201 F.3d 995 (7th Cir. 2000)
BRIAN THOMAS,    Petitioner-Appellant,v.GARY R. MCCAUGHTRY, Warden,  Waupun Correctional Institution,    Respondent-Appellee.
No. 99-1246
In the  United States Court of Appeals  For the Seventh Circuit
Argued November 1, 1999Decided January 26, 2000

Appeal from the United States District Court  for the Eastern District of Wisconsin.  No. 98 C 1191--J.P. Stadtmueller, Chief Judge.
Before EASTERBROOK, RIPPLE and DIANE P. WOOD, Circuit  Judges.
RIPPLE, Circuit Judge.


1
Brian Thomas, a Wisconsin  state prisoner, received a conduct report  alleging that he had engaged in "Sexual Conduct"  in violation of sec. DOC 303.15 of the Wisconsin  Administrative Code. He appealed the disciplinary  committee's finding of guilty to the warden of  the institution; the warden remanded it to the  disciplinary committee for further action. After  the disciplinary committee acted for the second  time and found him guilty, Mr. Thomas sought  review in the Wisconsin state courts through that  state's certiorari proceeding. The state courts  held that relief was barred because Mr. Thomas  had not exhausted available administrative  remedies. Mr. Thomas then sought a writ of habeas  corpus in the district court. See 28 U.S.C. sec.  2254. After the court denied the petition, he  took this appeal to this court. For the reasons  set forth in the following opinion, we affirm the  judgment of the district court because Mr. Thomas  has procedurally defaulted.


2
* BACKGROUND

A.  Facts

3
Brian Thomas is a state prisoner at the Waupun  Correctional Institution ("WCI"), a maximum  security facility in Waupun, Wisconsin. On April  3, 1997, Mr. Thomas received a conduct report  alleging that he had engaged in "Sexual Conduct"  in violation of sec. DOC 303.15 of the Wisconsin  Administrative Code.1 The conduct report  accused Mr. Thomas of washing another inmate's  back with a soapy towel while both men were naked  in the same shower stall. The conduct report also  included these facts: (1) Mr. Thomas admitted to  being bisexual and to leading this lifestyle  before his incarceration; (2) the other inmate,  Timothy Harrison, stated that, on a previous  occasion, Mr. Thomas had tried to kiss him while  they were working in the dishroom; and (3) Mr.  Thomas admitted that the dishroom incident  occurred but also stated that he was only "joking  around." R.18 at 3.


4
As a result of this conduct report, WCI's  adjustment committee, the committee charged with  reviewing violations such as this, conducted a  disciplinary hearing for Mr. Thomas on April 24,  1997. At the hearing, Mr. Thomas admitted to  being in the shower with Harrison but denied any  sexual intent on his part. Harrison testified  that Mr. Thomas never touched him.


5
The committee,  however, found the 2 prisoners to be incredible  and instead credited the statement of the officer  who had filed the conduct report.


6
According to the form that memorialized the  committee's decision, the adjustment committee  found Mr. Thomas guilty of "Sexual Conduct" as  defined by sec. DOC 303.15. The committee did not  indicate the subsection that Mr. Thomas had  violated. As indicated by the decision form, the  committee relied on the conduct report and Mr.  Thomas' "DOC 120," or identification card, as  evidence for its decision. The committee  explained the reasons for its decision with these  notes: "We find the witness not credible states  inmate Thomas did not wash back while Thomas  stated he did. We find Capt Strahota credible in  his report of the incident. Inmate knowingly was  in a shower stall with another inmate. Inmate  admitted to washing the other inmates back." R.18  at 18.


7
A violation of the rules prohibiting "Sexual  Conduct" is a major violation as defined by DOC  regulations, and as such, the procedure to be  followed by the corrections officials and Mr.  Thomas during the course of the disciplinary  proceedings was governed by sec. DOC 303.76,2  which requires inmates to appeal the decision of  the adjustment committee to the superintendent,  or warden, within 10 days of the committee's  decision. See Wis. Admin.Code sec. DOC  303.76(7)(a). The warden then must decide within  10 days whether to affirm the committee's  decision and sentence, affirm the decision but  reduce the sentence, reverse the decision, or  remand the case back to the committee. See Wis.  Admin. Code sec. DOC 303.76(7)(b) & (c).  According to sec. DOC 303.76(7)(d), the warden's  decision is the final decision.


8
After being notified of the committee's  decision, Mr. Thomas properly appealed to WCI's  warden, Gary McCaughtry. On April 28, 1997, the  warden issued his decision, which stated: "I  remand back to Adjustment Committee to address  reasons for decision in record. All other matters  are correct. [Evidence]3 supports findings. No  technical errors." R.18 at 9.


