cir. 2001); cf. Gamble

v. Calbone, 375 F.3d 1021, 1027 (10th Cir. 2004) (determining

elements of state offense to address a “some evidence” chal-

lenge to the revocation of good-conduct credits where no

state court had done so in the matter before the court).

No. 09-1031 37

guage of the statute requires that the court make a “specific

finding that a [filing] is frivolous.” 730 ILCS 5/3-6-3(d).

Furthermore, the statute provides:

“Frivolous” means that a pleading, motion, or other

filing which purports to be a legal document filed by a

prisoner in his or her lawsuit meets any or all of

the following criteria:

(A) it lacks an arguable basis either in law or

in fact;

(B) it is being presented for any improper

purpose, such as to harass or to cause unneces-

sary delay or needless increase in the cost

of litigation;

(C) the claims, defenses, and other legal con-

tentions therein are not warranted by existing

law or by a nonfrivolous argument for the

extension, modification, or reversal of existing

law or the establishment of new law;

(D) the allegations and other factual conten-

tions do not have evidentiary support or, if

specifically so identified, are not likely to

have evidentiary support after a reasonable op-

portunity for further investigation or discov-

ery; or

(E) the denials of factual contentions are not

warranted on the evidence, or if specifically

so identified, are not reasonably based on a

lack of information or belief.

38 No. 09-1031

730 ILCS 5/3-6-3(d)(1). Therefore, the statute defines

frivolous to mean five particular things and explicitly

provides that a court must make a specific finding that one

of those definitions has been satisfied before IDOC may

seek to revoke good-conduct credit under 730 ILCS 5/3-6-

3(d). See Duncan v. Walker, 533 U.S. 167, 174 (2001) (“It is

our duty to give effect, if possible, to every clause and

word of a statute.” (internal quotation marks omitted));

People ex rel. Illinois Dep’t of Corr. v. Hawkins, 952

N.E.2d 624, 631-32 (Ill. 2011) (“The statute should be

read as a whole and construed so as to give effect to

every word, clause, and sentence; we must not

read a statute so as to render any part superfluous or

meaningless.”).

Our unease about the correctness of the state trial

court’s interpretation of the elements of the offense is

heightened by intervening decisions of the Appellate

Court of Illinois that support the alternate textual read-

ing. For instance, in People v. Collier, 900 N.E.2d 396, 406

(Ill. App. Ct. 2008), the court found a trial court’s order

revoking a prisoner’s good-conduct credits “disquieting”

where its order contained “none of” the “five separate

criteria” listed in 730 ILCS 5/3-6-3(d)(1) in addition to other

flaws not relevant for present purposes. Collier suggests,

therefore, that a court must indicate which of the five

statutory definitions of frivolousness it is invoking in

order for 730 ILCS 5/3-6-3(d) to be satisfied. Other cases

from that court suggest a little flexibility as long as the

No. 09-1031 39

court makes clear its intent to invoke 730 ILCS 5/3-6-3(d).5 3

Notably, the regulation implementing 730 ILCS 5/3-6-3(d)

53

For instance, in People v. Shaw, 898 N.E.2d 755, 758 (Ill. App.

Ct. 2008), the state trial court “f[ound] that [a prisoner’s filing]

was frivolous and patently without merit” within the meaning

of the Illinois Post-Conviction Hearing Act, and it “directed

the circuit clerk to mail a copy of its written order to de-

fendant’s prison warden so that a hearing could be conducted,

pursuant to section 3-6-3(d) . . ., to determine whether some of

defendant’s good-conduct credit should be revoked because

he filed a frivolous pleading.” The appellate court noted that

the plain language of section 3-6-3(d) of the Code . . .

directs the procedure that must take place after a trial

court finds a defendant’s postconviction petition is

frivolous under the [Post-Conviction Hearing] Act. Specifi-

cally, DOC is required to hold a hearing to determine

if defendant violated [the regulation implementing

730 ILCS 5/3-6-3(d)] before DOC can revoke any

good-conduct credit.

