                                In the

       United States Court of Appeals
                  For the Seventh Circuit
                      ____________________
No. 14-3395
CHARLES DONELSON,
                                                 Petitioner-Appellant,

                                  v.

RANDY PFISTER,
                                                Respondent-Appellee.
                      ____________________

          Appeal from the United States District Court for the
                     Central District of Illinois.
             No. 13-CV-1523 — Joe Billy McDade, Judge.
                      ____________________

    SUBMITTED MAY 26, 2015 — DECIDED JANUARY 28, 2016
                 ____________________

   Before POSNER, ROVNER, and HAMILTON, Circuit Judges.
   HAMILTON, Circuit Judge. In this appeal we address an
unusual state court ruling denying a prisoner’s challenge to
discipline that deprived him of liberty, he says, without hav-
ing an opportunity to call supporting witnesses and to offer

    After examining the briefs and record, we have concluded that oral
argument is unnecessary. The appeal has been submitted on the briefs
and record. See Fed. R. App. P. 34(a)(2)(C).
2                                                 No. 14-3395

supporting evidence. The state appellate court denied relief
without reaching the merits. The court’s reason, not men-
tioned at any earlier stage of the case, was that the prisoner
had not followed the instruction on the paper form for re-
questing witnesses or evidence to tear off the top portion of
the form. As we explain below, this novel ruling carried bu-
reaucratic concerns about paperwork to an unreasonable ex-
treme and does not bar federal consideration of the prison-
er’s constitutional claim on the merits.
    Appellant Charles Donelson, an Illinois prisoner, lost a
year of accumulated good time as punishment for two inci-
dents involving the same guard. After unsuccessfully chal-
lenging that punishment in state court, Donelson filed in the
federal district court a petition for a writ of habeas corpus
under 28 U.S.C. § 2254. Donelson claims that the prison ad-
justment committee violated his right to due process by dis-
ciplining him without adequate evidence and by not allow-
ing him to call witnesses or to have access to exculpatory
video and audio recordings. The district court ruled against
Donelson, partly on the merits and partly on a procedural
ground. We agree with the partial merits ruling but disagree
with the procedural ruling. We therefore vacate the judg-
ment and remand for further proceedings.
    The two incidents both involved guard Jimmie Watson
and occurred on the same day in July 2011. Watson, who
wrote one of two reports accusing Donelson of misconduct,
said that he caught Donelson trying to leave his prison wing
and ordered him back to his cell because he was “not
properly dressed to leave the wing and did not have permis-
sion to leave.” But at first, Watson said, Donelson ignored
instructions to show his inmate identification card and to
No. 14-3395                                                 3

move away from the door to the wing. And when he did fi-
nally comply, Watson added, Donelson muttered, “I’ll fix
you, I’ll have your job, bitch.”
    An hour later Donelson and Watson had their second
confrontation. Matthew Lindsey, the guard who wrote the
other incident report, alleged that he saw Donelson step
around a closing door, evade two nearby guards, and run
straight at Watson. According to Lindsey, Donelson punched
Watson in the face several times with a closed fist before the
other guards could intervene. Even then, Lindsey said,
Donelson kicked and jerked his arms to avoid being re-
strained.
    Donelson has consistently disputed both of the guards’
reports. In a written statement submitted to the prison ad-
justment committee and attached to his § 2254 petition, Do-
nelson asserted that he was leaving his wing with permis-
sion, that he presented his identification card to Watson
when asked, that he never refused a command to move
away from the door to the wing, and that he never said any-
thing offensive to Watson. Video from a surveillance camera
would confirm his account, said Donelson in his written
statement. As for the alleged assault an hour later, Donelson
asserted that Watson attacked him. Watson, he said, had
been threatening him for months and during their earlier en-
counter had warned, “I should kick your ass.” When he was
later called to a meeting with Watson, Donelson continued,
he expected a lieutenant to be present as well. Instead, Wat-
son started throwing punches. In his statement Donelson
said that he ran for the door because another guard who was
present would not intervene. At some point he tried using an
emergency telephone to request help. Again Donelson add-
4                                                 No. 14-3395

