                                In the

 United States Court of Appeals
                 For the Seventh Circuit

No. 07-2248

S HAVAUGHN W ILSON-E L,
                                                 Petitioner-Appellant,
                                    v.

A LAN F INNAN,
                                                 Respondent-Appellee.


               Appeal from the United States District Court
        for the Southern District of Indiana, Terre Haute Division.
          No. 2:06-cv-172-LJM-WTL—Larry J. McKinney, Judge.



    S UBMITTED A UGUST 21, 2008  —D ECIDED S EPTEMBER 12, 2008




    Before P OSNER, R OVNER, and W OOD , Circuit Judges.
  W OOD , Circuit Judge. This case requires us to consider
whether, when a prison disciplines an inmate for being a
“habitual offender,” it must permit the inmate to chal-



  After examining the briefs and the record, we have con-
cluded that oral argument is unnecessary. This appeal is
therefore submitted on the briefs and the record. See F ED . R. A PP .
P. 34(a)(2).
2                                               No. 07-2248

lenge the underlying disciplinary convictions that pro-
vide the predicate for the later finding. We conclude
that the habitual offender proceeding does not have the
effect of expanding the rights that the prisoner otherwise
has to challenge any of the earlier offenses. This means
that Indiana prisoner Shavaughn Wilson-El cannot suc-
ceed in his latest effort to obtain habeas corpus relief from
one of his disciplinary convictions.


                              I
  On August 18, 2004, Wilson-El was in his cell apparently
waiting to eat. He pushed his intercom button, summoning
Correctional Officer Brock, to complain that he had been
given the wrong tray. Officer Brock told Wilson-El that
the intercom button was to be used only for emergencies,
but Wilson-El ignored Brock and pushed the button three
more times, while calling Brock “a dumb f***ing bitch.”
Officer Brock wrote up a conduct report charging Wilson-
El with class C offense # 348, which covers insolence,
vulgarity, or profanity toward staff. The next day, Wilson-
El was notified of the charge, pleaded not guilty, and
requested a lay advocate.
  A three-member Conduct Adjustment Board conducted
a disciplinary hearing on the charge on August 23, 2004,
and found Wilson-El guilty. The Board recommended that
he be punished with a one-month loss of commissary
privileges and a written reprimand; those sanctions
were affirmed by the Facility Head and the Final Review-
ing Authority for the prison.
No. 07-2248                                                  3

   This was not Wilson-El’s first encounter with the
prison disciplinary system. (Indeed, this appeal is not our
first encounter with him either: see Wilson-El v. Finnan, 275
F.App’x 547 (7th Cir. 2008).) Accordingly, on August 25,
2004, the prison prepared a conduct report charging
Wilson-El with being a habitual conduct rule violator,
because he had been found guilty in eight prison disciplin-
ary proceedings in a two-month period. His insolence
conviction of August 23 was one of those eight. On August
30, Wilson-El was found guilty of the habitual offender
charge. That finding led to a more serious sanction:
revocation of 180 days of good-time credit.
   Wilson-El then filed a petition for a writ of habeas corpus,
under 28 U.S.C. § 2254. His petition listed August 23, 2004,
as the date of his “guilt determination,” and it described
his conviction for insolence. In it, he contended that the
Board violated due process because one of its members
had direct knowledge of his case and an interest in the
outcome, and he complained generally about the conduct
of the proceeding. His complaint said nothing about his
habitual offender conviction, which was the one that led
to the loss of his good-time credits. Instead, as he has
explained more fully in his brief on appeal, his theory
is that his custody was extended by the second conviction,
but the second conviction rested in part on the earlier
insolence conviction, and thus the earlier conviction
indirectly led to a loss of liberty.
  The district court rejected Wilson-El’s argument. It
looked only to the insolence conviction and found that
the written reprimand and the one-month loss of com-
4                                                 No. 07-2248

missary privileges “did not constitute a deprivation of
sufficient severity to support the ‘in custody’ requirement
of § 2254(a),” nor a loss of a liberty interest for purposes
of the Due Process Clause, see Sandin v. Conner, 515 U.S.
472 (1995). The district court also found that Wilson-El
had not adequately explained how the later use of his
insolence conviction in the habitual offender determina-
tion made a difference. It therefore dismissed his petition.


                              II
   Logically, there are only three things that Wilson-El
might be challenging here: (1) his original insolence
conviction, by itself, (2) his habitual offender conviction, by
itself, or (3) the use of the insolence finding to support
the habitual offender designation and punishment. We
address the first two briefly, because it helps to explain
why we find no merit in the third, which we believe is
what Wilson-El is trying to argue.
  It is easy to eliminate the second of these three possible
theories, because, as we have already noted, Wilson-El’s
complaint does not say a word about his habitual offender
conviction. The state points out that this conceivably could
be the end of the case. Although it does not say what
minimum number of underlying convictions would suffice
to prove this offense, it does say that knocking out just
one out of eight would make no difference—the other
seven would still be enough to support the designation.
Wilson-El does not refute this point, and it would be
enough on its own to affirm the judgment of the district
court rejecting Wilson-El’s habeas corpus petition.
No. 07-2248                                                5

