Tony Love v. Frank Vanihel

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 21-2406

TONY LOVE,

Petitioner-Appellant,

v.

FRANK VANIHEL, Warden

Respondent-Appellee.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Terre Haute Division.

No. 2:20-cv-00281 — James R. Sweeney, II, Judge.

____________________

ARGUED APRIL 19, 2023 — DECIDED JULY 7, 2023

____________________

Before HAMILTON, BRENNAN, and KIRSCH, Circuit Judges.

BRENNAN, Circuit Judge. Tony Love assaulted an Indiana

correctional officer while serving a 55-year prison term for

murder. Indiana pursued criminal charges against Love, re-

sulting in convictions for felony battery. The Indiana Depart-

ment of Correction also instituted its own prison disciplinary

proceedings, found Love guilty of violating prison rules, and

imposed sanctions including revocation of 5,700 days of his

accrued good time credit. As it stands, the Department’s

2 No. 21-2406

decision extended Love’s release date from prison by more

than 15 years. Love unsuccessfully challenged those sanctions

through prison appeals, and the district court denied his 28

U.S.C. § 2254 petition. Because Love procedurally defaulted

his constitutional claims and forfeited the same by failing to

present them in the district court, we affirm that denial.

I

Love is serving nearly 60 years of consecutive prison sen-

tences for murder and felony battery. Under Indiana law, in-

dividuals who committed an offense before July 1, 2014, can

earn up to one day of good time credit for each day impris-

oned. IND. CODE § 35-50-6-3(a)–(b). The amount of credit an

inmate is eligible to earn depends on which “credit time class”

he is assigned, and the Department is authorized to promote

or demote inmates to different credit time classes. See IND.

CODE § 35-50-6-4. The Department is also authorized to re-

voke and restore earned good time credit. IND. CODE § 35-50-

6-5(a)(1), (c). Love entered state custody in 2002, and between

then and 2018 he earned thousands of days of good time

credit.

The Department revoked all of Love’s good time credit af-

ter 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 cor-

rectional officer Sgt. Hubbard. Prison surveillance cameras

recorded video of the brawl. Hubbard pepper-sprayed Webb

to restrain him, but the encounter turned violent. Nearby in-

mates, including Love, Sanchez Williams, and Matthew

Schrock, Jr., attacked Hubbard and other responding officers.

Amidst the fighting, Love struck Hubbard in the head several

times with a closed fist, causing severe injuries. Schrock also

No. 21-2406 3

stole Hubbard’s pepper spray during the fight and used it

against correctional officers.

Two Indiana government entities punished Love for his

conduct. State prosecutors charged him with three counts of

felony battery, culminating in convictions in 2019, which re-

sulted in an additional, consecutive 1 prison term of four years

and six months. Exercising its authority under Indiana law,

the Department also instituted internal disciplinary proceed-

ings, which form the basis of this appeal. The Disciplinary

Code for Adult Offenders governs how and when inmates are

sanctioned for misconduct. Per the Code, an inmate can lose

a maximum of one year of good time credit for a single of-

fense: “[o]ffenders found guilty of … egregious offenses …

shall be subject to a loss of up to 12 months of Earned Credit

Time with justification from the Hearing Officer.” But a dif-

ferent policy was in effect at the time of Love’s offense. The

Department of Correction Commissioner issued Executive

Directive #17-09 in February 2017, which partially superseded

the Disciplinary Code and imposed harsher sanctions for cer-

tain conduct. In relevant part, the Directive states:

Any adult offender found guilty of a violation

of offense code A102, “Assault/Battery[]” … and

the offensive acts committed by the offender in-

volved a Battery upon any Department staff

member … and resulted in bodily injury or

1 Indiana law mandates that sentences imposed for criminal acts com-

mitted in prison be served consecutively to any pre-existing criminal sen-

tences. IND. CODE § 35-50-1-2(e) (“If, after being arrested for (1) crime, a

person commits another crime: (1) before the date the person is discharged

from … a term of imprisonment imposed for the first crime … the terms

of imprisonment for the crimes shall be served consecutively … .”).

4 No. 21-2406

serious bodily injury being caused to the staff

member … shall receive, in addition to the other

sanctions for the offense listed in … “The Disci-

plinary Code for Adult Offenders,” a loss of the

entire balance of the offender’s accumulated

earned credit time.

The parties agree Directive #17-09 was in effect from February

2017 to March 2020. As such, it applied at the time of the fight

and during Love’s prison disciplinary proceedings.

After a formal disciplinary hearing in 2018, a Department

hearing officer found Love guilty of an A102 violation for bat-

tering Hubbard. Prior to Directive #17-09, that determination

would have made Love eligible to lose up to one year of good

time credit. But, as indicated, Directive #17-09 enhanced the

sanctions for A102 violations. The hearing officer applied the

Directive and vacated 5,700 days of good time credit in addi-

tion to imposing other sanctions. 2

In 2020, though, an appeal review officer vacated the 2018

sanctions and designated the case for rehearing. A hearing of-

ficer again found Love guilty of an A102 violation and im-

posed largely identical sanctions, including revocation of

5,700 days of Love’s good time credit. Love’s appeal of that

decision was denied. With the administrative procedures

available to Love exhausted, he filed a pro se § 2254 petition.

See McAtee v. Cowan, 250 F.3d 506, 508 (7th Cir. 2001) (per cu-

riam) (“Indiana inmates may immediately petition for a writ

2 The hearing officer also demoted Love two good time credit classes,

issued a written reprimand, limited his phone and commissary access for

45 days, ordered monetary restitution, and imposed disciplinary restric-

tive housing for one year.

No. 21-2406 5

of habeas corpus in federal court after exhausting their inter-

nal administrative remedies.”) (citation omitted). The district

court denied relief, finding that the grounds Love advanced

either lacked merit or implicated questions of state law not

cognizable on federal habeas.

Love appealed 3 and, after reviewing the briefs and appel-

late record, we appointed counsel and asked them to “address

whether the State may, consistent with the due process clause

of the Fourteenth Amendment, deprive petitioner of so much

earned time by using the due process requirements of Wolff v.

McDonnell, 418 U.S. 539 (1974), and Superintendent v. Hill, 472

U.S. 445 (1985).” After re-briefing, Love offers two primary ar-

guments. His first concerns the mandatory nature of Execu-

tive Directive #17-09. Per the Directive, the Department must

revoke all accrued good time credit from inmates found guilty

of qualifying offenses. There is no additional sanctions hear-

ing, and the inmate is not provided an opportunity to argue

why revocation of less time is appropriate. Love contends this

procedure is constitutionally inadequate. He argues the De-

partment cannot, consistent with due process, predetermine

how it will use its discretionary power over sanctions without

first considering arguments in mitigation.

Love also argues that Executive Directive #17-09 is facially

arbitrary. He contends it ties punishment to the amount of

good time credit an inmate has rather than the severity of

3 Love can appeal without a certificate of appealability because Indi-

ana law does not allow state court review of prison discipline decisions.

See Walker v. O’Brien, 216 F.3d 626, 637–38 (7th Cir. 2000) (concluding there

is “no statutory authorization for imposing the [certificate of appeal] re-

quirement on appeals in which the complained of detention does not arise

from process issued by a state court”).

6 No. 21-2406

misconduct. He also asserts the Department arbitrarily ap-

plies the Directive. On that point, Love offers two examples

where other inmates presumably should have been punished

in accordance with the Directive but were allegedly shown le-

niency instead. For Love, the selective application of Directive

#17-09 means the Department’s “decision to revoke all of [his]

good time credits was so arbitrary and irrational that it was

unconstitutional.”

The State responds that Love’s two constitutional argu-

ments are not properly before this court. According to the

State, Love procedurally defaulted his constitutional claims

by failing to raise them in the prison administrative proceed-

ings and forfeited them on appeal by failing to bring them in

the district court. The State also contends that Love’s argu-

ments fail on their merits because the Constitution does not

require the procedure Love requests and the revocation of

Love’s good time credit was not arbitrary.

We review de novo the district court’s denial of Love’s

§ 2254 petition. Campbell v. Smith, 770 F.3d 540, 546 (7th Cir.

2014) (citing Ford v. Wilson, 747 F.3d 944, 949 (7th Cir. 2014)).