ed that video surveillance and the recording of his telephone
call would back his version of events.
    After these incidents Donelson was charged with unau-
thorized movement within the prison, disobeying orders,
insolence, and assaulting Watson. He was given copies of the
incident reports that Watson and Lindsey had written using
a standard form.
    The form explains that inmates may call witnesses and
present physical evidence at disciplinary hearings. At the
bottom of the form, below a dotted line, is space for the
names of two witnesses and a single line to describe their
anticipated testimony. Above the dotted line, inmates are
told that, if they want to call witnesses, they must name
those witnesses “in advance of the hearing” and “specify
what they could testify to by filling out the appropriate
space on this form, tearing it off, and returning it to the Ad-
justment Committee.” The form says nothing about physical
evidence, above or below the line.
    On Watson’s incident report, Donelson asked for the vid-
eo from the “R1 B Wing Camera” and named as witnesses
“C/O Cox” and “I/M Leamon,” a guard and inmate who,
Donelson says, witnessed the first incident with Watson. On
Lindsey’s incident report, Donelson again asked for the vid-
eo from the “R1 B Wing Camera” along with the recording
of his phone call (which he identified with a number).
   But Donelson then took action that the state appellate
court deemed fatal to his claim. Rather than detaching and
submitting just the bottom portion of the incident reports,
Donelson made copies for himself and then submitted the
entire pages to the adjustment committee. There is no indica-
No. 14-3395                                                     5

tion that his submissions were refused, returned, or discard-
ed because they included the portions above the dotted line.
According to Donelson, when he asked at the disciplinary
hearing about his witnesses and physical evidence, the
committee chair told him, “We’ll get to that,” but the re-
quested physical evidence and witnesses were never pro-
duced. No one gave as a reason that his written requests
were not cut on the dotted line.
    The adjustment committee found Donelson guilty and, in
addition to other punishments, revoked a year of his good
time. The deprivation of a statutory right to credit toward a
prisoner’s sentence is a deprivation of liberty that requires
due process of law. E.g., Meeks v. McBride, 81 F.3d 717, 719
(7th Cir. 1996), citing Wolff v. McDonnell, 418 U.S. 539, 557
(1974); Jackson v. Carlson, 707 F.2d 943, 946 (7th Cir. 1983). The
committee’s “Summary Report” drew heavily from Watson’s
and Lindsey’s incident reports in the section titled “Basis for
Decision.” The committee wrote, “No Witness Requested” in
the section reserved for identifying the hearing witnesses.
No mention was made of physical evidence.
    After exhausting his administrative remedies, Donelson
filed a petition for a writ of mandamus in an Illinois trial
court. See 735 ILCS 5/14-101 to 5/14-109. That’s the estab-
lished means for an Illinois inmate to challenge in court a
disciplinary decision and is also a prerequisite for Illinois
prisoners challenging disciplinary actions in federal court by
bringing a § 2254 petition in federal court. See McAtee v.
Cowan, 250 F.3d 506, 508 (7th Cir. 2001) (noting that prisoners
ordinarily must exhaust available state remedies, and com-
paring Indiana, which has no state judicial review for prison
discipline, to Illinois and Wisconsin, which do). As in his lat-
6                                                    No. 14-3395

er federal petition, Donelson contended that the prison ad-
justment committee had violated his right to due process by
relying on inadequate evidence and refusing his requests to
call witnesses and to submit the video and audio recordings.
    The state trial court rejected Donelson’s petition “for the
reasons stated” in the respondent’s motion to dismiss. None
of those arguments had anything to do with Donelson ask-
ing for witnesses and physical evidence on forms that were
not cut on the dotted line. Nor did the respondent make that
argument when Donelson appealed the state trial court’s de-
cision.
    Instead, the state appellate court on its own initiative first
faulted Donelson for not following the instruction to detach
and submit only the bottom portion of the form. Donelson v.
Godinez, No. 4-12-0795, 2013 WL 3325003, at *4 (Ill. App.
2013). On that basis the state appellate court, which did not
distinguish between witnesses and physical evidence, rea-
soned that Donelson was not entitled to relief “on this issue”
because he “failed to follow Department rules in requesting
witnesses.” Id. As for the evidence supporting the adjust-
ment committee’s decision, the appellate court concluded
that the guards’ reports underlying that decision were “suf-
ficiently detailed” to satisfy due process. Id. The Supreme
Court of Illinois denied review. 996 N.E.2d 11 (Ill. 2013).
    In denying Donelson’s federal petition, the district court
first found that relief under § 2254 is not available regarding
the alleged denial of Donelson’s right to present evidence.
The respondent insisted, and the district court agreed, that
the Illinois appellate court had rejected this part of the case
based on an “adequate and independent state law ground.”
The district court then concluded that Donelson had not sim-
No. 14-3395                                                  7