898 N.E.2d at 766 (emphasis added) (citation omitted). The

Supreme Court of Illinois has held that a petition is “frivolous,”

as that term is used in the Post-Conviction Hearing Act, “only

if [it] has no arguable basis either in law or in fact.” People v.

Hodges, 912 N.E.2d 1204, 1209 (Ill. 2009). Section 3-6-3(d)(1)(A)

includes within its definition of “frivolous” any filing that

“lacks an arguable basis either in law or in fact.” Therefore, it

would seem that a finding that an item is “frivolous” within

the meaning of the Post-Conviction Hearing Act would be

sufficient to satisfy the plain meaning of 730 ILCS 5/3-6-3(d),

particularly where the court then forwards its finding to IDOC

so that proceedings under 730 ILCS 5/3-6-3(d) may be held,

as occurred in Shaw and in People v. Shevock, 818 N.E.2d 921, 922-

23 (Ill. App. Ct. 2004).

40 No. 09-1031

sets out the following offense: “A pleading, motion, or

other paper filed by the offender for which the court, in

accordance with 730 ILCS 5/3-6-3, has found to be frivolous.”

Ill. Admin. Code tit. 20, § 504 app. A (emphasis added).

The “in accordance with” clause comes in the middle of

“the court . . . has found,” which suggests, at the very least,

that the court must invoke and apply one of the definitions

in 730 ILCS 5/3-6-3(d) before a prisoner may be punished

for violating this disciplinary rule.5 4 However, in this case,

the disciplinary board had before it only a pair of

orders using the word “frivolous”—one of them in a

single-sentence minute entry. The disciplinary board

simply did not have before it evidence of a “specific

finding” that one of the five statutory definitions of

“frivolous[ness]” had been made “in accordance with

730 ILCS 5/3-6-3(d).”

We also are concerned that the broad interpreta-

tion given the statute by the state trial court in the case

before us might frustrate the intended purpose of

730 ILCS 5/3-6-3(d). The legislature crafted a detailed

statute that gives very specific meaning and content to

the term “frivolous.” The legislature may well have

been concerned that such meticulous crafting of the

statute was necessary because, in the common parlance

54

Indeed, at oral argument, Mr. Eichwedel’s counsel conceded

that 730 ILCS 5/3-6-3(d) could be invoked properly, in

his view, where a court states expressly that a filing was

frivolous because it lacked an arguable basis in law or fact,

even if the court does not cite 730 ILCS 5/3-6-3(d).

No. 09-1031 41

of the legal profession, the term “frivolous” is often

employed in a broader sense as a synonym for “meritless,”

when that distinction has no immediate legal significance.5 5

The use of the general term “frivolous” does not

apply expressly any precise definition of frivolous-

ness—let alone one of the definitions in 730 ILCS 5/3-6-

3(d). Under these circumstances, it would seem inappro-

priate to presume that the court has considered the

precise meaning given that term by the legislature. The

statute requires a “specific finding” of frivolousness by

the deciding judge, not a guess by an administrative

body as to whether the judge made such a finding based

on an interpretation of the court’s dicta. Indeed, even

when courts are called on to consider expressly whether

a filing is frivolous, they often struggle to draw the line

between frivolous filings and meritless filings. See United

States v. Eggen, 984 F.2d 848, 850 (7th Cir. 1993) (“A more

difficult question is whether, although Eggen’s appeal

plainly lacks merit, it can be pronounced frivolous.”).

Given the significant possibility that the state trial court

did not take into account appropriately the legislative

concerns in crafting 730 ILCS 5/3-6-3(d), we are reluctant

to employ its interpretation of the statute in deter-

mining whether there was evidence to support a deter-

mination of a violation of the statute in the subsequent

prison disciplinary proceeding.

55

For instance, Black’s Law Dictionary defines “frivolous” as:

“Lacking a legal basis or legal merit; not serious; not reasonably

purposeful <a frivolous claim>.” Black’s Law Dictionary 739

(9th ed. 2009).

