00-2425 White v. Indiana Parole Board

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“Does a state prisoner need a certificate of appealability when seeking federal collateral review of a prison disciplinary board’s decision revoking good-time credits? We gave a negative answer in Walker v. O’Brien, 216 F.3d 626 (7th Cir. 2000), holding among other things that the additional time served as a result of a disciplinary board’s decision is not ‘detention [that] arises out of process issued by a State court’. That conclusion was debated within the court; three judges thought that detention ‘arises out of process issued by a State court’ whenever imprisonment has been authorized by a criminal sentence. 216 F.3d at 642-44. Thus it is possible to see how collateral attacks concerning good-time credits could require certificates of appealability even if a disciplinary board is not a ‘court’; but it is impossible to see how, if a disciplinary board is a ‘court,’ an appeal would be possible without a certificate of appealability. The assumption made in cases such as Evans therefore is irreconcilable with the holding of Walker in addition to the holdings of Elliott and Cleavinger.

“To eliminate the tension among this court’s decisions, we now disapprove any language in Evans, Sweeney, Gaither, and similar opinions implying that prison disciplinary boards are ‘courts’ for the purpose of 28 U.S.C. sec.2254(d). That portion of the AEDPA accordingly does not affect collateral review of decisions revoking good-time credits unless states provide for judicial review of these decisions – review that under sec.2254(c) (as interpreted in Markham) a prisoner must pursue.

Affirmed.

Appeal from the United States District Court for the Northern District of Indiana, Sharp, J., Easterbrook, J.