                            UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53



           United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                            Submitted March 23, 2006*
                             Decided March 30, 2006

                                      Before

                   Hon. THOMAS E. FAIRCHILD, Circuit Judge

                   Hon. DANIEL A. MANION, Circuit Judge

                   Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 04-4085

JOHN A. MARTIN,                             Appeal from the United States District
    Petitioner-Appellant,                   Court for the Southern District of
                                            Indiana, Indianapolis Division
      v.
                                            No. 1:04-cv-605-DFH-TAB
JOHN R. VANNATTA,
    Respondent-Appellee.                    David F. Hamilton,
                                            Judge.

                                    ORDER

       Indiana prisoner John Martin was convicted by a prison disciplinary board of
“engaging in sex acts” with another inmate and punished with a loss of earned
credit time and a demotion in credit-earning class. After attempting unsuccessfully
to exhaust his administrative remedies, he filed a petition for a writ of habeas
corpus challenging the conviction. The district court dismissed, and we affirm.

      After Martin’s appeal of the conviction to the warden was denied, he
attempted to appeal again to the final administrative authority. This required
mailing the appeal. Martin claims that he did not have money to pay for postage


      *
       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 Fed. R. App. P. 34(a)(2).
No. 04-4085                                                                    Page 2

and that the appeal was therefore not mailed. According to prison rules, there are
two methods for obtaining free postage. The first, available to indigent prisoners, is
for “legal mail”; this postage is provided by the law library. The other method is
free stamps provided weekly by the prison. Martin chose the former method,
representing that the mailing concerned a tort claim and hence was legal mail. The
mail room determined that the mailing was an administrative appeal (which is not
legal mail under the prison’s rules) and declined to send it. We assume from these
facts and from statements in Martin’s brief that he knew that his appeal was not
legal mail. He did not attempt to explain why he did not use state-provided
postage. The district court was not satisfied that he was in fact indigent, and
concluded that he could have used state stamps in any event.

       State inmates who challenge prison disciplinary proceedings must exhaust
all levels of state review or they forfeit their right to proceed in federal court.
Moffat v. Broyles, 288 F.3d 978, 981 (7th Cir. 2002). But a procedural default is not
necessarily fatal: a petitioner may proceed if he can show cause for the default and
prejudice arising from it, or if he can prove that a dismissal would lead to a
fundamental miscarriage of justice because he is actually innocent. Murray v.
Carrier, 477 U.S. 478, 485, 495–96 (1986); Richardson v. Briley, 401 F.3d 794, 801
(7th Cir. 2005); Sanchez v. Miller, 792 F.2d 694, 697–99 (7th Cir. 1986). On appeal,
Martin argues that both exceptions apply to him, and that his petition was
therefore wrongfully dismissed. Neither contention has merit.

       To show cause for a procedural default, a petitioner must point to “some
objective factor external” to him, like interference by prison officials, that impeded
his ability to exhaust his state review options. Murray, 477 U.S. at 488. In other
words, the “cause” must be “something that cannot fairly be attributed” to the
petitioner. Coleman v. Thompson, 501 U.S. 722, 753 (1991); see also Moscato v. Fed.
Bureau of Prisons, 98 F.3d 757, 762 (3d Cir. 1996) (petitioner’s own delay was not
sufficient cause). Martin contends that he meets this description because his
indigency was beyond his control, but as the district court held, he did nothing to
show that he was without funds at the time. Martin argues that commissary
purchases entail a two-week waiting period, so even if he could have afforded
postage his appeal would have been untimely. A little advance planning would
have solved this problem, not to mention the fact that Martin nowhere explains why
his weekly allocation of free stamps was insufficient to mail his appeal.

      Martin provides little support for his argument that the procedural default
should be excused because he is actually innocent—that is, innocent in fact. He
does generally assert a number of state and federal constitutional violations arising
from his indigency, but these do not show that he is innocent of the charge of
“engaging in sex acts.” At most they could show—and they do not—that he is
No. 04-4085                                                                    Page 3

legally innocent, which does not fall within the miscarriage of justice exception. See
Boyer v. United States, 55 F.3d 296, 300 (7th Cir. 1995).

       Finally, Martin argues that the prison administrative procedure’s definition
of “legal mail” is unconstitutional because it does not include administrative
appeals. But he has forfeited this argument because he never raised it in the
district court. See Wernsing v. Thompson, 423 F.3d 732, 751 (7th Cir. 2005).

                                                                        AFFIRMED.