We do not defer to the Department’s administrative adjudica-

tion of Love’s claims. Deference is owed when a state court

adjudicates a claim on its merits, § 2254(d), but “a prison dis-

ciplinary board is not a ‘court.’” Scruggs v. Jordan, 485 F.3d 934,

938 (7th Cir. 2007) (quoting Pannell v. McBride, 306 F.3d 499,

502 (7th Cir. 2002) (per curiam)).

II

We begin with procedural default and forfeiture. Love’s

petition fails unless he overcomes those procedural hurdles.

To do so, he must show that the Department’s Directive

No. 21-2406 7

violated his constitutional rights. If the Directive is constitu-

tional, then no constitutional error infected Love’s sanctions,

and Love can neither demonstrate prejudice to overcome pro-

cedural default nor show an effect on substantial rights war-

ranting forgiveness of forfeiture. So, the second half of our

analysis examines Love’s arguments that the Department,

through its use of the Directive, violated his constitutional

rights.

A

We start with procedural default. “State prisoners chal-

lenging the deprivation of good-time credits by way of a ha-

beas corpus petition must exhaust adequate and available

state remedies before proceeding to federal court.” McAtee,

250 F.3d at 508 (citation omitted); see also 28 U.S.C.

§ 2254(b)(1)(A), (c). To properly exhaust a claim and “avoid

procedural default, a habeas petitioner must ‘fairly present’ a

claim to each level of the state courts.” McDowell v. Lemke, 737

F.3d 476, 482 (7th Cir. 2013) (quoting Anderson v. Benik, 471

F.3d 811, 814 (7th Cir. 2006)); see also Moffat v. Broyles, 288 F.3d

978, 982 (7th Cir. 2002). Indiana “has no judicial procedure for

reviewing prison disciplinary hearings,” McAtee, 250 F.3d at

508, “so the exhaustion requirement in 28 U.S.C. § 2254(b) is

satisfied by pursuing all administrative remedies,” Moffat, 288

F.3d at 981, and presenting legal contentions “to each admin-

istrative level.” Id. at 982. Procedural default here thus turns

on which claims Love raised when appealing within the De-

partment.

After the Department’s 2020 disciplinary decision, Love

internally appealed his sanctions as far as he could. At those

proceedings, Love claimed the hearing officer improperly

“copied the sanctions” from his original hearing and thereby

8 No. 21-2406

judged him “guilty before the hearing” in violation of due

process. Love also claimed the hearing officer revoked more

good time credit than the Disciplinary Code for Adult Offend-

ers allowed. The State views those claims as distinct from the

constitutional claims Love now asserts and urges us to resolve

this appeal on default. Love offers little resistance on the ques-

tion of whether he defaulted his constitutional claims, focus-

ing instead on why we should excuse default.

We agree with the State that Love procedurally defaulted

the two constitutional claims he brings 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 re-

semblance to the constitutional claims he now brings. Moffat,

288 F.3d at 982. This means we will only review Love’s con-

stitutional claims if he establishes an excuse for the proce-

dural default.

A petitioner seeking review of defaulted claims has two

options. He can show “cause and prejudice for the default” or

he can demonstrate that failure to consider the defaulted

claims will result in a “miscarriage of justice.” Promotor v. Pol-

lard, 628 F.3d 878, 885 (7th Cir. 2010) (citation omitted). Love

relies exclusively on the first option, arguing the Department

caused any procedural default and that he has suffered prej-

udice. We examine each prong of the cause and prejudice in-

quiry.

Cause. “[T]he existence of cause for a procedural default

must ordinarily turn on whether the prisoner can show that

some objective factor external to the defense impeded” com-

pliance with the procedural rule. Murray v. Carrier, 477 U.S.

478, 488 (1986). This normally means petitioner must “show[]

No. 21-2406 9

that the factual or legal basis for a claim was not reasonably

available,” or “that ‘some interference by officials[]’ … made

compliance impracticable.” Id. (quoting Brown v. Allen, 344

U.S. 443, 486 (1953)); see also Garcia v. Cromwell, 28 F.4th 764,

775 (7th Cir. 2022) (quoting Thompkins v. Pfister, 698 F.3d 976,

987 (7th Cir. 2012)) (“Cause requires a showing of ‘some type

of external impediment’ that prevented [petitioner] from pre-

senting his claims.”).

Love argues the Department caused his procedural de-

fault by misleading him as to which policies applied to his

disciplinary rehearing and what potential penalties he faced.

Before Love’s rehearing, the Department provided him with

a Notice of Disciplinary Hearing Screening Report, which

should have apprised Love of the applicable policies. But that

document does not mention Executive Directive #17-09. In-

stead, the Notice states “a finding of guilt may result in the

imposition of sanctions in accordance with the sanctioning

guidelines in Policy 02-04-101, ‘The Disciplinary Code for

Adult Offenders.’” That Executive Directive #17-09 is not

mentioned on the Notice poses a problem, as there are signif-

icant differences between the Disciplinary Code for Adult Of-

fenders and the Executive Directive. Recall that for an A102

violation, the Disciplinary Code caps loss of good time credit

at one year, but the Directive requires revoking all credit. So,

the Notice of Disciplinary Hearing contained incomplete in-

formation about which policies governed Love’s hearing and

what sanctions the Department would impose if it found him

guilty.

This issue was not corrected during Love’s administrative

appeals, either. Though Love argued to prison officials that

his sanctions exceeded those authorized in the Disciplinary

10 No. 21-2406

Code, neither appeals decision informed Love that he was

sanctioned under the Directive. When denying the first ap-

peal, the facility head wrote, “I find no procedural errors and

the sanctions are well within the allowed guidelines.” The

final reviewing authority’s decision was similar: “The

procedure and due process of this case appear to be true and

accurate … The sanctions are within the guidelines of the Dis-

ciplinary Code for Adult Offenders.”

Love argues this misinformation caused his procedural

default. He contends he could not have challenged the di-

rective because the Department did not provide it to him—

rather, he was told a different policy would apply. We agree.

The Department’s incomplete information about which pol-

icy applied constitutes cause for Love failing to bring his con-

stitutional claims in the prison proceedings. Without

knowledge that the Department was applying Executive Di-

rective #17-09 to his case, Love could not feasibly have

brought the constitutional claims he now offers.

Love’s claims on appeal bear this out. He contends his

sanctions are unconstitutional because the Department used

its discretion to predetermine what his punishment would be

if he was found guilty. Without knowing that the Directive

mandated loss of all good time credit, Love would not have

reason to bring this claim. The Department told Love that the

Disciplinary Code controlled, and the Code did not require

loss of all good time credit. Rather, it left that decision in the

hearing officer’s discretion and set an upper limit of one year.

Love also claims his sanctions are arbitrary because the Di-

rective ties punishment to available good time credit and be-

cause the Department applied the Directive to him but not to

similarly situated inmates. This arbitrariness claim, too,

No. 21-2406 11

necessarily requires knowledge of the Directive. The Depart-

ment’s misinformation is therefore “some interference”

making presentment of Love’s constitutional claims in admin-

istrative proceedings impracticable. Murray, 477 U.S. at 488.

Prejudice. The parties disagree on what it means to show

prejudice for procedural default. The State quotes Johnson v.

Foster, 786 F.3d 501, 505 (7th Cir. 2015): “[P]rejudice exists

where the error ‘so infected the entire trial that the resulting

conviction violates due process.’” Love offers a slightly differ-

ent definition of prejudice, quoting Richardson v. Briley, 401

F.3d 794, 801 (7th Cir. 2005): “‘[T]here is a reasonable proba-

bility that the result … would have been different’ but for the

constitutional error.”4

The precise definition of prejudice ultimately is not dis-

positive here. We conclude that the Directive is constitutional,

so Love is unable to demonstrate prejudice under either his

definition or the State’s. Still, we think the Supreme Court’s

recent definition of prejudice in Shinn v. Ramirez, a case ad-

dressing the cause and prejudice excuse for procedural de-

fault, is best. 142 S. Ct. 1718, 1733 (2022). In Shinn, the Court

explained, “to establish prejudice, the prisoner must show not

merely a substantial federal claim, such that the errors at trial

created a possibility of prejudice, but rather that the constitu-

tional violation worked to his actual and substantial

4 The “reasonable probability that … the result of the proceeding

would have been different” formulation applies to other constitutional

claims, such as the prejudice prong of a Strickland analysis, Strickland v.