9
On remand, the adjustment committee completed  another decision form. The committee again  indicated that Mr. Thomas had been found guilty  of violating sec. DOC 303.15, but the committee  also provided slightly different reasons for its  decision. The committee indicated that it relied  not only on the conduct report and the "DOC 120"  as evidence but also on "written statements" and  "303.15 (A)(1)(6)," a non-existent code section.  R.18 at 5. The committee explained the reasons  for its decision with this paragraph:


10
After review of the C.R. [Conduct Report], the  inmates statement, witness testimony and the  evidence, we find he intentionally attempted to  have sexual contact with another inmate while  they were taking a shower. Both inmates were  unclothed, in the same shower stall, and inmate  Thomas did admit to washing inmate Harrison's  back. Because of the prison setting and being an  all male institution this type of behavior is not  permitted.


11
R.18 at 5.


12
Mr. Thomas did not appeal this second decision  to the warden. Because Mr. Thomas was found  guilty of "Sexual Conduct," he lost 90 days good  time credit.

B.  State Court Proceedings

13
Mr. Thomas later filed an action for a common  law writ of certiorari in the Circuit Court of  Dane County, Wisconsin. He sought review of the  adjustment committee's decision on remand. The  court dismissed Mr. Thomas' lawsuit because,  according to the court, he had failed to exhaust  his administrative remedies as required by state  law. The court rejected Mr. Thomas' contention  that, because the warden previously had decided  his case, he was not required to file an appeal  of the adjustment committee's decision on remand.  Noting that the adjustment committee's decision  on remand referenced a non-existent code section  ("303.15(A)(1)(6)"), the court explained that Mr.  Thomas could have, and should have, appealed the  committee's second decision because of this  discrepancy. Because the court believed Mr.  Thomas should have appealed this second decision,  the court held that Mr. Thomas' failure to appeal  was "fatal error" and that, therefore, the court  lacked subject matter jurisdiction over his  petition.


14
The Court of Appeals of Wisconsin issued an  opinion which incorporated the circuit court's  decision as its own and summarily affirmed the  judgment of that court. The Supreme Court of  Wisconsin denied review of Mr. Thomas' case.

C.  Decision of the District Court

15
Subsequently, Mr. Thomas commenced this federal  habeas proceeding by filing his petition in the  district court. He raised 2 issues in his habeas  petition to the district court. First, Mr. Thomas  alleged that he was mistreated while in  segregation at WCI. Second, he challenged his  loss of 90 days good time credit for violating  sec. DOC 303.15. The district court held that Mr.  Thomas had failed to exhaust any of his  administrative remedies regarding his alleged  mistreatment in segregation.The court also  determined that Mr. Thomas' claim regarding the  violation of sec. DOC 303.15 was barred because  he had failed to appeal the second decision of  the adjustment committee. The court also held  that, even if Mr. Thomas had not defaulted his  claim as to the DOC violation, that claim would  not be cognizable under sec. 2254 because Mr.  Thomas only lost statutory good time credits.4  Thus, the district court dismissed Mr. Thomas'  habeas petition.


16
After the district court dismissed his petition,  Mr. Thomas filed a notice of appeal and sought to  proceed in forma pauperis. The district court  refused to provide a certificate of appealability  and denied Mr. Thomas' request to proceed in  forma pauperis. A judge of this court granted the  certificate of appealability and leave to proceed  in forma pauperis.

II
DISCUSSION

17
In the district court, Mr. Thomas raised 2  claims in his habeas corpus petition. The first  claim, relating to his treatment while in  segregation, has been abandoned on appeal. Mr.  Thomas focuses instead on his second claim--  that, because the adjustment committee had  insufficient evidence to find him guilty of  "Sexual Conduct," his loss of the 90 days good  time credit violates the Due Process Clause.


18
A state prisoner like Mr. Thomas may obtain  federal habeas review of his claim only if he has  exhausted his state remedies and avoided  procedurally defaulting his claim. See 28 U.S.C.  sec. 2254(b) & (c); Schaff v. Snyder, 190 F.3d  513, 524 (7th Cir. 1999); Moore v. Parke, 148  F.3d 705, 708 (7th Cir. 1998). Therefore, for Mr.  Thomas to obtain federal habeas relief on the  merits of this claim, he first must have provided  Wisconsin's courts with a full and fair  opportunity to review it. See Breard v. Greene,  118 S. Ct. 1352, 1355 (1998) (per curiam);  Schaff, 190 F.3d at 523-24. If Mr. Thomas  procedurally defaulted or otherwise forfeited his  claim, he may obtain federal habeas relief only  upon a showing of cause and prejudice for the  default or upon a showing that a failure to grant  him relief would work a fundamental miscarriage  of justice. See Rodriguez v. Scillia, 193 F.3d  913, 917 (7th Cir. 1999); Schaff, 190 F.3d at  526; Franklin v. Gilmore, 188 F.3d 877, 882 (7th  Cir. 1999). A fundamental miscarriage of justice  occurs when "a constitutional violation has  probably resulted in the conviction of one who is  actually innocent." Murray v. Carrier, 477 U.S.  478, 496 (1986).

