In the
United States Court of Appeals
For the Seventh Circuit

No. 00-4032

Shelby Moffat,

Petitioner-Appellant,

v.

Edward Broyles,

Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:00-CV-338 AS--Allen Sharp, Judge.

Argued April 19, 2002--Decided April 30, 2002



  Before Bauer, Posner, and Easterbrook,
Circuit Judges.

  Easterbrook, Circuit Judge. Shelby Moffat
lost 180 days of good-time credits after
a disciplinary committee concluded that
he had attempted to smuggle two pieces of
jewelry into the prison. Immediately
after seeing a visitor in an interview
room, Moffat asked to use the bathroom;
suspicions raised, the officers sent him
to the shakedown room instead and caught
him attempting to discard a paper towel
containing a gold chain and a silver
chain. Moffat’s defense was that he owned
the jewelry and had worn it into the
visiting room; he offered as evidence
receipts for some authorized jewelry
purchases. He did not explain, however,
why--if he owned these pieces
legitimately and had been wearing them at
the start of the visit--he put the chains
in a paper towel and tried to conceal
them from the guards. Prison authorities
drew an adverse inference and found him
guilty of attempted trafficking. Moffat
contends in this proceeding under 28
U.S.C. sec.2254 that the state violated
his constitutional rights by acting
without sufficient evidence and by making
a decision without a concrete statement
of reasons. The district court denied his
petition.

  Neither the district judge nor any judge
of this court has issued a certificate of
appealability, which raises the question
how we can entertain this appeal given 28
U.S.C. sec.2253(c)(1)(A), which provides:
"Unless a circuit justice or judge issues
a certificate of appealability, an appeal
may not be taken to the court of appeals
from . . . the final order in a habeas
corpus proceeding in which the detention
complained of arises out of process
issued by a State court". This is a
habeas corpus proceeding, and Moffat’s
imprisonment arises out of (= is
authorized by) a state court’s process (=
his sentence). We held in Walker v.
O’Brien, 216 F.3d 626, 638 (7th Cir.
2000), that a certificate of
appealability nonetheless is unnecessary
because the prison’s disciplinary
apparatus is not a state court. That
decision created a conflict by departing
from the approach of the fifth and tenth
circuits. Montez v. McKinna, 208 F.3d
862, 867 (10th Cir. 2000); Stringer v.
Williams, 161 F.3d 259, 262 (5th Cir.
1998); Hallmark v. Johnson, 118 F.3d
1073, 1076-77 (5th Cir. 1997).

  Since Walker’s announcement, three more
circuits have addressed this issue--and
all three have rejected Walker’s holding,
making the score five to one against our
position. See Coady v. Vaughn, 251 F.3d
480, 486 (3d Cir. 2001); Greene v.
Tennessee Department of Corrections, 265
F.3d 369, 371-72 (6th Cir. 2001); Madley
v. United States Parole Commission, 278
F.3d 1306, 1309-10 (D.C. Cir. 2002).
Coady appears to have been unaware of
Walker, but Greene and Madley dealt with
it directly, disapproved both its
reasoning and its outcome, and held that
"the detention complained of arises out
of process issued by a State court" for
purposes of sec.2253(c)(1) whenever the
appellant’s imprisonment has been
judicially authorized. Not a single judge
in any other circuit has adopted the view
taken in Walker that sec.2253(c)(1) is
inapplicable to collateral attacks on
administrative decisions that affect how
much of a judicially imposed sentence
shall be served. As these opinions
observe, Walker reaches a counter-textual
conclusion: sec.2553(c)(1) asks whether
the detention arises out of a state
court’s process, while Walker asks
whether the challenged decision was made
by a state court. In order to hold that
a collateral attack was possible under
sec.2254 (which it did), the panel in
Walker had to hold that the detention
arose out of a state court’s decision,
but the panel then denied that a
certificate of appealability was
necessary. This internal contradiction,
coupled with Walker’s unfavorable
reception, poses the question whether
this circuit should continue to walk a
lonely path. See United States v. Carlos-
Colmenares, 253 F.3d 276 (7th Cir. 2001).

  Still, it is never necessary to revisit
a subject sua sponte--even if it deals,
as Walker does, with appellate
jurisdiction--unless an intervening
decision of the Supreme Court has
overthrown circuit precedent. Walker did
not reach its conclusion in passing or as
a result of inadequate consideration; it
resolved the issue directly and over a
vigorous dissent. Other circuits have not
turned up new arguments but instead have
aligned themselves with what was a
dissenting view in this circuit. It may
be that developments elsewhere will
affect how judges here see the question,
but because Indiana has not asked us to
take a fresh look at the question,
Moffat’s lawyer has not briefed the
subject either. We shall proceed to
decide the case as it was presented, but
with the caveat that this court is not
indifferent to the reception its legal
conclusions receive in other circuits and
may find it necessary to decide
eventually whether to eliminate or
perpetuate this conflict.