Washington, 466 U.S. 668, 694 (1984), and the materiality prong of a Brady

analysis, United States v. Bagley, 473 U.S. 667, 682 (1985). But the parties

identify no case where the Supreme Court defined prejudice in exactly

that manner for procedural default.

12 No. 21-2406

disadvantage. Id. (cleaned up). Though we need not resolve

this issue conclusively, we rely on the Shinn definition.

Trying to show prejudice, Love argues there is a reasona-

ble probability that his sanctions would have been different if

he had been afforded due process. His attempt to show prej-

udice falls short, though, for two reasons. First, the Directive,

which required that Love lose all good time credit once found

guilty, is constitutional. As we will explain in detail, the Con-

stitution does not require the procedure Love suggests, and

the Department’s sanction decision was not arbitrary. So,

even if the Department caused Love to procedurally default

his constitutional claims, he suffered no prejudice. The De-

partment’s imposition of sanctions did not violate Love’s con-

stitutional rights at all, let alone in a way that worked to his

actual and substantial disadvantage.

Second, Love does not connect his constitutional argu-

ments to the prejudice inquiry. He argues the Department

should have afforded him a chance to present mitigating ar-

guments, but he fails to identify what arguments he would

have presented. Love also argues that his sanctions are uncon-

stitutionally arbitrary, but he makes no effort to connect that

claim to the question of prejudice. Given this, even if the Di-

rective were unconstitutional, we seriously question Love’s

ability to show prejudice. We return to the Directive’s consti-

tutionality after examining forfeiture.

B

Procedural default concerns which claims Love raised

during his prison administrative proceedings. Forfeiture cen-

ters on which arguments Love raised in the district court. Ar-

guments inadvertently not raised in the district court are

No. 21-2406 13

forfeited 5 and, in the civil context, ordinarily unreviewable on

appeal, because we review forfeited claims only in excep-

tional cases. See Henry v. Hulett, 969 F.3d 769, 785–86 (7th Cir.

2020) (en banc). The State argues Love forfeited his constitu-

tional arguments by failing to present them in his original ha-

beas petition. Love offers three responses.

First, he asserts he preserved his constitutional challenges

to the Department’s sanctions, especially when his pro se dis-

trict court filings are liberally construed. Even liberally con-

struing Love’s district court filings, though, he never raised

an argument resembling those he now offers. The closest Love

came in his petition was arguing his sanctions were “exces-

sive.” That assertion, made in reference to the Department’s

5 Love’s arguments may well be waived instead of forfeited. See San-

tiago v. Streeval, 36 F.4th 700, 710 (7th Cir. 2022) (“An argument not raised

in the habeas petition or in briefing before the district court is waived on

appeal.”) (citation omitted); see also Ben-Yisrayl v. Neal, 857 F.3d 745, 747

(7th Cir. 2017). Still, given this case’s unique facts, I think it best to consider

Love’s arguments forfeited. Circuit precedent tends to apply forfeiture ra-

ther than waiver when failure to raise an argument is inadvertent, see

United States v. Flores, 929 F.3d 443, 447–48 (7th Cir. 2019); Henry, 969 F.3d

at 786. Love was pro se in the district court and unaware of the Directive

until the State’s response to his petition.

The line between waiver and forfeiture is not always clear, especially

in the civil context. Compare Frazier v. Varga, 843 F.3d 258, 262 (7th Cir.

2016) (“Regardless of whether a habeas claim was fairly presented or de-

faulted in the state courts, if an argument was not presented to the federal

district court, it is forfeited in this court.”) (citation omitted), with McGhee

v. Watson, 900 F.3d 849, 853 (7th Cir. 2018) (applying waiver where peti-

tioner failed to present claims in the district court). But even if the choice

between waiver and forfeiture is a close call, it does not change the out-

come: Love’s arguments fail under the more lenient forfeiture rules, so he

is not entitled to relief under either standard.

14 No. 21-2406

policies and not the Constitution, did not preserve Love’s con-

stitutional arguments.

Second, Love argues he could not have raised his due pro-

cess challenges in his habeas petition because the state’s “mis-

direction” made him unaware of the Directive. This may

explain why Love failed to raise his constitutional arguments

in his original petition, but it does not permit him to evade

forfeiture. After Love filed his original habeas petition, the

State identified Executive Directive #17-09 as the basis for

Love’s sanctions. At that time, Love should have raised his

constitutional arguments concerning the Directive. He should

have alerted the district court—through his reply brief, a mo-

tion to amend his petition, or otherwise—that he was only just

learning of the Directive and wished to offer additional argu-

ments concerning its validity. See Federated Mut. Ins. Co. v.

Coyle Mech. Supply, Inc., 983 F.3d 307, 315 (7th Cir. 2020). But

Love failed to raise his constitutional arguments in the district

court, even after he became aware of the Directive. He there-

fore forfeited those arguments.

Third, even if Love did forfeit his constitutional argu-

ments, he contends that forfeiture should be excused. For him,

“it would be unjust to hold that [he] forfeited his due process

challenges by not reacting to the state’s revelation” in the

short time between the State’s response to his petition and the

deadline for his reply. We rarely review forfeited claims, and

then only for plain error: “[I]n civil cases, ‘we typically will

not entertain an argument raised for the first time on appeal,

even for the limited purpose of ascertaining whether a plain

error occurred.’” Henry, 969 F.3d at 786 (quoting CNH Indus.

Am. LLC v. Jones Lang LaSalle Ams. Inc., 882 F.3d 692, 705 (7th

Cir. 2018)). To reach plain error review, Love must

No. 21-2406 15

“demonstrate that: ‘(1) exceptional circumstances exist;

(2) substantial rights are affected; and (3) a miscarriage of jus-

tice will occur if plain error review is not applied.’” Id. (quot-

ing Thorncreek Apartments III, LLC v. Mick, 886 F.3d 626, 636

(7th Cir. 2018)). We have discretion to decide which “circum-

stances fit these criteria.” Id. (citation omitted)

At this point, we streamline our discussion of procedural

default and forfeiture into the single inquiry of whether the

Executive Directive is constitutional. If it is, then Love cannot

show prejudice to overcome procedural default because he

cannot demonstrate that a constitutional violation worked to

his actual and substantial disadvantage. Shinn, 142 S. Ct. at

1733. Likewise, in that case Love cannot justify setting aside

forfeiture and reaching plain error review. If the Department

acted lawfully, then Love’s case is not exceptional, substantial

rights are not affected, and no miscarriage of justice will occur

if plain error review is not applied. Henry, 969 F.3d at 786.

The bottom line is that Love identifies no constitutional

flaw with the Directive. It does not deprive him of procedural

due process, and it is not arbitrary on its face or as applied.

So, we hold that Love cannot overcome procedural default or

forfeiture and is not entitled to habeas relief.

With that, we turn to Love’s constitutional arguments con-

cerning the Directive.

III

A

Love contends he was denied due process by the Depart-

ment “predetermining” that it would revoke all his good time

credit without giving him a hearing to argue for a lesser sanc-

tion. In so arguing, Love is not asserting that determinate

16 No. 21-2406

punishments are generally unconstitutional—nor would that

assertion be correct. The Supreme Court has made clear that

“[d]eterminate sentences were found in this country’s penal

codes from its inception,” Chapman v. United States, 500 U.S.

453, 467 (1991), and “sentencing scheme[s] providing for ‘in-

dividualized sentences rest[] not on constitutional com-

mands, but on public policy enacted into statutes.’” Id.

(quoting Lockett v. Ohio, 438 U.S. 586, 604–05 (1978)). Love rec-

ognizes this. He concedes the Indiana Legislature could have

decided to set a specific credit revocation for prison rules in-

fractions. Love also does not claim that the Department vio-

lated his due process rights when determining his guilt on the

A102 violation. This case is about an additional hearing for

determining his sanctions.

Namely, Love targets the intersection between the Depart-

ment’s discretion over sanctions and its choice to mandate a

particular punishment for certain offenses. As indicated, Indi-

ana law grants to the Department the authority to deprive in-

mates of good time credit for violating Department rules. IND.

CODE § 35-50-6-5(a)(1). It gives the Department discretion

over whether and how much loss of good time credit is an

appropriate sanction for rule violations. Id. The Department

exercised that discretionary power when it decided—through

Executive Directive #17-09—that certain violations would be

punished with an automatic determinate sanction. It is that

exercise of discretion that Love contends is unconstitutional.