A.

19
There is no question in this case that Mr.  Thomas has exhausted his available judicial  remedies in Wisconsin. He appealed to the state's  intermediate appellate court, which summarily  affirmed the circuit court's decision, and to the  Supreme Court of Wisconsin, which denied review.  See O'Sullivan v. Boerckel, 119 S. Ct. 1728,  1732-33 (1999) (holding that state prisoners must  complete one full round of the state's  established appellate review system, including a  petition for discretionary review when available  by the state's highest court, before filing a  habeas petition in federal court). Therefore, the  question in this case is whether Mr. Thomas  procedurally defaulted his claim for federal  habeas purposes by not appealing the adjustment  committee's decision on remand. Relying on the  disposition of Mr. Thomas' claim in state court,  the district court dismissedMr. Thomas' habeas  petition on the ground that Mr. Thomas had  procedurally defaulted his claim under state law.  Because the district court dismissed the habeas  petition based on a legal determination, we  review that judgment de novo. See Jones v.  Bertrand, 171 F.3d 499, 500 (7th Cir. 1999).


20
In federal habeas corpus proceedings, state law  controls whether a claim has been defaulted. See  Franklin, 188 F.3d at 881. Thus, in our review of  the district court's judgment, we must look to  the adjudication of Mr. Thomas' claim by the  Wisconsin courts. Because the Court of Appeals of  Wisconsin summarily affirmed the circuit court's  judgment and incorporated it as its own, we must  look to the opinion of the state circuit court as  the basis for finding that Mr. Thomas defaulted  his claim. See Ylst v. Nunnemaker, 501 U.S. 797,  803 (1991); Liegakos v. Cooke, 106 F.3d 1381,  1385 (7th Cir. 1997); Bobo v. Kolb, 969 F.2d 391,  399 (7th Cir. 1992); Prihoda v. McCaughtry, 910  F.2d 1379, 1382-83 (7th Cir. 1990). In its  decision, the circuit court held that Mr. Thomas  could have, and should have, taken an appeal of  the adjustment committee's decision after remand  to the warden. The circuit court held that,  because he failed to take this second appeal to  the warden, Mr. Thomas could not obtain judicial  review of the adjustment committee's decision.


21
"[W]hen a state court has declined to address a  prisoner's federal claims because the prisoner  ha[s] failed to meet a state procedural  requirement," the independent and adequate state  grounds doctrine bars federal review of that  state court judgment. E.g., Coleman v. Thompson,  501 U.S. 722, 729-30 (1991); Schaff, 190 F.3d at  524; Franklin, 188 F.3d at 881. Therefore, in  those instances where a state court has found  that a prisoner has defaulted his claim under  state law, as is the case here, we are usually  bound to respect that decision. See Bobo, 969  F.2d at 399. To preclude federal habeas review,  however, the state court's decision must be both  "independent" and "adequate" to support that  court's judgment. See Coleman, 501 U.S. at 729-  30. A state court's decision is independent if  that court "actually . . . relied on the  procedural bar as an independent basis for its  disposition of the case." Harris v. Reed, 489  U.S. 255, 261-62 (1989) (quoting Caldwell v.  Mississippi, 472 U.S. 320, 327 (1985)). Whether a  ground is independent depends on state law, see  Liegakos, 106 F.3d at 1385; therefore, in order  for the state judgment to bar federal habeas  review, the last state court to render a judgment  in the case must have "clearly and expressly  state[d] that its judgment rests on a state  procedural bar," Jenkins v. Nelson, 157 F.3d 485,  491 (7th Cir. 1998) (quoting Harris, 489 U.S. at  263) (quotation marks omitted), cert. denied, 119  S. Ct. 2402 (1999).


