Jeffery Wayne Northern v. Craig A. Hanks

ΠAfter 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).
1 Despite Indiana’s urging, we decline to reconsider our decision
in Walker v. O’Brien, 216 F.3d 626 (7th Cir. 2000).
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2112
J EFFERY W AYNE N ORTHERN ,
Petitioner-Appellant,
v.
C RAIG A. H ANKS ,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Terre Haute Division.
No. TH 02-23-C-T/F—John Daniel Tinder, Judge.
____________
S UBMITTED M ARCH 26, 2003Œ—D ECIDED A PRIL 21, 2003
____________
Before C OFFEY , R IPPLE , and W OOD , Circuit Judges.
P ER C URIAM . Indiana inmate Jeffery Northern filed a
petition under 28 U.S.C. § 2254, claiming that prison
officials violated his due process rights when they failed
properly to notify him of a disciplinary charge. The dis-
trict court dismissed the petition, and we affirm. 1

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2 No. 02-2112
Prison officials at Indiana Correctional Industrial Facil-
ity investigated allegations that Northern and two other
inmates were smuggling tobacco into the facility with the
help of a staff member. After an extensive investigation,
officials charged Northern with an Adult Disciplinary Pro-
cedures Code 100-A conduct violation for violating Indi-
ana Code § 35-41-5-2(a) (conspiracy) and § 35-44-1-1(a)(2)
(bribery). Four days before his disciplinary hearing, North-
ern received a copy of the conduct and investigation reports
detailing the facts supporting the charge. After Northern
admitted to smuggling tobacco into the prison, the Conduct
Adjustment Board (“CAB”) found him guilty of a Code
100-A violation and demoted him to credit-earning class III.
Northern appealed, and although the reviewing author-
ity affirmed the credit demotion, it modified the charge,
stating that it believed the facts as set forth in the investi-
gation report more appropriately supported a finding that
Northern violated Code 111/113-A for attempted trafficking.
Northern filed a petition for a writ of habeas corpus,
which the district court later denied. In his petition, North-
ern alleged that he received 24-hour notice of the orig-
inal charge, but not of the modified charge, and there-
fore, because he was convicted of an offense different
from the offense identified in the original notice, his due
process rights were violated. The district court found that
Northern had received advance notice of the original
charge, and that the reviewing authority’s modification of
the charge on appeal was “of no consequence” because the
evidence supported either charge. Thus, the court con-
cluded that Northern’s due process rights were not violated.
On appeal Northern renews his argument that the
reviewing authority’s modification of the charge violated
due process because it did not give him advance notice, and
thus he could not mount an appropriate defense. He argues
that if he had originally been charged with attempted

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No. 02-2112 3
trafficking, his “defensive posture [at the CAB hearing]
would have been different.”
Indiana inmates have a protected liberty interest in
their credit-earning class, Montgomery v. Anderson, 262
F.3d 641, 645 (7th Cir. 2001), and therefore are entitled
to receive advance written notice of the charges against
them, Wolff v. McDonnell, 418 U.S. 539, 563-64 (1974). The
notice should inform the inmate of the rule allegedly
violated and summarize the facts underlying the charge.
Whitford v. Boglino, 63 F.3d 527, 534 (7th Cir. 1995). The
notice requirement permits the accused to gather the
relevant facts and prepare a defense. Wolff, 418 U.S. at
564; Whitford, 63 F.3d at 534.
Here, Northern received advance written notice inform-
ing him of the facts underlying the charge. These facts
were sufficient to apprise Northern that he could be sub-
ject to a trafficking charge. As set forth in the investiga-
tion report, Northern had been implicated in a scheme
by which tobacco was bought and sold among inmates.
According to the report, an unidentified prison staff mem-
ber would repeatedly bring tobacco into the prison, hide
it in the sanitation department so that Northern—who
was working in the sanitation department—could access
it, and then notify Northern of its location. The report
further stated that Northern would retrieve the hidden
tobacco while working, conceal it in supply boxes that he
needed to deliver to specific units, and then deliver the
tobacco to inmates while making deliveries for the sanita-
tion department. Inmates receiving tobacco would send
payment to Northern’s brother Michael, who was not
incarcerated, and Michael in turn would pay the staff
member who smuggled the tobacco into the prison. The
CAB deemed these facts sufficient to find Northern guilty
of conspiracy and bribery, and we agree with the district
court that these facts were also sufficient for the review-
ing officer to modify the charge to attempted trafficking.

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4 No. 02-2112
In pressing his argument that notice was insufficient,
Northern relies on a district court case, Evans v. Deuth,
8 F. Supp. 2d 1135 (N.D. Ind. 1998), in which the original
charge (giving anything of value) was changed to a different
offense (extortion). There, the prison did not give the
accused prisoner 24-hours’ notice of the change. But Evans
(apart from being a district court decision and thus not
precedential authority) is distinguishable because the
investigation report there did not let Evans know that he
would be defending against an extortion charge. Here, by
contrast, Northern received a detailed investigation re-
port giving him ample notice that he would be defending
against a possible trafficking charge. Because the factual
basis of the investigation report gave Northern all the
information he needed to defend against the trafficking
charge, the reviewing authority’s modification did not
deprive Northern of his due process rights. See Holt v.
Caspari, 961 F.2d 1370, 1373 (8th Cir. 1992) (prison
disciplinary committee did not deny petitioner due proc-
ess by elevating charge from “possession of contraband”
to “possession of dangerous contraband” because the fac-
tual basis for both charges was the same).
A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-21-03

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