Contrary to Love’s position, neither the Supreme Court

nor our court have held that due process requires prison ad-

ministrators to hear mitigating arguments before determining

whether to revoke good time credit, and if so, how much to

revoke. In Wolff, 418 U.S. at 557, 560, the Court recognized that

No. 21-2406 17

inmates have a liberty interest in their good time credit but

held that procedural due process operates differently in the

prison context. Given those considerations, the Court in Wolff

identified a discrete set of procedural protections that must

apply when prison discipline proceedings result in the loss of

good time credit. Id. at 563–67. The Court has summarized the

Wolff procedural requirements as requiring, in addition to a

hearing:

(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 evi-

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

by the factfinder of the evidence relied on and

the reasons for the disciplinary action.

Hill, 472 U.S. at 454 (citing Wolff, 418 U.S. at 563–67). The Court

revisited the question of good time credit revocation in Hill,

where it added the additional procedural requirement that

“some evidence” support a disciplinary board’s decision to

revoke good time credit. Id. at 455.

Since Wolff and Hill, the Supreme Court has not required

prison administrators to hear mitigating arguments before

determining that revocation of good time credit is an appro-

priate sanction or deciding how much good time credit to re-

voke. To be sure, the Supreme Court has held that—when a

court has discretion over whether to revoke parole or proba-

tion—parolees and probationers have a right to present miti-

gating arguments before a decision. Black v. Romano, 471 U.S.

606, 614 (1985) (explaining that “where the factfinder has dis-

cretion to continue probation,” the probationer is assured “an

opportunity to present mitigating evidence and to argue that

18 No. 21-2406

alternatives to imprisonment are appropriate”); Morrissey v.

Brewer, 408 U.S. 471, 488 (1972) (holding that parolees “must

have an opportunity to be heard and to show … that

circumstances in mitigation suggest that the violation does

not warrant revocation”). But the Court has ruled that parole

and probation revocation hearings demand more process

than prison discipline proceedings and that the safeguards re-

quired in those settings do not inherently apply in prisons.

Wolff, 418 U.S. at 561 (explaining that deprivation of good time

credit is “qualitatively and quantitatively different from the

revocation of parole or probation”); id. at 560 (“[I]t is immedi-

ately apparent that one cannot automatically apply proce-

dural rules designed for free citizens in an open society, or for

parolees or probationers under only limited restraints, to the

very different situation presented by a disciplinary proceed-

ing in a state prison.”).

Love does not argue that his prison discipline procedures

lacked the safeguards mandated in Wolff and Hill. So, he can

prevail only if we require prison administrators to afford in-

mates a new and additional procedure—the right to present

mitigating arguments prior to a discretionary decision on

good time credit revocation. Scarcely ever has this court

added to the Wolff and Hill protections, and a recent decision

probably forecloses doing so again. Compare Chavis v. Rowe,

643 F.2d 1281, 1286 (7th Cir. 1981) (requiring prison discipli-

nary officials to disclose exculpatory materials), and Whitlock

v. Johnson, 153 F.3d 380, 388 (7th Cir. 1998) (holding that a

blanket rule preventing virtually all live witness testimony vi-

olated due process), with Crawford v. Littlejohn, 963 F.3d 681,

683 (7th Cir. 2020) (holding procedural due process does not

prohibit prison officials from revoking good time credit in re-

liance on uncorroborated hearsay evidence and explaining

No. 21-2406 19

“[w]e have been told not to add procedures to Wolff’s list.”);

see also Baxter v. Palmigiano, 425 U.S. 308, 322–24 (1976) (reaf-

firming that the balance struck in Wolff between due process

and prison needs is proper.); Rowe v. DeBruyn, 17 F.3d 1047,

1052–53 (7th Cir. 1994) (declining to recognize a right to raise

self-defense as a complete defense in prison disciplinary pro-

ceedings); Montgomery v. Anderson, 262 F.3d 641, 646 (7th Cir.

2001) (rejecting application of Miranda to prison discipline).

This case law alone would stop us from recognizing addi-

tional procedural requirements. But another issue concerns us

as well: The procedural protections identified in Wolff and Hill

involve the determination of guilt—not the later stage when

prison officials assign sanctions. Without additional guidance

from the Supreme Court, we decline to mandate additional

safeguards in a novel context. So, the Department was not re-

quired to hear mitigation before deciding Love’s sanctions. 6

B

This leaves only Love’s second constitutional argument,

that Executive Directive #17-09 is unconstitutionally arbitrary

on its face and as applied by the Department. Love appeals

generally to the Fourteenth Amendment’s guarantees of due

process and equal protection, asserting the Constitution

6 For our dissenting colleague, the amount of good time credit vacated

means Wolff and Hill do not control what procedure was due. Dissent Op.

at 33-35. But those cases precisely define the procedural protections for an

inmate, such as Love, who faces loss of good time credit in a prison disci-

plinary proceeding. Hill, 472 U.S. at 454; Wolff, 418 U.S. at 563–67. 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 proce-

dural protections the Department owed Love.

20 No. 21-2406

forbids prison officials from making arbitrary or irrational de-

cisions “that interfere with an inmate’s constitutionally pro-

tected interests.”

As support for this argument, Love looks to Turner v.

Safley, 482 U.S. 78, 90 (1987). He quotes Turner, in part, for the

rule that “[a] prison decision that ‘infringes on inmates’ con-

stitutional rights is valid only ‘if it is reasonably related to le-

gitimate penological interests.’” We question the applicability

of that case and rule. The test from Turner is ordinarily used

to evaluate prison regulations that burden predicate constitu-

tional rights, like the right to marry, id. at 96–98, or First

Amendment rights, Miller v. Downey, 915 F.3d 460, 462–64 (7th

Cir. 2019). Turner is thus a poor fit for this case, where Love

claims the Department unlawfully interfered with his consti-

tutionally protected liberty interest in good time credit.

Even if the rule Love offers was appropriate for prison

sanction policies, his argument falls short. Love states the Di-

rective is facially arbitrary and unconstitutional because the

punishment it mandates depends on how much good time

credit an inmate has. Thus, it does not match the severity of

an inmate’s sanction with the facts of his offense. For empha-

sis, Love contrasts his sanctions against those Webb received

for his role in the attack on Hubbard. Love and Webb battered

Hubbard, and under the Directive both men lost all their ac-

crued good time credit. Webb had only 2,553 days of good

time credit to lose, so he lost less good time credit. See Webb v.

Warden, 19-cv-273, 2020 WL 8910953, at *1–2 (N.D. Ind. April

21, 2020).

But the Directive is not arbitrary or irrational simply be-

cause it ties punishment to available good time credit. It is

perfectly rational for the Department to conclude that good

No. 21-2406 21

time credit—a variable benefit to prisoners—is incompatible

with egregious policy violations, no matter how much or how

little good time credit an inmate has accrued. The Directive

will land harder on inmates with more good time credit, but

that alone does not mean it is irrational.

The Directive, which mandates punishment for violent

attacks, is rationally related to a collection of legitimate objec-

tives, including deterrence, safety, and security. As the Di-

rective itself explains, “[o]ne of the core responsibilities of the

Department is to maintain the safety and security of its facili-

ties,” which would include deterrence of inmate assaults. In

fact, the Directive’s deterrent effect may be greatest for those

inmates who have accumulated a large amount of good time

credit, as they have more to lose by fighting. So, the Directive

does not, as Love asserts, “make[] no effort to calibrate the se-

verity of an inmate’s sanction to the facts of his offense.” The

Directive applies only to certain egregious policy violations,

meaning it is calibrated to offense facts and is not unconstitu-

tionally arbitrary on its face.