22
A state court's finding of procedural default is  an adequate ground that would preclude federal  review only if the procedural rule applied by the  state court is "firmly established and regularly  followed." James v. Kentucky, 466 U.S. 341, 348-  51 (1984); Franklin, 188 F.3d at 882. We shall  defer to a state court's application of a  procedural rule when that rule is applied in a  "consistent and principled way," but a rule that  is "infrequently, unexpectedly, or freakishly"  applied is not an adequate state ground that bars  federal habeas review. Bobo, 969 F.2d at 399  (quoting Prihoda, 910 F.2d at 1383) (quotation  marks omitted); see also Tredway v. Farley, 35  F.3d 288, 295 (7th Cir. 1994) (per curiam), cert.  denied, 513 U.S. 1129 (1995); Lilly v. Gilmore,  988 F.2d 783, 785 (7th Cir.), cert. denied, 510  U.S. 852 (1993); Barksdale v. Lane, 957 F.2d 379,  382 (7th Cir.), cert. denied, 506 U.S. 890  (1992). Likewise, if a prisoner "could not have  been deemed to have been apprised of [therule's]  existence at the time he omitted the procedural  step," the state court's judgment is not an  adequate ground that would bar federal habeas  review. Moore, 148 F.3d at 709 (quoting NAACP v.  Alabama ex rel. Patterson, 357 U.S. 449, 457  (1958)) (internal quotation marks omitted).


23
Mr. Thomas does not challenge the independence  of the state court's ruling. It is clear that  Wisconsin's circuit court and court of appeals  both rested their judgments on state procedural  grounds.5 Instead, Mr. Thomas contends that the  ground relied upon by the state court as a basis  for default is not adequate. We therefore must  determine whether the state court applied a  firmly established and regularly followed  exhaustion requirement in a consistent and  principled way. If it did, Mr. Thomas cannot  obtain federal habeas relief on his defaulted  claim. If, as Mr. Thomas contends, the state  court imposed the exhaustion requirement in an  inconsistent, unexpected, or freakish way, we may  reach the merits of his claim because the state  court's finding of default would not meet the  independent and adequate state ground threshold.

B.
1.

24
As a general practice, Wisconsin's courts have  long required prisoners and non-prisoners alike  to exhaust available administrative remedies  before obtaining judicial review of their claims.  See, e.g., Hermann v. Town of Delavan, 572 N.W.2d  855, 859 (Wis. 1998) (applying the general  exhaustion requirement in a case involving  individual taxpayers); Jackson County Iron Co. v.  Musolf, 396 N.W.2d 323, 325 (Wis. 1986)  (corporate taxpayer); Kramer v. Horton, 383  N.W.2d 54, 58 (Wis.) (state university  professor), cert. denied, 479 U.S. 918 (1986),  and overruled on other grounds by Casteel v.  Vaade, 481 N.W.2d 476 (Wis. 1992); Nodell Inv.  Corp. v. City of Glendale, 254 N.W.2d 310, 315  (Wis. 1977) (property owners); State ex rel.  Braun v. Krenke, 429 N.W.2d 114, 118 (Wis. Ct.  App. 1988) (prisoner). In Wisconsin, the  exhaustion of administrative remedies rule is "a  doctrine of judicial restraint which the  legislature and the courts have evolved in  drawing the boundary line between administrative  and judicial spheres of activity." Nodell, 254  N.W.2d at 315. The general exhaustion rule is a  rule of "policy, convenience and discretion,"  Hermann, 572 N.W.2d at 860 (quoting Association  of Career Employees v. Klauser, 536 N.W.2d 478,  484 (Wis. Ct. App. 1995)), but "where  administrative action has taken place, and a  statute sets forth a specific procedure for  review of that action and court review of the  administrative decision, the statutory remedy is  exclusive and the parties cannot seek judicial  review of the agency decision through other  means," Hermann, 572 N.W.2d at 859; see also  Jackson County, 396 N.W.2d at 325; State ex rel.  First Nat'l Bank v. M & I Peoples Bank of Coloma,  263 N.W.2d 196, 202 (Wis. 1978).


25
In 1995, Wisconsin's legislature enacted a  provision aimed specifically at prisoner  litigation; the provision codified the general  exhaustion of administrative remedies requirement.  See 1995 Wis. Act 27, sec. 7141g; Moore v.  Stahowiak, 569 N.W.2d 711, 713 (Wis. Ct. App.  1997). At the time pertinent to this litigation,  the statute read in full:


26
No prisoner, as defined in sec. 301.01(2), may  commence a civil action or special proceeding  against an officer, employe or agent of the  department of corrections in his or her official  capacity or asan individual for acts or  omissions committed while carrying out his or her  duties as an officer, employe or agent or while  acting within the scope of his or her office,  employment or agency until the person has  exhausted any administrative remedies that the  department of corrections has promulgated by  rule.