ilarly defaulted his challenge to the strength of the evidence,
but that the state court’s application of the “some evidence”
standard was reasonable. See Superintendent v. Hill, 472 U.S.
445, 454 (1985); Scruggs v. Jordan, 485 F.3d 934, 941 (7th Cir.
2007). On appeal Donelson challenges all of the district
court’s reasoning.
    We first consider Donelson’s argument that the adjust-
ment committee’s decision was not supported by “some evi-
dence.” The state appellate court reached the merits of this
due-process theory, and we must uphold that court’s deci-
sion unless it was “contrary to, or involved an unreasonable
application of, clearly established federal law,” or otherwise
rested on an “unreasonable determination of the facts.” 28
U.S.C. § 2254(d); see, e.g., Campbell v. Reardon, 780 F.3d 752,
761 (7th Cir. 2015). Under Hill “the relevant question is
whether there is any evidence in the record that could sup-
port the conclusion reached by the disciplinary board.” 472
U.S. at 455–56; see also McPherson v. McBride, 188 F.3d 784,
786 (7th Cir. 1999). Here, the adjustment committee relied on
the two guards’ incident reports. The state court’s finding
that those reports satisfy the modest “some evidence” stand-
ard was not an unreasonable departure from federal law.
See McPherson, 188 F.3d at 786; Rudd v. Sargent, 866 F.2d 260,
262 (8th Cir. 1989).
    Donelson also contends that the disciplinary hearing was
not fair because he was denied due process when he could
not present evidence in his defense. Before considering the
merits of this argument, we must first decide whether the
Illinois appellate court relied on an adequate and independ-
ent state-law ground to reject this aspect of Donelson’s claim:
8                                                  No. 14-3395

that Donelson failed to tear off the top of the forms before he
returned his requests for witnesses and evidence.
    The state appellate court did not cite, the respondent
does not identify, and we have not found any Illinois law,
regulation, or precedent requiring inmates, on penalty of
loss of their right to be heard, to detach and submit only the
bottom portion of the form. As far as we can tell, the De-
partment of Corrections added this directive to its standard
form, most likely so that the inmate could retain what is in
essence the charging information on the top of the form
without having to make a copy before submitting a witness
request.
    The respondent has never before claimed that an adjust-
ment committee is authorized to reject a request for witness-
es or physical evidence on the ground that too much of the
form has been submitted. Nor has the respondent asserted
that any adjustment committee, including Donelson’s, has
ever done so. Instead, the state appellate court itself was the
source of this post-hoc rationale. The respondent did not
make this argument to the state trial or appellate courts, and
the adjustment committee did not give this rationale during
the hearing or in its summary report. The committee instead
said mistakenly that Donelson just did not request any wit-
nesses. See Wiggins v. Smith, 539 U.S. 510, 526–27 (2003) (re-
jecting post-hoc rationale invoked by state courts and re-
spondent); see also Marcrum v. Luebbers, 509 F.3d 489, 502–03
(8th Cir. 2007).
     This asserted state-law ground is not adequate to support
the state appellate court’s decision and thus does not bar our
review of Donelson’s federal due-process claim on the mer-
its. See Kaczmarek v. Rednour, 627 F.3d 586, 591 (7th Cir. 2010)
No. 14-3395                                                   9

(explaining that review under § 2254 is foreclosed if state
court resolves federal claim on state-law ground that is
“both independent of the federal question and adequate to
support the judgment”); Woods v. Schwartz, 589 F.3d 368, 373
(7th Cir. 2009) (same). To be “adequate,” a state-law ground
must be “a firmly established and regularly followed state
practice at the time it is applied.” Kaczmarek, 627 F.3d at 592;
accord, Thompkins v. Pfister, 698 F.3d 976, 986 (7th Cir. 2012).
     Illinois allows prison administrators to refuse to hear
witness testimony when offenders do not timely request
those witnesses on the provided form. See 20 Ill. Admin.
Code § 504.80(f)(2), (h)(3); Taylor v. Frey, 942 N.E.2d 758, 764
(Ill. App. 2011); Newsome v. Illinois Prison Review Bd., 776
N.E.2d 325, 328 (Ill. App. 2002). But these authorities—the
only ones cited by respondent on this point—do not support
the notion that a disciplinary committee may deny a timely
request for witnesses simply because the properly completed
bottom portion of the form was submitted with the top por-
tion of the form still attached. See 20 Ill. Admin. Code
§ 504.80(f)(2), (h)(3) (requiring inmates to submit witness re-
quests on form provided but not specifying that bottom por-
tion be detached); Taylor, 942 N.E.2d at 764 (noting that in-
mate conceded “he did not use the slip,” which was blank
and “still attached at the bottom of the disciplinary ticket”);
Newsome, 776 N.E.2d at 328 (noting that inmate first request-
ed witnesses orally at disciplinary hearing).
   The respondent has not identified any case in which an
adjustment committee has denied a request for witnesses or
physical evidence on the ground that a properly completed
form was not trimmed to the correct size. Nor does the re-
spondent deny Donelson’s assertion in the district court that
10                                                  No. 14-3395