Love also challenges the Department’s application of Di-

rective #17-09 as unequal and unconstitutional. He points to

inmates who, despite committing violations within the Di-

rective’s coverage, presumably did not lose all their good time

credit. Rodney Perry committed an A100 violation by striking

and pepper-spraying a correctional officer. Directive #17-09

was in effect at the time, and Perry originally lost 4,500 days

of good time credit. But the Department eventually modified

his conviction to an A102 violation and lowered his sanction

to 180 days of lost good time credit. See Perry v. Zatecky, 20-cv-

02916, 2021 WL 5113985, at *1 (S.D. Ind. Nov. 2, 2021). Another

inmate, Matthew Schrock, Jr., participated in the same

22 No. 21-2406

altercation as Love and was found guilty of two A102 viola-

tions. Schrock lost 365 days of good time credit for each of-

fense, totaling 730 days of good time credit lost for his role in

the fight. See Schrock v. Warden, No. 19-cv-121, 2020 WL

6455058, at *1 (N.D. Ind. Nov. 2, 2020). Love contends the De-

partment’s decision to apply the Directive in his case—but

possibly not in Perry’s or Schrock’s—is arbitrary and uncon-

stitutional. As best we can understand, this argument sounds

in equal protection and resembles a “class of one” claim. See

FKFJ, Inc. v. Vill. of Worth, 11 F.4th 574, 588 (7th Cir. 2021)

(quoting Engquist v. Oregon Dep’t of Agric., 553 U.S. 591, 602

(2008)) (“The Equal Protection Clause requires a ‘rational

reason’ for disparate treatment of those who are similarly sit-

uated.”); Williams v. Lane, 851 F.2d 867, 881 (7th Cir. 1988)

(“Unequal treatment among inmates … is justified if it bears

a rational relation to legitimate penal interest.”). 7

This attempt to show a constitutional violation also fails.

Love does not substantiate his assertion that the Department

“treated [him] more harshly than similarly situated … in-

mates” by applying the Directive in his case. A plaintiff alleg-

ing arbitrary treatment must typically present a similarly sit-

uated comparator who the State dealt with differently—

someone who is “‘identical or directly comparable’ to [him]

‘in all material respects.’” Miller v. City of Monona, 784 F.3d

1113, 1120 (7th Cir. 2015) (quoting LaBella Winnetka, Inc. v. Vill.

of Winnetka, 628 F.3d 937, 942 (7th Cir. 2010)). Love identifies

7 At oral argument, we asked counsel to identify the basis of Love’s

arbitrariness arguments. Counsel clarified they are rooted in “the general

background concept in equal protection law that you can’t … treat simi-

larly situated people differently for reasons that are wholly arbitrary or

irrational.” See Oral Arg. at 1:50–2:05.

No. 21-2406 23

comparators but fails to show how they are similarly situated

in material respects. Love never presented this argument or

any supporting evidence to the district court. So, the record

does not describe the exact circumstances surrounding other

inmates’ policy violations or their balances of good time credit

at the time of their respective offenses.

For example, Love emphasizes that the Department low-

ered Perry’s punishment from 4,500 to 180 days. But we have

no information on why the Department made that decision or

why it changed his violation code from A100 to A102. Re-

member, the Department retains discretion to restore revoked

good time credit. IND. CODE § 35-50-6-5(c). From our review

of Perry’s docket sheet, it appears the Department decreased

Perry’s good time credit loss from 4,500 days to 180 days in

December 2020, after the Executive Directive’s enforcement

period ended. Schrock’s circumstances are similarly unclear.

Schrock lost 730 days of good time credit, but we do not know

whether he had more than that to lose. So, it is possible that

the Department applied the Directive in Schrock’s case. 8

Even if the Department applied the Directive to Love and

declined to do so for similar inmates, there would still be no

constitutional violation. The imposition of sanctions is an in-

herently discretionary act, and the use of discretion in such

contexts does not raise equal protection arbitrariness con-

cerns. See Engquist, 553 U.S. at 603 (explaining that there are

“some forms of state action … which by their nature involve

8 To the extent Love views Antwan Webb as a comparator for dispar-

ate treatment, his argument fails at the outset. The Department applied

the Directive to Webb’s case, so Webb and Love were treated the same.

Webb, 2020 WL 8910953, at *2.

24 No. 21-2406

discretionary decisionmaking based on a vast array of subjec-

tive, individualized assessments,” and different treatment of

similarly situated individuals in those situations “is an ac-

cepted consequence of the discretion granted”). Though the

Directive purported to make certain sanctions mandatory, it

did not remove the Department’s discretion—in fact, the ap-

plication of the Directive itself was a discretionary choice.

Throughout Executive Directive #17-09’s enforcement period,

the Department retained statutory discretion, notwithstand-

ing its own internal policies, to revoke and reinstate good time

credit. IND. CODE § 35-50-6-5(a)(1), (c). Any choice by the De-

partment to inconsistently apply its sanctioning policies was

within the zone of its exercise of discretion.

To be sure, prison officials are not licensed to arbitrarily

impose punishment. They must give inmates a list of rational

reasons for disciplinary action taken against them. Wolff, 418

U.S. at 563–64. But neither we nor the Supreme Court have

required prison officials to explain why one inmate’s sanc-

tions differ from another’s. What matters is why the Depart-

ment chose to sanction Love in the manner it did. Id. The De-

partment provided Love with a clear statement of reasons

why he lost all his good time credit, including the “[s]erious-

ness” of the offense and the “[l]ikelihood of sanction having a

corrective effect on offender’s future behavior.” Given those

reasons, Love’s loss of good time credit is not arbitrary, even

if the Department chose not to use the Directive in other cases.

Neither the Directive nor Love’s sanctions are unconstitu-

tionally arbitrary. Love has no constitutional right to the same

sanctions as similar inmates, and his appeal to equal protec-

tion fails independently.

No. 21-2406 25

IV

Love identifies no constitutional violation in his prison

discipline proceedings. Given this, he cannot show prejudice

to excuse procedural default. He therefore also cannot

demonstrate “exceptional circumstances” or an impact on

“substantial rights” to set aside his forfeiture. So, Love’s con-

stitutional arguments are procedurally defaulted and for-

feited. For these reasons, we AFFIRM the district court’s denial

of habeas relief.

26 No. 21-2406

KIRSCH, Circuit Judge, concurring in the judgment. Tony

Love advances arguments on appeal that bear no resemblance

to those he made in the district court. Because Love waived

his constitutional arguments by failing to raise them below, I

concur only in the judgment affirming the district court’s de-

nial of Love’s petition.

On appeal, Love contends that the warden violated his

Fourteenth Amendment rights by: (1) failing to provide him

with an opportunity to argue for a lesser sanction, and (2) im-

posing an arbitrary sanction. The district court heard different

arguments. Love argued that his sanction was excessive and

that his good time credits should be restored because the

prison misapplied Executive Directive #17-09 in his case. The

district court correctly concluded that Love’s theory—based

on an alleged error of state law—provided no basis for federal

habeas corpus relief. See Estelle v. McGuire, 502 U.S. 62, 67–68

(1991). Absent from Love’s district court filings was any sug-

gestion that the prison’s policy or his sanction violated the

Constitution.

Love’s failure to make those arguments in his habeas peti-

tion or in his briefing before the district court waived them for

the purposes of appeal. See Santiago v. Streeval, 36 F.4th 700,

710 (7th Cir. 2022). A petitioner’s decisions about what legal

claims and theories to present to the district court are both in-

tentional and strategic, so arguments that didn’t make the cut

below cannot find new life on appeal—they are waived. See

Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011)

(“Longstanding under our case law is the rule that a person

waives an argument by failing to make it before the district

court.”); see also Douglas v. Reeves, 964 F.3d 643, 649 (7th Cir.

2020) (pro se litigants subject to the same waiver rules as

No. 21-2406 27

counseled litigants). Love says he adequately preserved his

constitutional arguments by asserting that his sanctions were

“excessive.” Although we construe pro se filings liberally, see

Erickson v. Pardus, 551 U.S. 89, 94 (2007), there is no reasonable

basis to derive the due process and equal protection argu-

ments Love now offers from his filings below. Moreover, even

if Love’s assertion of excessiveness had put the court on notice

of some constitutional problem in the abstract, such an under-

developed argument would still be waived on appeal. See

Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012).

The dissent says that calling the sanction “excessive”

should have put the district court on notice of “the real due

process problem here.” But what the dissent sees as the real

problem—that Wolff v. McDonnell, 418 U.S. 539 (1974), and Su-

perintendent v. Hill, 472 U.S. 445 (1985), provide insufficient

procedural protections when more than eighteen months of

good time credit are at stake—differs from the issues Love

raised in the district court. True, the district court generously

interpreted Love’s arguments regarding duplicative conduct

reports and immaterial missing witness statements before

concluding that Love had not identified a due process viola-

tion. When it came to Love’s argument that his sanction was

excessive under the prison’s policy, however, the district

court addressed the only argument before it—about the ap-

plication of the policy—and concluded that state law errors

could not lead to federal habeas relief. Nothing in Love’s fil-

ings 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.