27
Wis. Stat. sec. 801.02(7) (West Supp. 1996).6  According to Wisconsin's courts, sec. 801.02(7)  "specifically requires that an inmate exhaust all  administrative remedies before resorting to  bringing a civil action against a DOC official."  Moore, 569 N.W.2d at 713. Since sec. 801.02(7)  first appeared on Wisconsin's books, the state's  appellate courts have required strict adherence  to the exhaustion requirement and have uniformly  required inmates to exhaust available  administrative remedies before the court would  afford the inmates judicial review of claims  covered by the statute. See State ex rel. Frasch  v. Cooke, 592 N.W.2d 304, 305-06 (Wis. Ct. App.  1999) (holding that an inmate must exhaust  available administrative remedies promulgated by  the DOC with regard to alleged procedural errors  before the inmate can seek judicial review for  any of his claims); State ex rel. Smith v.  McCaughtry, 586 N.W.2d 63, 68 (Wis. Ct. App.  1998) (holding that inmates must plead and prove  exhaustion of remedies for all claims, procedural  and non-procedural, to obtain judicial review);  State ex rel. Ortega v. McCaughtry, 585 N.W.2d  640, 645-46 (Wis. Ct. App. 1998) (reaching the  merits of an inmate's certiorari action because  the inmate had exhausted his administrative  remedies); Moore, 569 N.W.2d at 713-14 (holding,  on the authority of sec. 801.02(7), that an  inmate must exhaust any available administrative  remedy before seeking judicial review).7


28
For inmates charged with a major violation of  DOC regulations, the DOC has promulgated a  hearing and appeal procedure; this procedure can  be found in the Wisconsin Administrative Code at  sec. DOC 303.76. When proceeding under this  regulation, the prison's adjustment committee  first holds a hearing to take evidence regarding  the inmate's alleged infraction; then the  committee renders its decision. See Wis. Admin.  Code sec. DOC 303.76(5) & (6). An inmate is  entitled to appeal the adjustment committee's  decision to the prison's warden, and the warden's  decision is final. See Wis. Admin. Code sec. DOC  303.76(7). By the terms of sec. 801.02(7), an  inmate may seek judicial review only after he has  completed the administrative process outlined in  sec. DOC 303.76. See Wis. Stat. sec. 801.02(7);  Moore v. Stahowiak, 569 N.W.2d at 713.8


29
There is no question that, as a general  proposition, Wisconsin law requires exhaustion of  administrative remedies before the state's courts  will review an administrative claim such as the  one brought by Mr. Thomas. Indeed, Mr. Thomas  acknowledges the general rule in Wisconsin that  administrative remedies must be exhausted before  judicial review can be sought. He also concedes  that in his case "administrative exhaustion is  obtained by appealing from the disciplinary board  to the prison warden." Appellant's Br. at 9  (citing Wis. Admin. Code sec. DOC 303.76). But,  Mr. Thomas submits, Wisconsin's general  exhaustion rule is subject to an exception:  Exhaustion of administrative remedies is not  required if to do so would be futile. According  to Mr. Thomas, he is entitled to federal habeas  review on his claim despite the determination by  Wisconsin's courts that he has procedurally  defaulted this claim under state law because the  Wisconsin courts failed to apply the futility  exception to his case. Had the Wisconsin courts  applied the futility exception fairly and  consistently to his case, Mr. Thomas submits, his  failure to appeal the adjustment committee's  decision on remand would be excused.


30
In Mr. Thomas' view, the so-called "futility  exception" applies if he can show that "the  administrative agency would not provide him with  relief, even if he pursued the available remedy."  Appellant's Br. at 10. Specifically, with regard  to the claim he now brings to this court on  habeas review, Mr. Thomas argues that it would  have been futile for him to take a second appeal  to the warden because the warden already had  decided his case. Therefore, Mr. Thomas contends,  the state circuit court erred in dismissing his  certiorari action on the ground that he had  procedurally defaulted. In Mr. Thomas' view,  nothing could have been gained by his taking a  second appeal to the warden.


31
The State, on the other hand, contends that,  although the state's courts have recognized a  general futility exception, Wisconsin law  obligates prisoners to exhaust their  administrative remedies before filing any action  in state court. The State primarily relies on the  language of sec. 801.02(7) and the opinion of the  Court of Appeals of Wisconsin in Moore v.  Stahowiak, 569 N.W.2d 711 (Wis. Ct. App. 1997).


32
Although sec. 801.02(7) requires inmates to  exhaust administrative remedies, the provision  does not eliminate expressly the common law  futility exception that predated the statute.  Because statutes in derogation of the common law  are read narrowly in Wisconsin, see Grube v.  Daun, 563 N.W.2d 523, 527 (Wis. 1997) ("A statute  should not be construed as changing the common  law unless the intent to cause such a change is  clearly expressed in the statute."), we cannot  say with any certainty that the futility  exception had been eliminated by sec. 801.02(7).  Moreover, one case from the Court of Appeals of  Wisconsin provides some support for the view that  the futility exception was not eliminated by the  passage of the statute. In Smith, when reviewing  a certiorari proceeding brought by a prisoner,  the Court of Appeals of Wisconsin wrote: "Failure  to plead exhaustion of remedies, where they are  not shown to be futile, is fatal to a complaint."  586 N.W.2d at 65.9

2.