42 No. 09-1031

We also note that the construction of 730 ILCS 5/3-6-3(d)

upon which the state trial court apparently settled at-

tributes to the Illinois General Assembly an intention

that strains significantly the usual relationship of the

judiciary to administrative bodies by allowing admin-

istrative bodies to second-guess judicial judgments. When,

as in this case, it is the judgment of federal courts that

state administrative bodies are interpreting, the strain

is especially significant, given the comity inherent in our

federal system. We certainly do not mean to say that any

revocation of good-conduct credits based on a finding

of frivolousness made by a federal court is exempt from

730 ILCS 5/3-6-3(d). To the contrary, federal judges in

the State of Illinois—including the district judge who

used the word “frivolous” in denying Mr. Eichwedel’s

motions—repeatedly have invoked the statute.5 6 In doing

so, however, they have made their intention clear to

State authorities that the underlying litigation position

of the prisoner was frivolous within the terms of the state

56

See Hibberd v. Jennings, No. 07-3131, 2011 WL 1232149, at *13

(C.D. Ill. Mar. 30, 2011) (Baker, J.); Cook v. Standley, No. 10-3183,

2010 WL 3433060, at *3 (C.D. Ill. Aug. 26, 2010) (Baker, J.); Arnold

v. Williams, No. 07-1178, 2010 WL 2697156, at *5 (C.D. Ill. July 7,

2010) (Baker, J.); Thompson v. Quinn, No. 10-1101, 2010 WL

1692690, at *1-2 (C.D. Ill. Apr. 27, 2010) (Baker, J.); cf. Gevas v.

McLaughlin, No. 08-1379, 2011 WL 39721, at *7 (C.D. Ill. Jan. 6,

2011) (“advis[ing]” a prisoner that the court might later find

that certain claims are frivolous if he continues pursuing

them and that such a finding could result in a revocation of

good-conduct credits under 730 ILCS 5/3-6-3(d)).

No. 09-1031 43

statute. 5 7 We find it difficult to attribute to the legislature

an intent to permit a prison disciplinary board to give

a meaning to the order of a federal or state judicial

officer that was not intended.

In this case, the normal course of state appellate

review was truncated after the trial court—in the words

of the Appellate Court of Illinois—“misle[d Mr. Eichwedel]

about the jurisdictional prerequisites to an appeal.” 5 8

Therefore, neither the Appellate Court nor the

Supreme Court of Illinois had the opportunity to hear

Mr. Eichwedel’s appeal and correct any error in the

state trial court’s opinion.

Although we are required to apply state law as inter-

preted by the state courts, we have significant doubt as

to whether 730 ILCS 5/3-6-3(d) means what the state

trial court apparently concluded that it means. Because

of the odd procedural route this case has taken and the

intervening case law that supports what appears to be

the plain wording of the statute, we hesitate to treat the

57

See Hibberd, 2011 WL 1232149, at *16 (“As discussed above, the

court finds Plaintiff pled frivolous claims in his complaint.

See 730 ILCS 5/3-6-3(d). The clerk of the court is directed to fax

a copy of this order to Assistant Illinois Attorney General

Chris Higgerson.”); Cook, 2010 WL 3433060, at *3-4 (“find[ing]”

that the suit was frivolous, invoking 730 ILCS 5/3-6-3(d)

and “direct[ing]” that a copy of the order be mailed to a repre-

sentative of the State); Arnold, 2010 WL 2697156, at *5 (same);

Thompson, 2010 WL 1692690, at *1-2 (same).

58

R.7-4 at 6.

44 No. 09-1031

state trial court’s opinion as a definitive statement of

state law.59 When presented with similar situations, other

federal courts, in the interest of comity, have elected to

certify questions of law to the state court of last resort

to determine what state law was on the date of the

relevant state court opinion. See Fiore v. White, 528 U.S.