Further still, the dissent acknowledges that, despite our in-

vitation, Love and his counsel chose not to make this

28 No. 21-2406

argument on appeal. Post, at 43 n.3. To reach the issue the dis-

sent would like us to decide—one that no party has raised at

any stage of the litigation—we would not simply be ignoring

Love’s waiver below. We’d also be dramatically departing

from the principle of party presentation upon which our ad-

versarial system of adjudication rests. See United States v.

Sineneng-Smith, 140 S. Ct. 1575, 1578–79 (2020).

In sum, Love’s constitutional arguments are not properly

before us because he never presented them to the district

court. Because Love’s waiver precludes review of the merits

and renders issues of procedural default moot, see Frazier v.

Varga, 843 F.3d 258, 262 (7th Cir. 2016), I would reach neither

and concur in the judgment alone.

No. 21-2406 29

HAMILTON, Circuit Judge, dissenting. Petitioner Tony Love

was serving a long term in an Indiana prison when he com-

mitted a serious new crime, participating in an assault that

injured two guards. Love was prosecuted for that assault in a

state court. He was convicted and sentenced to an additional

four and a half years in prison, consecutive to the sentence he

was already serving. That prosecution and sentence, using the

extensive procedural protections that apply in ordinary crim-

inal prosecutions in civilian courts, were an entirely proper

and constitutional response to Love’s new crime.

The constitutional problem here 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. A

prison disciplinary board added more than fifteen years back

onto Love’s original sentence. Imposing such severe punish-

ment through those minimal and informal procedures is, as

best we can tell, literally unprecedented by a factor of ten.

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). This severe punish-

ment violated Love’s right not to be further deprived of lib-

erty without due process of law.

Also, in my view, Love has done a sufficient job of pre-

senting his claim to allow us to reach the merits and reverse.

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 con-

front witnesses against him. He had no access to state courts

30 No. 21-2406

for protection of his rights. 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).

I respectfully dissent. I begin with the due-process merits

and then address the procedural obstacles that my colleagues

rely upon to avoid the merits.

I. The Merits: The Limits of Wolff and Hill

The merits of Love’s due process claim are straightfor-

ward. The State’s unprecedented attempt to expand its disci-

plinary powers requires a fresh and close look at the founda-

tions of the due process jurisprudence on prison discipline.

Start with Love’s liberty interest. Love was serving a 55-year

sentence for murder imposed under state law that allowed

him to earn “one-for-one good time.” One day of good behav-

ior in prison earned one day of credit, reducing Love’s sen-

tence by one day. See Ind. Code § 35-50-6-3 (setting rules for

persons convicted of committing offenses before July 1, 2014).

Having been in prison for such a long time, Love had earned

more than 5,700 days of good-time credit, more than fifteen

years, off his original sentence.

Earned good-time credits under Indiana law create liberty

interests protected by the Due Process Clause of the Four-

teenth Amendment. E.g., Cochran v. Buss, 381 F.3d 637, 639

(7th Cir. 2004); McPherson v. McBride, 188 F.3d 784, 785 (7th

Cir. 1999); Meeks v. McBride, 81 F.3d 717, 719 (7th Cir. 1996).

Love could not be deprived of those credits without due pro-

cess of law.

No. 21-2406 31

But how much process is due? The Supreme Court estab-

lished the minimum due process requirements for depriving

a prisoner of liberty interests provided by good-time credits

in Wolff v. McDonnell in 1974. The Court’s opinion in Wolff is

a candid exercise in balancing competing interests: institu-

tional needs v. a prisoner’s liberty interests. The balance re-

flects the three-step structure adopted soon after Wolff in

Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976), weighing the

private interest at stake, the public interest at stake, and the

potential value of additional procedures.

Wolff recognized a prisoner’s liberty interest in good-time

credits, but it also gave substantial weight to the institutional

needs of prison officials to punish misconduct much more

swiftly than could be imposed through civilian courts, and

without undue risks to institutional safety, including the

safety of witnesses. 418 U.S. at 554–63. Wolff held that a pris-

oner facing deprivation of good-time credits is entitled to the

following minimal procedural protections: (1) advance writ-

ten notice of the charges (but 24 hours before a hearing was

deemed sufficient); (2) a hearing before a decision-maker who

was not involved in the underlying incident; (3) an oppor-

tunity to call witnesses and present documents, but only if

consistent with institutional safety and correctional goals; and

(4) a written statement by the decision-maker of the evidence

relied upon and the reasons for the disciplinary action. Id. at

563–67.

At the same time, Wolff rejected further requirements

closer to those in criminal prosecutions. The prisoner has no

right to confront and cross-examine witnesses. The prisoner

has no right to retained counsel, let alone appointed counsel.

And the prisoner has no right to a decision-maker who is a

32 No. 21-2406

judge or otherwise independent of the prison administration.

418 U.S. at 567–72. The rules of evidence do not apply in

prison discipline hearings. E.g., Walker v. O’Brien, 216 F.3d

626, 637 (7th Cir. 2000).

As for the standard of proof, the requirement of proof be-

yond a reasonable doubt is fundamental to due process of law

in American criminal cases. E.g., Jackson v. Virginia, 443 U.S.

307, 315–18 (1979); In re Winship, 397 U.S. 358, 361–64 (1970).

In Superintendent v. Hill, however, the Court held that a prison

disciplinary decision depriving a prisoner of liberty needs to

be supported only by “some evidence.” 472 U.S. at 454. This

standard may be the least demanding in American law for

any purposes, let alone for depriving a person of his liberty.

The results of these minimal procedural and substantive

demands are evident in our court’s jurisprudence, particu-

larly in the numerous cases brought by Indiana prisoners di-

rectly to federal court. (Indiana has chosen not to provide

state-court judicial review of nearly all prison disciplinary de-

cisions. McAtee v. Cowan, 250 F.3d 506, 508 (7th Cir. 2001);

Walker, 216 F.3d at 637–38.)

Under Wolff and Hill, for example, a prisoner may lose

good-time credits if a prison official decides to believe a

second-hand tip from another prisoner. The loss of liberty

may be imposed without the accused knowing the identity of

his accuser, let alone having any opportunity to confront or

question the accuser or any other adverse witness, and

perhaps without the opportunity to call any witnesses or offer

any documentary evidence of his own. The accused, for

example, may be denied access to video evidence of an

incident on the theory that disclosure of the recording would

disclose confidential information about the capabilities of the

No. 21-2406 33

monitoring system. See, e.g., Crawford v. Littlejohn, 963 F.3d

681, 682–83 (7th Cir. 2020) (reversing grant of habeas corpus;

uncorroborated hearsay may provide “some evidence”);

Scruggs v. Jordan, 485 F.3d 934, 940–41 (7th Cir. 2007) (no right

to call live witnesses or view surveillance video); Piggie v.

Cotton, 342 F.3d 660, 666 (7th Cir. 2003) (“prison disciplinary

committees may deny witness requests that threaten

institutional goals or are irrelevant, repetitive, or

unnecessary”); Gaither v. Anderson, 236 F.3d 817, 820 (7th Cir.

2001) (affirming denial of access to video evidence for security

reasons), overruled in part on other grounds, White v. Indiana

Parole Bd., 266 F.3d 759, 765–66 (7th Cir. 2001).

Making matters more challenging, whatever defense the

accused prisoner hopes to offer might have to be assembled

in as little as 24 hours, and without any help from a lawyer.

See Westefer v. Neal, 682 F.3d 679, 684–86 (7th Cir. 2012) (va-

cating injunction requiring more than 24 hours’ notice); Jack-

son v. Carlson, 707 F.2d 943, 948–49 (7th Cir. 1983) (rejecting

claim of “[in]adequate staff representation” because “[n]o

court has recognized any sort of right to counsel in prison dis-

cipline cases”).

To be clear, my point is not to disagree with or criticize

Wolff or Hill. They have been settled law for decades. My

points are instead (a) to emphasize how different these rules

are from an ordinary criminal prosecution and (b) to prevent

their unprecedented extension to impose punishments far

more severe than the Court considered in Wolff and Hill. A

closer look at the due process analysis in those cases shows

that neither Wolff nor Hill offers any support for the result in

this case: use of the minimal procedures they accepted to de-

prive a person of liberty for more than fifteen years. In Wolff,

34 No. 21-2406

the state’s disciplinary sanctions could extend a sentence by

no more than a year and a half. 418 U.S. at 585 (Marshall, J.,

concurring in part and dissenting in part). In Hill, the most

severe punishment at issue was 100 days of good time. 472

U.S. at 448.