33
Whether the futility exception in Wisconsin for  prisoner litigation survives sec. 801.02(7) is a  question which the Supreme Court of Wisconsin no  doubt will resolve in due course. It need not be  resolved here in order to decide the case before  us. Even assuming, arguendo, that the futility  exception is still in effect inprisoner cases,  Mr. Thomas could not benefit from it. This  exception would not excuse Mr. Thomas' failure to  appeal the adjustment committee's second decision  to the warden.


34
The state circuit court, although never  expressly mentioning the possibility of a  futility exception, impliedly rejected Mr.  Thomas' argument that a second appeal would have  been futile. That court identified at least one  issue that it believed should have been raised by  Mr. Thomas on a second appeal to the warden: the  committee's apparent reliance on a non-existent  regulation as the basis for the committee's  decision. Mr. Thomas argues that the issue  identified by the circuit court is  "hypertechnical" and could not serve as a  reasonable basis to require a second appeal. On  this record, we cannot accept that  characterization of the Wisconsin court's  estimation of the situation. Not only did the  adjustment committee rely on a non-existent  regulation, but it did so in the context of  finding Mr. Thomas guilty of attempting to engage  in "Sexual Conduct"--rather than actually  committing the substantive violation. Mr. Thomas  had been charged with the substantive violation,  not attempt. Under Wisconsin's disciplinary code,  the attempt and the substantive offense are  charged separately and separate findings entered  for each. See Wis. Admin. Code sec. DOC 303.06.  Under these circumstances, we cannot say that the  circuit court acted "unexpectedly" or  "freakishly." The circuit court's insistence on  exhaustion is certainly consistent with the  general rule that any available administrative  remedy must be pursued if adequate relief could  be obtained through that remedy.


35
We also note that Mr. Thomas could not benefit  from Wisconsin's futility exception because he  cannot demonstrate that his potential claim had  the characteristics that would entitle him to the  benefit of that exception. Wisconsin's courts  have excused a failure to exhaust when "the  reasons supporting the exhaustion rule are  lacking." Nodell, 254 N.W.2d at 316. As explained  in Nodell, "[t]he premise of the exhaustion rule  is that the administrative remedy (1) is  available to the party on his initiative, (2)  relatively rapidly, and (3) will protect the  party's claim of right." Id. at 315. Wisconsin's  courts have explained that the statutory method  for obtaining review of administrative decisions  is the exclusive remedial method in all but  "exceptional cases." See, e.g., First Nat'l Bank,  263 N.W.2d at 204. For example, Wisconsin's  courts have held it to be an "exceptional case"  and have excused a failure to exhaust when  "statutory notice was not given and the aggrieved  party did not receive actual notice until the  time for appeal had expired," id. at 204, or if  the plaintiff can establish that the  administrative process "either cannot or will not  afford [the plaintiff] adequate relief," Braun,  429 N.W.2d at 118 (quoting Kramer, 383 N.W.2d at  60).10 The futility exception also has been  applied when the administrative agency simply has  no power to grant the relief requested. See  Tratz, 550 N.W.2d at 142-43; Town of Eagle v.  Christensen, 529 N.W.2d 245, 252 (Wis. Ct. App.  1995).


36
Mr. Thomas has not established that the futility  exception applies to him under any of these  formulations. To the contrary, he merely asserts  that he does not believe anything would have been  gained if he had asked the warden to hear his  claim again. This assertion is not enough to meet  his burden under Wisconsin law. See Braun, 429  N.W.2d at 118 ("To escape the exhaustion  requirement, [the petitioner] must prove that  [the agency] either cannot or will not afford her  adequate relief." (internal quotation marks  omitted)); Kramer, 383 N.W.2d at 60 ("To escape  the exhaustion requirement . . . [the petitioner]  basically must prove thatthe administrative body  either cannot or will not afford him adequate  relief.").


37
Because the circuit court applied the general  exhaustion of administrative remedies requirement  in a manner consistent with both sec. 801.02(7)  and a host of Wisconsin cases, we cannot say that  the exhaustion requirement was unfairly or  inconsistently applied to Mr. Thomas. Even  assuming, arguendo, that the futility doctrine  remains viable for prisoner litigation in  Wisconsin's courts, Mr. Thomas has not  demonstrated that the circuit court has acted  arbitrarily, unexpectedly, or freakishly.

Conclusion

38
The state court determination that Mr. Thomas  procedurally defaulted his claim by not  exhausting his administrative remedies was an  adequate state law ground that precludes federal  review of the merits of Mr. Thomas' habeas  petition. Before this court, he makes no  assertion that he can demonstrate cause and  prejudice or a fundamental miscarriage of  justice. Accordingly, we must affirm the judgment  of the district court.

