                                In the
    United States Court of Appeals
                   For the Seventh Circuit
                            ____________

No. 01-3784
DAVID PANNELL,
                                                 Petitioner-Appellant,
                                   v.

DANIEL R. MCBRIDE,
SUPERINTENDENT,
                                                Respondent-Appellee.
                            ____________
               Appeal from the United States District Court
        for the Northern District of Indiana, South Bend Division.
                    No. 01 C 151—Allen Sharp, Judge.
                            ____________
             Œ
SUBMITTED SEPTEMBER 11, 2002—DECIDED SEPTEMBER 30, 2002
                            ____________


    Before COFFEY, EASTERBROOK, and MANION, Circuit Judges.
  Per curiam. A Wabash Valley Correctional Facility
conduct adjustment board found Indiana inmate David
Pannell guilty of possessing a deadly weapon and sanc-
tioned him with two years’ disciplinary segregation and
a demotion in credit-earning class. After exhausting his


Œ
   After an examination of the briefs and the record, we have
concluded that oral argument is unnecessary. Thus, the appeal
is submitted on the briefs and the record. See Federal Rule of
Appellate Procedure 34(a)(2).
2                                              No. 01-3784

state remedies, Pannell sought a writ of habeas corpus
in federal district court under 28 U.S.C. § 2254. The court
denied his petition and Pannell appeals. We vacate and
remand.
  On October 14, 1999, Sergeant Elofson, Sergeant Cassidy,
and Correctional Officer Counterman searched Pannell’s
cell. During this search Elofson disassembled a television
bearing Pannell’s name and prisoner number and dis-
covered three crude knives, marijuana, and tobacco. The
next day prison officials charged Pannell with three in-
fractions, including possession of a dangerous weapon.
Pannell pleaded not guilty, claiming that another inmate
had loaned him the television and that he was unaware
of its contents. According to Pannell the television’s ex-
terior was sealed when he received it and remained that
way until the October 14 search. The conduct board nev-
ertheless found him guilty after an October 26 hearing.
  Pannell filed a verified habeas corpus petition in Feb-
ruary 2001, asserting that the conduct board was biased
against him and that Indiana violated his due process
rights by refusing his request for documents and his re-
quest to call witnesses. Pannell declared under penalty of
perjury that he had submitted to the screening officer
written requests for documents and witnesses a week
before the hearing, but that his requests were denied. The
district court then ordered Indiana to show cause why the
court should not issue the writ. Indiana filed a response
to the court’s order, including a memorandum and sup-
porting exhibits requesting that the petition be denied.
After the court denied his request for discovery, Pannell
submitted his own memorandum and supporting ex-
hibits requesting that his petition be granted. A week later
the court denied the petition, concluding that Pannell
had failed to demonstrate bias and that there was no evi-
No. 01-3784                                                      3

dence in the record that he timely requested documents
and witnesses.
   On appeal Pannell iterates that the conduct board was
biased and that prison authorities violated his due proc-
ess rights by stymying his efforts to obtain documents
and call witnesses. Before examining the merits of his
petition, however, we must restate our standard of review.
Both sides assert that we examine the propriety of the
prison’s disciplinary proceeding under the deferential lens
prescribed by 28 U.S.C. § 2254(d)(1). Under that pro-
vision federal courts may grant habeas corpus relief only
if a state court’s adjudication on the merits resulted in a
decision that “was contrary to, or involved an unreason-
able application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1); Washington v. Smith, 219 F.3d 620, 627
(7th Cir. 2000). But as this court has stated several times,
a prison disciplinary board is not a “court,” and Indiana
does not provide for judicial review of conduct board
determinations. Piggie v. McBride, 277 F.3d 922, 925-26
(7th Cir. 2002); White v. Ind. Parole Bd., 266 F.3d 759, 765-
66 (7th Cir. 2001). As a result, § 2254(d)(1) does not apply
                                                1
in this case and our review is de novo. See id.


1
  Indiana has in the past and here continues to contend that
§ 2254(d)(1) applies, and in doing so either purposely or care-
lessly ignores this court’s decisions in Piggie and White. Perhaps
the State wishes to preserve for a future appeal to the United
States Supreme Court its contention that § 2254(d)(1) should
apply to state prison disciplinary proceedings. If so, it is still
obligated to disclose to the court controlling but adverse prece-
dent which had not been cited by its pro se adversary. See ABA
Model Rules of Professional Conduct Rule 3.3(a)(3) (2000). Any
                                                     (continued...)
4                                                   No. 01-3784