Petitioner Love’s loss of liberty in this case is more than

ten times greater than the maximum loss considered in Wolff

and more than fifty times greater than the maximum loss in

Hill. These order-of-magnitude differences change the due

process balance, and do so dramatically. In terms of Wolff and

Mathews v. Eldridge, the private interest at stake here dwarfs

the private interests at stake in Wolff and Hill.

Such a dramatic difference should change the balance to

require much more robust procedural and substantive protec-

tions, like the full set of rights that applied to Love when he

was prosecuted for the same assault in a civilian court. Those

additional procedural protections are intended to reduce the

risk of errors that the Supreme Court deemed tolerable in

Wolff and Hill, where the stakes were so much lower, without

indicating that errors with much more serious consequences

would be tolerable.

To be sure, the Supreme Court’s opinions in Wolff and Hill

did not identify any cap on the punishment that could be im-

posed through the minimal procedures they approved. But

neither did they expressly authorize sanctions more severe

than those suffered by the prisoners before them. Our court’s

job is to understand the Court’s reasoning in those cases, in-

cluding limits that were implicit in that reasoning. The

Court’s decisions expressly balanced private interests against

public interests. See Hill, 472 U.S. at 454 (“requirements of due

process are flexible and depend on a balancing of interests

No. 21-2406 35

affected by the relevant government action”); Wolff, 418 U.S.

at 560–63 (identifying public and private interests to be bal-

anced). A ten- to fifty-fold increase in the private interest at

stake calls for a different outcome. 1

As best I can tell, no other State has tried to use the mini-

mal procedures of prison discipline to impose punishments

remotely close to the fifteen-plus years of prison Indiana has

imposed on petitioner Love. Nor has any court approved of

such severe punishment imposed through these minimal pro-

cedures. Because the due process balance weighs so heavily

in favor of petitioner, we should enforce the Due Process

Clause here by granting a writ of habeas corpus setting aside

the punishment imposed on petitioner through these minimal

processes. 2

1 The Court’s 1974 opinion in Wolff included the unusual comment

that its holdings were not “graven in stone.” 418 U.S. at 572. Emphasizing

the balancing test, the Court said its procedural requirements “represent

a reasonable accommodation between the interests of the inmates and the

needs of the institution,” id., but explained further: “As the nature of the

prison disciplinary process changes in future years, circumstances may

then exist which will require further consideration and reflection of this

Court.” Id. The radical change in the balance of interests in this case calls

for a new look at the applicable rules and the limits of Wolff and Hill.

2 According to our research, the most significant deprivations of good-

time or earned credit considered by the circuits generally do not exceed

two years. E.g., Wall v. Kiser, 21 F.4th 266, 268–69 (4th Cir. 2021) (270 days:

declining to apply retroactively procedural right to access surveillance ev-

idence in prison disciplinary proceedings); Lerma v. Estelle, 585 F.2d 1297,

1297–99 (5th Cir. 1978) (360 days: petition denied for failure to exhaust

administrative remedies); Hensley v. Wilson, 850 F.2d 269, 272, 276, 283 (6th

Cir. 1988) (two years: holding that prison disciplinary committees must

assess confidential informant reliability and produce contemporaneous,

non-public, written records to allow judicial review but granting

36 No. 21-2406

One theoretical solution for the due process problem here

would be to adopt some sort of sliding scale for prison disci-

pline procedures, adding procedural protections to the

Wolff/Hill floor as the potential punishment increases. I sus-

pect that answer would be quite difficult to apply and even

more difficult to work out through case law. That answer

would also run contrary to the Supreme Court’s instructions

to lower courts since Wolff and Hill not to add procedures to

the ones adopted in those decisions where they apply. See

Crawford, 963 F.3d at 683, citing Baxter v. Palmigiano, 425 U.S.

308, 321–22 (1976).

The better solution, pending further guidance from the Su-

preme Court, would be to stick with the maximum eighteen-

month punishment accepted in Wolff. Such swift punishment

defendants qualified immunity); Offet v. Solem, 823 F.2d 1256, 1257, 1261

(8th Cir. 1987) (270 days: ordering stay of prisoner’s action under 42 U.S.C.

§ 1983 until state remedies exhausted); Clardy v. Levi, 545 F.2d 1241, 1243,

1246 (9th Cir. 1976) (212 days: dismissing appeal under Administrative

Procedure Act for want of jurisdiction); Magar v. Parker, 490 F.3d 816, 817

(10th Cir. 2007) (one year: petition procedurally barred). Most cases in-

volve much less. Only a few have ever dealt with deprivations exceeding

two years. See Hudson v. Johnson, 242 F.3d 534, 535–37 (5th Cir. 2001) (3,530

days: assuming protected liberty interest and holding that deprivation

was supported by “some evidence”); Arsberry v. Sielaff, 586 F.2d 37, 42–44

(7th Cir. 1978) (three to five years: five prisoners, who conceded that dep-

rivations of good-time credits comported with Wolff, challenged segrega-

tion and loss of opportunity to earn good-time credit). The petitioners in

Hudson and Arsberry did not challenge the deprivations as excessive or

challenge the procedures used in the prison disciplinary process. Also, in

neither case did the court address the question in this case: whether the

State may, consistent with the Due Process Clause of the Fourteenth

Amendment, deprive a prisoner of so much earned time by using the min-

imum procedures accepted in Wolff and Hill.

No. 21-2406 37

allows prison officials to protect their institutional interests

consistent with Wolff and Hill while leaving more severe pun-

ishments for prosecution and conviction in a civilian court us-

ing the full procedural protections in criminal prosecutions.

II. Procedural Issues

My colleagues focus on procedural issues. Judge Bren-

nan’s opinion finds procedural default in the prison adminis-

trative hearing and forfeiture in the district court. Judge

Kirsch’s opinion finds waiver in the district court by this pro

se prisoner facing a State government exploring untested con-

stitutional territory. On those procedural points, I respectfully

disagree.

A. Procedural Default in the Prison

Petitioner Love seeks relief under 28 U.S.C. § 2254. Prison

discipline cases filed by Indiana prisoners present special is-

sues of exhaustion of state remedies and procedural default

because Indiana offers prisoners no path for judicial review of

revocations of good-time credits, with only narrow excep-

tions. Lauderdale-El v. Indiana Parole Bd., 35 F.4th 572, 580–81

(7th Cir. 2022). Section 2254(b)(1) provides that a State pris-

oner’s petition for a writ of habeas corpus

shall not be granted unless it appears that—

(A) the applicant has exhausted the remedies

available in the courts of the State; or

(B)(i) there is an absence of available State cor-

rective process; or

(ii) circumstances exist that render such process

ineffective to protect the rights of the applicant.

38 No. 21-2406

As applied to prison disciplinary cases from Indiana,

which Indiana courts almost never see, Section 2254 has

posed challenges for this court. For example, we have held

that a prison disciplinary board is not a “State court” whose

decision is entitled to deferential review under Section

2254(d). White v. Indiana Parole Bd., 266 F.3d 759, 765–66 (7th

Cir. 2001). On the other hand, we have held that the exhaus-

tion requirement of Section 2254(b) phrased in terms of “the

courts of the State” does apply to prison disciplinary boards.

Markham v. Clark, 978 F.2d 993, 994–96 (7th Cir. 1992) (apply-

ing statutory language carried forward under AEDPA).

Judge Brennan’s opinion finds that Love procedurally de-

faulted his due process challenge by failing to raise it before

the prison disciplinary board. Relying on Moffat v. Broyles, 288

F.3d 978, 982 (7th Cir. 2002), which followed Markham, the

opinion applies exhaustion and procedural default rules as if

the prison board were a court and finds that a prisoner proce-

durally defaults unless he fairly “present[s] legal contentions”

through each level of the prison’s disciplinary process.

This case does not present an occasion to question broadly

the fit between the statutory language and federalism policies

behind Section 2254(b), particularly the statutory references

to “the courts of the State,” and the extension of that language

to prison disciplinary boards in Markham and Moffat. Even as-

suming that the extension was proper, we should not find

procedural default or a failure to exhaust here for reasons spe-

cific to this case.