23 (1999) (certifying to the Supreme Court of Pennsyl-

vania the question of what a state statute meant on the

date of the petitioner’s conviction where that court

denied the petitioner leave to appeal his conviction

directly and where that court subsequently concluded

that the statute under which the petitioner was

convicted did not prohibit the conduct for which he

had been convicted); Policano v. Herbert, 453 F.3d 75 (2d

Cir. 2006) (per curiam) (certifying to New York Court of

Appeals the question of what a state statute meant on

the date of the petitioner’s conviction where there was

substantial doubt on the matter); Burleson v. Saffle, 278

F.3d 1136 (10th Cir. 2002) (certifying to the Oklahoma

Court of Criminal Appeals the question of what the

statute under which the petitioner had been convicted

meant on the date of the petitioner’s conviction where

that court had disposed of the petitioner’s claim

summarily and, shortly thereafter, announced a rule

which, if applied in the petitioner’s case, would

59

See Fagan v. Washington, 942 F.2d 1155, 1159 (7th Cir. 1991)

(“When in doubt, we think it both impetuous and impolitic

to impute to a state trial judge a misunderstanding of

state law.”).

No. 09-1031 45

implicate the petitioner’s rights under the Double

Jeopardy Clause).60

In our view, certification presents the optimal method

of assuring respect for the decision of the state courts

as to the elements of the offense and of assuring that

an issue which will recur frequently in both state and

federal courts within Illinois, but which might not

reach appellate courts with the same frequency, is

decided definitively. “The goal of this certification

opinion is to obtain from [Illinois]’s highest court its

view of the relevant principles of [Illinois] law—not to

tell that Court how, in our view, [Illinois] law ought to be

interpreted.” Policano, 453 F.3d at 76. Our reading of

the statute and intervening case law, as well as our con-

sideration of the policies underlying the statute, do not

empower us to construe the statute; rather, these

concerns prompt us to seek a definitive interpretation

of Illinois law from the state court of last resort.

60

See also Emery v. Clark, 604 F.3d 1102 (9th Cir. 2010) (certifying

to the Supreme Court of California the question of what a state

statute means where there were conflicting opinions from

various courts); cf. Evanchyk v. Stewart, 340 F.3d 933, 936 (9th

Cir. 2003) (looking to the answer to a question certified to

the Supreme Court of Arizona by a federal district court

on elements of an Arizona crime and granting habeas on in-

structional error theory); Sanford v. Yukins, 288 F.3d 855, 862-63

(6th Cir. 2002) (looking to the Supreme Court of Michigan’s

response to a question that the federal district court had

certified regarding the meaning of the state statute under

which the petitioner had been convicted).

46 No. 09-1031

If the Supreme Court of Illinois agrees with the reading

of the state trial court, we would be constrained to deter-

mine that there was some evidence of a violation of the

statute. On the other hand, if the Supreme Court of

Illinois were to determine that the statute required the

court making the finding of frivolousness to invoke one

of the definitions in 730 ILCS 5/3-6-3(d) or otherwise to

make its intention to invoke 730 ILCS 5/3-6-3(d) known,

there would be no evidence in the administrative

record that Mr. Eichwedel had in fact violated the statute.

Conclusion

Accordingly, in accordance with Illinois Supreme Court

Rule 20 and Circuit Rule 52(a), we respectfully request

that the Supreme Court of Illinois answer the following

question, which may be determinative of this cause:

As of the date Mr. Eichwedel’s state court chal-

lenge to the revocation of his good-conduct credits

became final, was the State required to establish, in

order to revoke a prisoner’s good-conduct credit,

either that the court making the finding of frivo-

lousness had determined specifically that the filing

satisfied one of the definitions of frivolousness in

730 ILCS 5/3-6-3(d) or that the court had otherwise

made its intent to invoke 730 ILCS 5/3-6-3(d)

known?

We invite reformulation of the question presented if

necessary, and nothing in this certification should be

read to limit the scope of inquiry to be undertaken by

No. 09-1031 47

the Supreme Court of Illinois. Further proceedings in

this court are stayed while this matter is under consider-

ation by the Supreme Court of Illinois.

Q UESTION C ERTIFIED

8-29-12