  Pannell first contends that the conduct board was biased.
Although he had a right to a disciplinary hearing con-
ducted by an impartial decision maker, see Wolff v. Mc-
Donnell, 418 U.S. 539, 571 (1974), his allegation of partiality
was insufficient to support a disqualification. Pannell as-
serts that the conduct board was biased because the
same members presided over his separate disciplinary
proceedings arising from the discovery of marijuana and
tobacco in the television. He complains that the conduct
board had “prior knowledge of the factual events” of the
October 14 search, but does not explain how this knowl-
edge prejudiced his case. Moreover, the conduct board
members had no involvement in the underlying factual
events of the incident. See Litecky v. United States, 510
U.S. 540, 551 (1994); Gaither v. Anderson, 236 F.3d 817, 820
(7th Cir. 2001). Pannell thus failed to demonstrate bias.
  Pannell also claims that prison authorities denied him
due process by not allowing him to present documentary
evidence and call witnesses in his defense. The Due Process
Clause gives inmates a right to call witnesses and pre-
sent documentary evidence at a hearing that results in
an extension of their incarceration time by demoting
their credit-earning class. Montgomery v. Anderson, 262
F.3d 641, 642 (7th Cir. 2001). But the right to present evi-
dence is qualified—prison officials may exclude evidence
from an inmate’s hearing to ensure institutional safety or
correctional goals. Wolff, 418 U.S. at 566. Moreover, pris-
oners do not have the right to call witnesses whose tes-
timony would be irrelevant, repetitive, or unnecessary. Id.;
Forbes v. Trigg, 976 F.2d 308, 317-18 (7th Cir. 1992).


1
  (...continued)
failure to do so in the future by the Indiana Attorney General and
his deputy attorneys will expose them to sanctions.
No. 01-3784                                                5

   The district court rejected Pannell’s complaints because
in its view there was nothing in the record demonstrat-
ing that Pannell requested the specified documents and
witnesses. Pannell states that he asked for copies of his
commissary history and a statement from his caseworker
attesting that the prison had no record of another in-
mate transferring ownership of the television to him. But
whether he requested these documents is of no matter
because they concern a point that was not in dispute.
Both parties agreed that he did not acquire the television
through formal prison channels (Pannell claims he bor-
rowed the television; a prison caseworker stated that it
must have been stolen), and the requested documents
would only have underscored that fact. Pannell fails to
demonstrate how these documents would have shed
light on whether he possessed the weapons, and, accord-
ingly, the failure to produce them could not have harmed
him regardless of whether he requested production.
  But Pannell’s assertion that he was denied the right to
call witnesses is a different story. He asserts that on Octo-
ber 19 he submitted a written request asking Counterman,
Cassidy, and Correctional Officer Moody to testify at his
hearing. Pannell wanted Moody to testify that he searched
Pannell’s cell ten days earlier and observed an intact
security seal on the television, but such testimony would
have been irrelevant because Pannell could have con-
cealed the weapons in the television in the interim be-
tween the two searches. Still, Counterman and Cassidy
might have aided Pannell’s defense. He wanted both to
testify that they observed Elofson break the security seal
during the October 14 search, testimony that would have
corroborated his statement that he never opened the
television and was unaware of its contents. Indiana coun-
ters that there is no indication from the record that either
officer had personal knowledge—a patently frivolous as-
6                                               No. 01-3784

sertion given that both were present at the search. And we
do not know from this record when the security seal was
placed on the television, if Pannell was authorized to
have another inmate’s television in his cell, whether the
security seal can be broken and reapplied, or if possession
of a deadly weapon is a strict liability offense. Consequent-
ly, we cannot conclude that testimony from Counterman
and Cassidy would have been irrelevant because it might
have buttressed a potentially valid defense that he was
unaware of the television’s contents.
  Moreover, the district court’s conclusion that Pannell did
not make a timely request for witnesses was premature
and not supported by the record. Pannell’s verified habeas
corpus petition states that he submitted to the screening
officer a written request to have Counterman and Cassidy
testify. Indiana has not disputed this assertion, instead
claiming (incorrectly) that there was no evidence in the
record that he made the requests. Moreover, Pannell’s
assertion that he requested the witnesses is supported by
a statement submitted by Counterman indicating that
Pannell had requested him to appear and testify. But this
statement did not address the “security seal” issue, and
Indiana gave no reason why Counterman could not appear
at the hearing. See Ponte v. Real, 471 U.S. 491, 497 (1985)
(prison authorities ordinarily must give some explana-
tion for disallowing live witness testimony). Consequently,
there is evidence that Pannell requested these witnesses
to appear and testify. But because the court denied the
petition only a few days after Pannell submitted his re-
quest to grant it, Indiana has not yet been afforded the
opportunity to meet Pannell’s evidence with its own.
  The judgment of the district court is VACATED and the
case is REMANDED for further proceedings. On remand
the court should allow Indiana to respond to Pannell’s
No. 01-3784                                              7

submission before deciding whether an evidentiary hear-
ing is necessary.

A true Copy:
       Teste:

                        _____________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                  USCA-97-C-006—9-30-02