AFFIRMED


1
 Section DOC 303.15 defines "Sexual Conduct" in  these terms:
(1)  Any inmate who intentionally does any of  the following is guilty of an offense:
(a)  Has sexual intercourse, as defined in s.  DOC 303.02 (16), with another person;
(b)  Has sexual contact, as defined in s. DOC  303.02(15), with another person;
(c)  Requests, hires or tells another person to  have sexual intercourse or sexual contact;
(d)  Exposes his or her intimate parts to  another person for the purpose of sexual arousal  or gratification, or for exhibitionistic  purposes; or
(e)  Has contact with or performs acts with an  animal that would be sexual intercourse or sexual  contact if with another person.
(2)  Lack of consent is not an element of the  offense of sexual conduct.
Wis. Admin. Code sec. DOC 303.15. According to  regulations, the term "sexual contact" referenced  in sec. DOC 303.15(b) means:
(a)  Kissing;
(b)  Handholding;
(c)  Touching by the intimate parts of one  person to any part of another person. In this  subsection, "intimate parts" means breast, penis,  buttocks, scrotum, or vaginal area, whether  clothed or unclothed; or
(d)  Any touching by any part of one person or  with any object or device of the intimate parts  of another person.    Wis. Admin. Code sec. DOC 303.02(15).


2
 The entire text of Wis. Admin. Code sec. DOC  303.76 is appended to this opinion.


3
 The Wisconsin circuit court that took up this  matter before Mr. Thomas brought his federal  habeas petition found the word "Evidence" to be  indecipherable. Mr. Thomas submits that the word  is "Evidence."


4
 Although we need not decide this issue in light  of our holding, we pause to note briefly that the  district court erred in its conclusion that the  loss of prison good time credit is not cognizable  under 28 U.S.C. sec. 2254. Our prior cases are  clear on this; prisoners have a protected liberty  interest in their good time credit. See, e.g.,  Sweeney v. Parke, 113 F.3d 716, 718 (7th Cir.  1997) (holding that a prisoner's loss of good  time credit is a "deprivation of a liberty  interest protected by the Due Process Clause");  Meeks v. McBride, 81 F.3d 717, 719 (7th Cir.  1996) (same).


5
 In reaching its decision, the circuit court  relied solely on state law dealing with  Wisconsin's administrative exhaustion  requirement. The Court of Appeals of Wisconsin  also rested solely on state law grounds, as  evidenced by that court's explanation of its  decision: "We . . . conclude that the circuit  court's memorandum decision and order identifies  and applies the proper legal standards to the  relevant facts and reaches the correct  conclusion." R.3.


6
 In 1997, sec. 801.02(7) was amended and  renumbered as sec. 801.02 (7)(b). It now reads:
No prisoner may commence a civil action or  special proceeding, including a petition for a  common law writ of certiorari, with respect to  the prison or jail conditions in the facility in  which he or she is or has been incarcerated,  imprisoned or detained until the person has  exhausted all available administrative remedies  that the department of corrections has  promulgated by rule or, in the case of prisoners  not in the custody of the department of  corrections, that the sheriff, superintendent or  other keeper of a jail or house of correction has  reduced to writing and provided reasonable notice  of to the prisoners.
Wis. Stat. sec. 801.02(7)(b) (West Supp. 1999).


7
 Tratz v. Zunker, 550 N.W.2d 141, 142-43 (Wis. Ct.  App. 1996), allowed judicial review of a prisoner  petition. Although acknowledging the existence of  an exhaustion doctrine, the court did not cite  explicitly sec. 801.02(7), perhaps because, in  all likelihood, its effective date made the  subsection inapplicable in that case. In any  event, the Court of Appeals of Wisconsin went on  to hold that exhaustion was not required because,  with regard to the particular prisoner complaint  at issue, there were no administrative remedies  to exhaust.


8
 Under more recent revisions of sec. 801.02(7) and  DOC regulations, inmates are now required to seek  review of procedural errors in the hearing  process through the Inmate Complaint Review  System before they may turn to Wisconsin's  courts. Because these revisions took effect after  Mr. Thomas sought judicial relief from the  circuit court, these new requirements do not  apply to Mr. Thomas' claim.


9
 Tratz might also lend support to the view that  the futility exception to the exhaustion doctrine  in prisoner cases is still viable in Wisconsin.  See 550 N.W.2d at 142-43. However, as we have  noted earlier, see supra note 7, it is not clear  that the Court of Appeals of Wisconsin regarded  sec. 801.02(7) to be applicable in that case.


10
 A plaintiff must demonstrate that an  administrative agency cannot or will not afford  relief in the sense that "the reviewing agency is  inherently biased," or "the agency is unable or  unwilling to hear the claim," or "the agency is  delaying review unnecessarily." Kramer, 383  N.W.2d at 60.