he previously submitted witness requests in the same way.
Nor has the respondent identified any case before this one in
which an Illinois court found that an adjustment committee
was authorized to refuse an inmate’s request for witnesses or
physical evidence simply because the inmate sent in too
much of a properly completed request form.
    The record simply does not support the respondent’s as-
sertion that such a procedural rule “had been established
and regularly followed for several years prior to petitioner’s
July 2011 hearing.” We must therefore reject respondent’s
argument that the state court relied on an adequate state-law
ground. The procedural rule adopted and enforced by the
state court could not support a defense of procedural default
against Donelson unless that rule was already established.
See Ford v. Georgia, 498 U.S. 411, 423–24 (1991). Aberrant state
procedural rulings are not adequate to foreclose federal re-
view under § 2254. See Miranda v. Leibach, 394 F.3d 984, 995
(7th Cir. 2005); Page v. Frank, 343 F.3d 901, 908–09 (7th Cir.
2003); Prihoda v. McCaughtry, 910 F.2d 1379, 1383 (7th Cir.
1990). And this procedural rule—to the extent it exists at
all—certainly appears to be aberrant.
    Because the Illinois appellate court did not reach the mer-
its of Donelson’s claim that he was denied the right to call
witnesses and to present video and audio recordings, federal
courts will review the adjustment committee’s actions with-
out any deference to the state court’s decision. See Woolley v.
Rednour, 702 F.3d 411, 422 (7th Cir. 2012); Harris v. Thompson,
698 F.3d 609, 624 (7th Cir. 2012); Sturgeon v. Chandler, 552 F.3d
604, 611 (7th Cir. 2009). Due process requires that prisoners
in disciplinary proceedings, before being deprived of good
time, be allowed to call witnesses and present other evi-
No. 14-3395                                                 11

dence. Wolff v. McDonnell, 418 U.S. 539, 566 (1974); Scruggs,
485 F.3d at 939. Prison authorities are not compelled to ac-
cept requests “that threaten institutional goals or are irrele-
vant, repetitive, or unnecessary.” Piggie v. Cotton, 342 F.3d
660, 666 (7th Cir. 2003); see Jones v. Cross, 637 F.3d 841, 847
(7th Cir. 2011); Piggie v. McBride, 277 F.3d 922, 925 (7th Cir.
2002). But the respondent has not contended that these ex-
ceptions apply to any of the witnesses or recordings that
Donelson sought to introduce. In fact, the respondent has yet
to oppose Donelson’s due-process claim on the merits.
    Donelson told the adjustment committee that the named
witnesses would testify that he complied with rather than
opposed Watson’s orders, that the surveillance videos would
confirm he had permission to leave the wing during the first
incident and that two guards kept him from fleeing Watson’s
assault during the second incident, and that the telephone
recording would show that he called for help during
Watson’s assault. This evidence, if Donelson has described it
accurately, would undermine the committee’s decision. We
could not conclude that any error in excluding the evidence
was harmless. Compare Pannell v. McBride, 306 F.3d 499, 503
(7th Cir. 2002) (remanding for evidentiary hearing when tes-
timony “might have buttressed a potentially valid defense”),
and Piggie v. Cotton, 344 F.3d 674, 679 (7th Cir. 2003) (re-
manding for evidentiary hearing when record did not
“demonstrate with any degree of certainty that” requested
evidence “lacked exculpatory value or was otherwise irrele-
vant”), with Jones, 637 F.3d at 846–47 (affirming denial of
§ 2254 petition because proffered testimony would not have
changed disciplinary committee’s guilty finding), and Piggie,
344 F.3d at 678 (rejecting argument that denial of requested
12                                                          No. 14-3395

witnesses violated due process since inmate failed to explain
how testimony would have aided his defense).1
   Accordingly, we VACATE the district court’s judgment
and REMAND for further proceedings consistent with this
opinion.




     1
     Donelson also argues that an Illinois statute governing disciplinary
proceedings, 730 ILCS 5/3-8-7, is unconstitutional. Donelson failed to
make this argument in the district court. He cannot raise it for the first
time on appeal. See Pole v. Randolph, 570 F.3d 922, 939–40 (7th Cir. 2009);
Winsett v. Washington, 130 F.3d 269, 274 (7th Cir. 1997).
