                              In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
No. 14-2574
TIMOTHY W. AUSTIN,
                                               Petitioner-Appellant,

                                v.

ANDREW PAZERA,
                                              Respondent-Appellee.
                    ____________________

        Appeal from the United States District Court for the
         Northern District of Indiana, Hammond Division.
         No. 2:13-cv-00221-JTM — James T. Moody, Judge.
                    ____________________

 SUBMITTED JANUARY 20, 2015 — DECIDED FEBRUARY 19, 2015
                    ____________________

   Before POSNER, KANNE, and SYKES, Circuit Judges.
    POSNER, Circuit Judge. Plaintiff Austin, an inmate of an
Indiana prison, was punished in a prison disciplinary pro-
ceeding for having attempted to traffic in tobacco, meaning
attempting to carry tobacco or tobacco products into or out-
side the prison. His punishment consisted of losing 60 days
of good-time credit (which increased his period of impris-
onment by 60 days), being demoted from “credit class 1” to
“credit class 2” (inmates in the first class earn one day of
2                                                        No. 14-2574


good time credit for each day of imprisonment, inmates in
the second class earn one day of credit for every two days of
imprisonment), being given 20 hours of extra work duty,
and being denied access to the prison commissary for 25
days.
    He petitioned for federal habeas corpus, see 28 U.S.C.
§ 2254, on the ground that the disciplinary proceeding had
denied him due process of law, primarily by convicting him
on the basis of insufficient evidence. The respondent is the
prison’s superintendent. The district court denied the peti-
tion, ruling that the evidence, though scanty, had been ade-
quate to prove Austin’s “constructive possession” of tobac-
co.
   The entire evidence against him consisted of the follow-
ing “conduct statement” submitted by a guard at the prison:
    On Feb 28, 13 at approx. 10.00 AM while I Ofc Spoon was
    shaking down the crawl spase [sic] at the Gary Parole Of-
    fice, Gary, Ind. I Ofc Spoon found 5 packs of Bugler ciga-
    rette papers, 1 ziploc bag that appears to have tobacco in it,
    2 ziplock [sic] bags filled with more ziplock [sic] bags in it.
    Offender Austin, Timothy #20967 was assigned to this area
    (crawlspace) as his work assignment.
    Austin, though an inmate, had been assigned to work in
the crawl space of a parole office near the prison, doing con-
struction and renovation work, mainly removing tile, vinyl
flooring, and carpet, and stripping wallpaper, baseboards,
and trim. According to his uncontradicted testimony he
worked only one day in the crawl space, and that was three
or four days after he began working in the parole office,
where he worked for at least four weeks. He also claimed in
his prison disciplinary proceedings, again without contradic-
No. 14-2574                                                    3


tion in the record, that four other inmates had had access to
the crawl space during the day he had worked there and all
five had been in the crawl space that day cutting and remov-
ing pipes together.
    If it’s assumed that any of the five could have placed the
tobacco in the crawl space, then, as we know nothing about
the other four, we could conclude only that Austin had a 20
percent probability of being the culprit. The district court
deemed this sufficient evidence of his guilt to place the dis-
ciplinary sanctions imposed on him beyond judicial authori-
ty to reverse. Yet it seems odd, to say the least, that someone
should be punished when there is an 80 percent probability
that he is innocent.
    It’s true that in Hamilton v. O’Leary, 976 F.3d 341, 345 (7th
Cir. 1991), we said that a 25 percent probability of guilt is
enough to require courts to uphold a finding of guilt made
in a prison disciplinary proceeding. But that was a much dif-
ferent case. Hamilton was one of four cellmates. Six weapons
(mainly shanks) were found in their cell. All four cellmates
were punished equally. Squeezed as they were into a single
cell, it was beyond unlikely that any of them did not know
about the weapons or have access to them to use if the occa-
sion required. Since it was impossible to distinguish among
innocent and guilty, and likely that all were guilty, the pun-
ishment of all was unavoidable—for the alternative would
have been to acquit all.
   This case is different. As far as we can tell, the prison’s
hearing officer was told nothing by prison personnel about
the crawl space—how large it was, whether any effort to
have concealed the tobacco and related items found there
had been made, where such items might have come from,
4                                                    No. 14-2574


and, most important, why no effort had been made by the
prison authorities (so far as appears) to question the other
four prisoners who worked in the crawl space. Austin ap-
pears to have been picked at random for punishment.
    As for the district court’s alternative ground—
constructive possession of the tobacco products—no evi-
dence at all was presented. Constructive possession is con-
trol of an item (implying ready access and intended use ac-
tual or contingent) without physical possession. If Austin
didn’t know there was contraband in the crawl space, he
was not in constructive possession of the contraband. But
even if he knew, if he had no interest in trafficking in tobac-
co and so would never become an actual possessor, he
would not be guilty of constructive possession; for obviously
a bystander who merely notices something is not in con-
structive possession of it. See United States v. Griffin, 684 F.3d
691, 695 (7th Cir. 2012); United States v. Katz, 582 F.3d 749,
752–54 (7th Cir. 2009); United States v. Bailey, 553 F.3d 940,
947–49 (6th Cir. 2009); United States v. Cruz, 285 F.3d 692,
697–700 (8th Cir. 2002); United States v. Brown, 3 F.3d 673, 684
(3d Cir. 1993). Proximity is not possession. And to top it all,
we don’t even know whether there were any tobacco prod-
ucts in the crawl space on the day Austin worked there.
    Convicted without evidence of guilt, Austin was denied
due process of law. The judgment is therefore reversed and
the case remanded with directions to order the relief sought
by him. For when the imposition of prison discipline is not
supported by even “some evidence,” which we think the
proper characterization of the scanty record in this case, the
prisoner is entitled to a writ of habeas corpus commanding
No. 14-2574                                                  5


that the discipline be rescinded. Grandberry v. Smith, 754 F.3d
425, 426 (7th Cir. 2014).
                                REVERSED WITH INSTRUCTIONS.
