NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 19, 2008*
Decided March 27, 2008
Before
FRANK H. EASTERBROOK, Chief Judge
KENNETH F. RIPPLE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 07‐3622
JOHN W. KELLER, JR., Appeal from the United States District
Petitioner‐Appellant, Court for the Southern District of Indiana,
Indianapolis Division.
v.
No. 1:07‐cv‐1250‐JDT‐TAB
J. DAVID DONAHUE,
Respondent‐Appellee. John Daniel Tinder,
Judge.
O R D E R
John Keller is an Indiana prison inmate who lost good‐time credits when he was
found guilty in a disciplinary proceeding of possessing an electronic device without
authorization. Keller filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254,
claiming that prison officials did not follow the procedures outlined in the disciplinary
*
The appellee was not served with process in the district court and is not
participating in this appeal. After examining the appellant’s brief and the record, we have
concluded that oral argument is unnecessary. Thus the appeal is submitted on the
appellant’s brief and the record. See FED. R. APP. P. 34(a)(2).
No. 07‐3622 Page 2
handbook when they put him in segregation pending his hearing and did not give him the
reports and forms the handbook requires. He also charged that the sanctions against him
were excessive.
The district court summarily dismissed Keller’s petition, concluding that it was
legally insufficient on its face. See McFarland v. Scott, 512 U.S. 849, 856 (1994); Small v.
Endicott, 998 F.2d 411, 414 (7th Cir. 1993). The court reasoned that Keller’s petition and
attachments were enough to demonstrate that he received all the process due under Wolff v.
McDonnell, 418 U.S. 539 (1974), and Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S.
445 (1985). The court added that the alleged violations of prison regulations did not
implicate federal law and thus could not support a claim under § 2254. See Estelle v.
McGuire, 502 U.S. 62, 67‐68 (1991); Evans v. McBride, 94 F.3d 1062, 1064 (7th Cir. 1996); Del
Vecchio v. Ill. Dept. of Corr., 31 F.3d 1363, 1370 (7th Cir. 1994).
On appeal Keller disputes the district court’s reasoning and presses his contention
that prison officials did not follow the guidelines in the handbook. But, as the district court
recognized, Keller has no cognizable claim arising from the prison’s application of its
regulations. What matters is the Due Process Clause. Wolff holds that an inmate cannot be
deprived of a liberty interest through a disciplinary proceeding unless he receives
(1) written notice of the charge at least 24 hours before the hearing, (2) the opportunity to be
heard before an impartial decision‐maker, (3) the opportunity to call witnesses and present
evidence, and (4) a written statement from the finder of fact identifying the evidence and
reasoning underlying the disciplinary action. 418 U.S. at 563‐67; Scruggs v. Jordan, 485 F.3d
934, 939 (7th Cir. 2007). In addition, Hill requires that the decision of a prison conduct
board be supported by “some evidence.” 472 U.S. at 454; United States v. Kizeart, 505 F.3d
672, 675 (7th Cir. 2007). Keller admits that he waived his rights to a 24‐hour notice period,
to call witnesses, and to have the evidence presented at the hearing. And he acknowledges
that guards found two prohibited cell phones and battery chargers in his cell. Instead of
addressing any potential constitutional defect, all of his arguments relate to alleged
departures from procedures outlined in the prison handbook that have no bearing on his
right to due process.
Moreover, Keller’s contention about being placed in segregation while awaiting his
hearing suffers from another flaw. The choice to house an inmate in segregation rather than
with the general population affects the severity, not the duration, of confinement; an inmate
in segregation is not “in custody” for purposes of § 2254 and cannot use habeas corpus to
challenge the sanction. See Montgomery v. Anderson, 262 F.3d 641, 643‐44 (7th Cir. 2001).
AFFIRMED.