                                    UNPUBLISHED ORDER
                                Not to be cited per Circuit Rule 53


                   United States Court of Appeals
                                    For the Seventh Circuit
                                    Chicago, Illinois 60604
                                  Submitted September 6, 2006
                                  Decided September 14, 2006


                                              Before

                       Hon. FRANK H. EASTERBROOK, Circuit Judge

                       Hon. MICHAEL S. KANNE, Circuit Judge

                       Hon. DIANE S. SYKES, Circuit Judge



ERIC D. SMITH,                                                 Appeal from the United States
       Petitioner-Appellant,                                   District Court for the Northern
                                                               District of Indiana, South Bend
No.    06-1389                        v.                       Division.

BILL WILSON,                                                   No. 04 C 501
      Respondent-Appellee.                                     Allen Sharp, Judge.




                                               Order

        We remanded this case last year so that the district judge could resolve a single question:
whether Eric Smith had refused to attend a prison disciplinary hearing (as the respondent
maintains) or had never been notified of the hearing (as Smith maintains). See Smith v. Jordan,
No. 05-1186 (7th Cir. Aug. 12, 2005) (unpublished order). A magistrate judge held an evidentiary
hearing and concluded that Smith is lying. The magistrate believed the contrary statement of a
guard who testified that he had visited Smith in his cell to extend an opportunity to attend the
hearing, and that Smith had refused point blank. The prison's contemporaneous log book reflects
that decision. After de novo consideration, the district judge agreed with the magistrate judge.

       Smith now argues that he was entitled to a jury trial on this factual dispute, but the
contention is frivolous. The court is the sole factfinder in collateral proceedings under 28 U.S.C.
No. 06-1389                                                                       Page 2


§2254. See §2254(e). A collateral attack is not an action "at law" to which the seventh amendment
applies. Smith also maintains that the court should have subpoenaed additional witnesses, but the
magistrate did not abuse his discretion in rejecting this request. The proposed testimony would
have been marginally relevant, if relevant at all. Smith's remaining arguments are addressed to
issues that were resolved adversely to him on the first appeal and need not be reconsidered.

                                                                                       Affirmed
