                             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




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