  One of Moffat’s arguments is that the
evidence does not prove that he attempted
to smuggle jewelry into the prison. He
came out of the interview with three
chains (two discarded in the paper towel
and a third found on a window ledge) but
could have been wearing all three going
in. Guards saw him wearing one; maybe
they missed the other two, Moffat
insists. He has receipts for some chains
and insists that the prison had to
establish that these were not the chains
that he possessed following the
interview. That would be impossible; the
receipts are not detailed enough to
exclude the possibility that the chains
in the paper towel had been purchased
earlier. Thus he was entitled to
vindication, Moffat concludes. But a
prison need not show culpability beyond a
reasonable doubt or credit exculpatory
evidence. It is enough, as far as the
federal Constitution is concerned, if
"some evidence" supports the disciplinary
board’s conclusion. See Superintendent of
Walpole v. Hill, 472 U.S. 445 (1985).
Guards saw one chain going in and found
three coming out; eyesight and memory can
play tricks, but they are reliable enough
to support criminal convictions and thus
are reliable enough to support
administrative decisions too. That Moffat
tried to ditch two chains implies that he
had something to hide, which strengthens
the inference that they had been acquired
improperly from his visitor.

  Moffat’s other argument is that the
board violated the due process clause by
using a boilerplate reason for its
decision. According to Wolff v.
McDonnell, 418 U.S. 539, 563 (1974), a
prison disciplinary panel must provide "a
written statement . . . as to the
evidence relied upon and the reasons for
the disciplinary action taken". But all
this board said was: "Based on the
preponderance of the evidence, the CAB
finds the offender guilty." That is hard
to describe as a reason; it is more a
restatement of the issue that the board
had to resolve. See Redding v. Fairman,
717 F.2d 1105 (7th Cir. 1983) (holding a
similarly generic "reason" inadequate).
It is little different from a jury’s
verdict "We find the defendant guilty."
Still, we have held that a curt
explanation may suffice when it was
evident to all involved that the only
question was one of credibility, so that
to find the prisoner guilty at all is to
reveal how the core dispute has been
resolved. See Saenz v. Young, 811 F.2d
1172 (7th Cir. 1987). Indiana says that
this was a simple dispute so that a
declaration of the upshot suffices;
Moffat says that the receipts make it a
more complex dispute, and that to give a
constitutionally adequate explanation the
board had to reveal how it assessed their
significance. We need not decide which
perspective is superior, because Moffat
forfeited this contention before the
litigation began.

  Indiana does not provide judicial review
of decisions by prison administrative
bodies, so the exhaustion requirement in
28 U.S.C. sec.2254(b) is satisfied by
pursuing all administrative remedies.
These are, we held in Markham v. Clark,
978 F.2d 993 (7th Cir. 1992), the sort of
"available State corrective process"
(sec.2254(b)(1)(B)(i)) that a prisoner
must use. Indiana offers two levels of
administrative review: a prisoner
aggrieved by the decision of a
disciplinary panel may appeal first to
the warden and then to a statewide body
called the Final Reviewing Authority.
Moffat sought review by both bodies, but
his argument was limited to the
contention that the evidence did not
support the board’s decision. He did not
complain to either the warden or the
Final Reviewing Authority about the
board’s sketchy explanation for its
decision. O’Sullivan v. Boerckel, 526
U.S. 838 (1999), holds that to exhaust a
claim, and thus preserve it for
collateral review under sec.2254, a
prisoner must present that legal theory
to the state’s supreme court. The Final
Reviewing Authority is the administrative
equivalent to the state’s highest court,
so the holding of Boerckel implies that
when administrative remedies must be
exhausted, a legal contention must be
presented to each administrative level.
We recently applied Boerckel to another
requirement that prisoners exhaust their
intra-prison remedies--the one in 42
U.S.C. sec.1997e(a), see Pozo v.
McCaughtry, No. 01-3623 (7th Cir. Apr.
18, 2002)--and see no reason why that
approach is not equally applicable to
this exhaustion requirement.

  This is not to say that a prisoner must
articulate legal arguments with the
precision of a lawyer--though even
lawyers need not do much more than hint
at a federal theory. See Verdin v.
O’Leary, 972 F.2d 1467 (7th Cir. 1992).
If Moffat had expressed disgruntlement
about the generic reason, that would have
been sufficient whether or not he cited
Wolff, for any complaint would have
alerted the warden and the Final
Reviewing Authority and allowed them to
fix the problem. After all, the rationale
for an exhaustion requirement is that a
timely request may eliminate both the
flaw and the need for federal review. The
warden easily could have remanded the
proceeding to the board with instructions
to give a more complete explanation of
its thinking. That step likely would have
avoided any need to invoke sec.2254. For
all we know, however, Moffat considered
this possibility and chose to withhold
the point (that is, engaged in
"deliberate bypass" in the terminology of
Fay v. Noia, 372 U.S. 391 (1963),
overruled by Keeney v. Tamayo-Reyes, 504
U.S. 1 (1992)). Better reasons from the
board readily could have undercut
Moffat’s argument that the evidence was
insufficient; if the board had spelled
out its chain of conclusions and
inferences, that would have exposed any
flaws in Moffat’s evidentiary argument.
In the end, however, it does not matter
whether Moffat made a deliberate
decision: Fay’s overruling means that
even an unintentional default is
conclusive. It is enough that Moffat
could have raised this point and did not.
That procedural default means, given
Boerckel, that state remedies were not
exhausted, and precludes consideration of
this theory under sec.2254 unless the
prisoner can show cause and prejudice--
which Moffat does not attempt to do.

Affirmed