   But perhaps Wilson-El is suggesting that the habitual
offender conviction does not rest on such a mechanical
basis, and that if he could eliminate his insolence con-
viction, then the Board may have weighed his record
differently. In case that is his theory, we turn first to the
insolence conviction in isolation. Not every prison disci-
plinary proceeding is capable of giving rise to a later case
under 42 U.S.C. § 1983. As the Supreme Court held in
Sandin, if the prisoner wants to assert that a disciplinary
proceeding violated his due process rights, he must first
show that he is asserting a deprivation of life, liberty, or
property. The Court specifically rejected the proposition
that “any state action taken for a punitive reason en-
croaches upon a liberty interest under the Due Process
Clause even in the absence of any state regulation.” 515
U.S. at 484. Instead, liberty interests are implicated only
if the state imposes an “atypical, significant deprivation.”
Id. at 486. The Court also acknowledged that claims
might arise under other provisions of the Constitution,
including the First and Eighth Amendments and the
Equal Protection Clause of the Fourteenth Amendment. See
id. at 487 n.11. Prisoners frequently bring § 1983 cases
challenging the conditions of their confinement under
one or more of those theories. See, e.g., Estelle v. Gamble,
429 U.S. 97 (1976) (Eighth Amendment challenge to
deliberate indifference to serious medical need); Turner v.
Safely, 482 U.S. 78 (1987) (First Amendment and substan-
tive due process challenge to mail and marriage regula-
tions); Farmer v. Brennan, 511 U.S. 825 (1994) (Eighth
Amendment challenge to violent prison conditions); Lewis
v. Casey, 518 U.S. 343 (1996) (First Amendment complaint
6                                                  No. 07-2248

about deprivation of access to courts); Cutter v. Wilkinson,
544 U.S. 709 (2005) (challenge under Religious Land Use
and Institutionalized Persons Act, 42 U.S.C. § 2000cc-
1(a)(1)-(2), to prison’s failure to accommodate religious
practices). As Wilson-El’s insolence case illustrates,
however, there are many prison disciplinary pro-
ceedings that do not involve constitutionally protected
interests. Prisoners dissatisfied with the outcome of those
proceedings have only the remedies provided by the
prison system and, if available, the state courts.
  Rephrasing the question we posed earlier, the issue is
whether the use of a disciplinary conviction that did not
implicate interests protected by the federal Constitution
or laws, to help prove a different offense, somehow opens
the door to a belated attack on the first conviction. In the
area of criminal sentences that rely on earlier convictions,
the Supreme Court has left only the narrowest of openings
for collateral challenges to predicate convictions. Thus, in
Custis v. United States, 511 U.S. 485 (1994), the Court held
that a defendant has no constitutional right to pursue
a collateral attack on the validity of a previous state
conviction that was used to enhance a sentence under
the Armed Career Criminal Act, unless the earlier convic-
tion was obtained in violation of the right to counsel.
Similarly, in Daniels v. United States, 532 U.S. 374 (2001), the
Court held that a federal prisoner could not attack earlier
convictions using 28 U.S.C. § 2255, unless the right to
counsel was violated. Lackawanna County Dist. Atty. v. Coss,
532 U.S. 394 (2001), came to the same conclusion for
state prisoners who wanted to allege ineffective assistance
No. 07-2248                                                7

of counsel with respect to prior convictions that were
used to enhance a sentence. Only if counsel was entirely
missing, in a way that violated the defendant’s rights
under Gideon v. Wainwright, 372 U.S. 335 (1963), could
such a challenge be raised.
  On one level, the sentencing cases are distinguishable
from Wilson-El’s situation. Those prisoners all had an
opportunity to challenge their earlier convictions at the
time they were imposed, whereas Wilson-El had no
right to a federal tribunal (or for that matter a state
tribunal other than the one furnished by the prison
system) to review his insolence conviction. But the con-
cern the Court expressed for finality, and its willingness
to give that concern priority even in the face of earlier
convictions that may have been tainted by the Sixth
Amendment violation of ineffective assistance of counsel,
suggest to us that the Court would frown on any holding
that opened the door in the present situation to collateral
attacks on underlying disciplinary convictions.
  But, Wilson-El argues, he would have had an opportu-
nity to pursue a habeas corpus petition if the penalty for
his insolence conviction had been the deprivation of good-
time credits, rather than merely a written reprimand
and a brief suspension of commissary privileges. That is
true, but it assumes too much. The prison was never under
any obligation to give Wilson-El any particular level of
commissary privileges, any more than it was under an
obligation to assign him to the general population wing of
the prison or the administrative detention wing. See
Sandin, supra. If it had simply kept an informal log describ-
8                                                No. 07-2248

ing how well or badly Wilson-El behaved every day, and
after a certain number of bad days it held a hearing
to determine whether he should be punished as a social
misfit in the prison, he would have no complaint. The fact
that the prison has chosen, in effect, to keep track of his
behavior by more formally recording the minor infrac-
tions he has accumulated should not, in our view, make
a difference. We repeat that Wilson-El is not contesting
the fact that the prison has found him guilty of violating
the rules on eight prior occasions.


                             III
  Wilson-El apparently recognizes that he cannot chal-
lenge the insolence conviction as a separate matter, be-
cause it did not affect his custody. For the reasons we
have explained, the fact that the insolence conviction
played a role in the prison’s designation of him as an
habitual offender, and thus may indirectly have led to
his loss of good-time credits, does not change matters.
Since he has offered no reason (apart from his dissatis-
faction with the insolence conviction) why his habitual
offender finding violated the Constitution, we A FFIRM
the district court’s dismissal of his petition under 28 U.S.C.
§ 2254.




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