APPENDIX

39
DOC 303.76 Hearing procedure for major  violations. (1)  Notice.  When an inmate is  alleged to have committed a major violation and  the security director or designee has reviewed  the conduct report pursuant to s. DOC 303.67, a  copy of the approved conduct report shall be  given to the inmate within 2 working days after  its approval. The conduct report shall inform the  inmate of the rules which he or she is alleged to  have violated, the potential penalties or other  potential results that may be imposed, including  but not limited to removal from work release, and  that he or she may exercise the right to a due  process hearing or may waive this right in  writing. The inmate shall be informed that if he  or she waives the right to a formal due process  hearing, he or she will be given an informal  hearing under s. DOC 303.75. The inmate shall be  informed that if a formal due process hearing is  chosen, the inmate may present oral, written,  documentary and physical evidence, and evidence  from voluntary eyewitnesses in accordance with  this section and s. DOC 303.81; that he or she  has a right to the assistance of a staff advocate  in accordance with this section and s. DOC  303.79; that the adjustment committee may permit  direct questions or require the inmate or his or  her advocate to submit questions to the  adjustment committee to be asked of the witness;  that repetitive, disrespectful and irrelevant  questions are forbidden; and that the inmate may  appeal the finding and disposition of the  adjustment committee in accordance with sub. (7).  The inmate shall also be informed that if he or  she refuses to attend a hearing, the hearing may  be conducted without the inmate being present.


40
(2)  Waiver.  An inmate may waive the right to  a due process hearing in writing at any time. If  the inmate waives a due process hearing, the  conduct report shall be disposed of under the  hearing procedures for minor violations, s. DOC  303.75. A waiver does not constitute an admission  of the alleged violation. A waiver may not be  retracted without the security director's  approval.


41
(3)  Time limits.  A due process hearing shall  be held no sooner than 2 working days or later  than 21 days after the inmate receives a copy of  the conduct report and hearing notice. An inmate  may waive these time requirements in writing if  the security director agrees to the waiver. The  inmate may request additional time to prepare for  the hearing, and the security director shall  grant the request unless there is a good reason  to deny it.


42
(4)  Place.  The due process hearing may take  place at the institution where the alleged  conduct occurred, at a county jail or at an  institution to which an inmate has been  transferred.


43
(5) Hearing. The adjustment committee, as  defined in s. DOC 303.82, shall conduct the due  process hearing. If an inmaterefuses to attend  the hearing or disrupts the hearing, the hearing  may be conducted without the inmate being  present. At a due process hearing, the conduct  report shall be read aloud and all witnesses for  or against the accused, including the accused  himself or herself and the staff member who wrote  the conduct report, shall have a chance to speak.  The adjustment committee may require that  physical evidence be offered. The adjustment  committee may permit direct questions or require  the inmate or his or her advocate to submit  questions to the adjustment committee to be asked  of the witness. Repetitive, disrespectful or  irrelevant questions are forbidden.


44
(6)  Decision. After the hearing the adjustment  committee shall deliberate in private,  considering only the evidence presented to it and  the inmate's records. The institution is required  to establish guilt by a preponderance of the  evidence. The adjustment committee may find the  inmate guilty or not guilty. A committee of 3 may  find the inmate guilty if at least 2 of the 3  members find by a preponderance of the evidence  that he or she is guilty, and if 2 agree upon a  sentence, may sentence the inmate. A committee of  2 or of one may find the inmate guilty if the  committee members unanimously find by a  preponderance of the evidence that the inmate is  guilty and may sentence the inmate if they are  unanimous as to the sentence. If a sentence is  not agreed upon, the matter shall be referred to  the superintendent for decision. The committee  shall then recall the accused and his or her  advocate, if any, and announce its decision or  the decision of the superintendent. The accused  and his or her advocate, if any, shall each  receive a written copy of the decision.


45
(7)  Appeal.  (a) Any time within 10 days after  a due process hearing, an inmate who is found  guilty may appeal the decision or the sentence,  or both, to the superintendent.


46
(b)  The superintendent shall review all records  and forms pertaining to the appeal and make his  or her decision within 10 days following receipt  of the request.


47
(c)  The superintendent's decision shall be to:


48
1.  Affirm the adjustment committee's decision  and the sentence;


49
2.  Affirm the adjustment committee's decision  but reduce the sentence in type or quality;


50
3.  Reverse the adjustment committee's decision.  In this case, all records of the decision shall  be removed from all offender-based files. Records  may be kept for statistical purposes only; or


51
4.  Return the case to the adjustment committee  for further consideration.


52
(d)  The superintendent's decision is final.