First, and most narrowly, the State did not confront Love

with Executive Directive #17-09 during the prison discipli-

nary process. Love thought he was facing a loss of no more

than one year of good-time credit. Not until much later, when

No. 21-2406 39

the State responded in the federal district court to his habeas

petition, did the State invoke Executive Directive #17-09 to

justify the more than fifteen-year loss of good time in this case.

Dkt. 15 at 2. During the prison disciplinary process, Love

simply had no reason to make the due process arguments ad-

dressed above.

Second, even if the State had put Love on notice earlier

that he was facing a loss of more than fifteen years of good-

time credit under the Executive Directive, there would have

been no point in making a constitutional due process argu-

ment before the disciplinary board. The board could not have

granted him relief from the Executive Directive by the Indiana

Commissioner of Correction, the head of the entire Depart-

ment of Correction. The prison disciplinary board simply did

not have the authority to overrule the Commissioner’s policy,

let alone the familiarity with federal constitutional law to ad-

judicate the merits of the issue here.

Ample authority excuses failures to exhaust constitutional

issues before agencies that have no expertise or authority to

decide them. See generally, e.g., Carr v. Saul, 141 S. Ct. 1352,

1360–61 (2021) (declining to require issue exhaustion of struc-

tural constitutional challenge outside agency’s expertise and

power to grant relief); Mathews v. Eldridge, 424 U.S. 319, 329–

30 (1976) (excusing failure to raise before agency plaintiff’s

constitutional challenge to administrative procedures); Indi-

ana Dep’t of Envt’l Mgmt. v. Twin Eagle LLC, 798 N.E.2d 839,

844 (Ind. 2003) (exhaustion of administrative remedies not re-

quired for pure issues of law); Sunshine Promotions, Inc. v.

Ridlen, 483 N.E.2d 761, 765 (Ind. App. 1985) (executive official

lacked authority to pass on constitutionality of state statute).

These authorities addressed parties represented by counsel

40 No. 21-2406

and risking much less than the stakes for Love in the discipli-

nary proceeding. Their logic applies with even more force to

an uncounseled prisoner facing a loss of liberty. Accordingly,

we should not require Love to have raised the basic due pro-

cess problem with the Executive Directive during the prison

disciplinary process.

If these two reasons were not enough to allow us to reach

the merits, there is more. Judge Brennan’s opinion acknowl-

edges that a prisoner is not required to “articulate legal argu-

ments with the precision of a lawyer.” Ante at 8, quoting

Moffat, 288 F.3d at 982 (“If Moffat had expressed disgruntle-

ment about the generic reason [given for imposing discipline],

that would have been sufficient whether or not he cited Wolff.

…”). So even if Love might have been required to present his

constitutional issue to the prison disciplinary board that

could do nothing about it, he made clear all along that he was

challenging his punishment as excessive. Love’s assertion in

the disciplinary process that the deprivation went beyond

what the Disciplinary Code allowed was more than enough

to alert the disciplinary authorities that Love saw a problem

with how the sanctions had been calculated. See id. That

should have been enough, especially when he was confront-

ing without counsel a State’s unprecedented effort to deprive

him of liberty for more than fifteen years by stretching Su-

preme Court decisions beyond recognition.

Still further, the reasons for issue exhaustion in habeas

cases do not apply in this case. Exhaustion “is designed to

give the State courts a full and fair opportunity to resolve fed-

eral constitutional claims before those claims are presented to

the federal courts.” O’Sullivan v. Boerckel, 526 U.S. 838, 845

(1999) (emphasis added). The need for that full and fair

No. 21-2406 41

opportunity flows from “considerations of comity, the neces-

sity of respect for coordinate judicial systems,” for “state

courts share with federal courts an equivalent responsibility

for the enforcement of federal rights.” Schlesinger v. Council-

man, 420 U.S. 738, 755–56 (1975) (emphasis added); see also

Shinn v. Ramirez, 142 S. Ct. 1718, 1732 (2022) (“Together, ex-

haustion and procedural default promote federal-state com-

ity.”). In other words, the procedural requirements assume

the judicial nature of state review. See Magwood v. Patterson,

561 U.S. 320, 340 (2010) (“If a petitioner does not satisfy the

procedural requirements for bringing an error to the state

court’s attention—whether in trial, appellate, or habeas pro-

ceedings, as state law may require—procedural default will

bar federal review.”). Comity and federalism concerns do not

have the same force where the State has elected to forgo state-

court review of decisions made by prison authorities.

B. Forfeiture or Waiver in the District Court?

Judge Brennan’s opinion also finds that Love forfeited his

due process claim because he never raised in the district court

“an argument resembling those he now offers.” Ante at 13.

Judge Kirsch’s opinion finds waiver. In this unusual case, we

should overlook this pro se prisoner’s limited ability to re-

spond to the State’s unprecedented effort to punish him so se-

verely using the minimal procedures of prison discipline.

We “liberally construe prisoner complaints,” like Love’s

habeas petition, “filed without the assistance of a lawyer.”

Shaw v. Kemper, 52 F.4th 331, 334 (7th Cir. 2022). The narrowest

reason to do so is very case-specific. In his habeas petition,

Love called the loss of all his good-time credit “excessive.”

Dkt. 1 at 4. Of course, Love believed the deprivation was “ex-

cessive” when measured against the Disciplinary Code’s one-

42 No. 21-2406

year limit. When he filed his petition, his arguments re-

sponded to what prison officials had told him. He did not

even know that Executive Directive #17-09 had been applied

to his case. Liberally construed, calling the deprivation “ex-

cessive” should be enough to signal the real due process prob-

lem here. In a later memorandum in the district court, Love

explicitly framed his claim as “a due process violation” and

cited Seventh Circuit cases—Richards v. Buss, 190 F. App’x 491

(7th Cir. 2006), and Piggie v. McBride, 277 F.3d 922 (7th Cir.

2002)—dealing with the deprivation of good-time credits

without sufficient due process protections. Dkt. 15 at 3. This

was not lost on the district court, which specifically addressed

“whether the disciplinary proceeding … or the sanctions as-

sessed as a result of it … deprived Mr. Love of his due process

rights guaranteed by Wolff and Hill.” Dkt. 20 at 6. The district

court liberally construed Love’s arguments, and we should

too.

Love’s pro se submissions admittedly did not raise the

specific due-process theory explained above. I respect the

general principle of party presentation, but that principle “is

supple, not ironclad.” United States v. Sineneng-Smith, 140 S.

Ct. 1575, 1579 (2020). This is a case where it should bend. It is

not reasonable to expect a pro se prisoner to develop such a

theory in response to a State’s unprecedented attempt to ex-

tend Supreme Court precedents to deprive him of so much

liberty with such minimal procedures. This is the kind of rare

case where we should exercise our discretion to reach the

merits, as we recently did for no less capable a litigant than

the United States Department of Justice. See, e.g., Bourgeois v.

Watson, 977 F.3d 620, 631–32 (7th Cir. 2020) (excusing forfei-

ture in district court and upholding death penalty in federal

prosecution). The unprecedented severity of Love’s

No. 21-2406 43

punishment led us to recruit counsel for Love to brief the im-

plications for due process where a prisoner is deprived of so

much good-time credit. It would not be reasonable to expect

Love to have developed himself the view I have expressed on

the merits. 3

In sum, the unprecedented use of the minimal procedures

of Wolff and Hill to deprive Love of more than fifteen years of

liberty calls for an exercise of our discretion to reach the mer-

its and to reverse the denial of the writ. I respectfully dissent.

3 This panel reviewed Love’s pro se briefing on appeal. We decided to

recruit counsel for him and ordered further briefing to address “whether

the State may, consistent with the due process clause of the Fourteenth

Amendment, deprive petition of so much earned time by using the due

process requirements” of Wolff and Hill. This court and the parties before

us often benefit from generous and able pro bono work from many mem-

bers of the bar. In this case, however, recruited counsel apparently chose

not to address the issue as we tried to frame it and as I have addressed it

above. They instead argued only (a) that due process required that the de-

cision-maker have flexibility in deciding the severity of Love’s punish-

ment, and (b) that Love’s punishment violated his due process and equal

protection rights because it was so much more severe than that imposed

on others involved in the same offense. The brief was well written, but

with respect, even in criminal courts mandatory minimum sentences do

not violate due process of law (apart from death sentences or, for juvenile

offenders, life without parole, addressed under both the Eighth and Four-

teenth Amendments). The equal protection theory briefed by counsel vir-

tually never finds any traction when co-defendants receive different indi-

vidual sentences.