David Pannell v. Cecil Davis

*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).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 17, 2006*
Decided February 23, 2006
Before
Hon. THOMAS E. FAIRCHILD, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-1550
DAVID PANNELL,
Petitioner-Appellant,
v.
CECIL DAVIS,
Respondent-Appellee.
Appeal from the United States District
Court for the Northern District of
Indiana, South Bend Division
No. 3:04-CV-176AS
Allen Sharp,
Judge.
O R D E R
Indiana prisoner David Pannell was charged with battery after a prison guard
thought he observed Pannell fighting with another inmate. A Conduct Adjustment
Board (CAB) subsequently determined that the battery charge was unsupported
because the evidence (including a video of the altercation) showed that although the
inmates were arguing heatedly, were wearing leather gloves, and were in a “hugging
position,” no blows were traded. The CAB downgraded the charge and convicted
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 05-1550 Page 2
Pannell of disruptive, unruly, and rowdy conduct; as punishment, it revoked 30 days
of earned good time credits. Pannell unsuccessfully appealed the decision through
the administrative process and then petitioned the district court for a writ of habeas
corpus, 28 U.S.C. § 2254, arguing that he received insufficient notice of the new
charge and had been denied the right to call witnesses in his defense. The district
court granted a “conditional writ” on the issue of witnesses and sent the case back for
a new hearing. The CAB again reduced the battery charge and convicted Pannell of
disruptive, unruly, and rowdy conduct, and this time it revoked 60 days of earned
credit time. Pannell renewed his application for habeas corpus. The district court
denied the application, saying that the CAB didn’t need to give him 24-hours’ notice
when finding him guilty of the lesser offense because the information used to find
him guilty was the same. Under the circumstances, this seems to be common sense.
Pannell contends on appeal that he was denied due process because he was
charged with one offense (battery) but convicted of another (disruptive conduct). He
rightly notes that Wolff v. McDonnell, 418 U.S. 539, 563–64 (1974), requires that a
prisoner receive written notice of disciplinary charges so that he can prepare a
defense. But when an inmate is sufficiently notified of a charge, he is also on notice
that he could face a lesser charge if it is based on the same set of facts. Northern v.
Hanks, 326 F.3d 909 (7th Cir. 2003) (per curiam); cf. Holt v. Caspari; 961 F.2d 1370,
1373 (8th Cir. 1992) (rule applies even where initial charge is superseded by more
serious charge). The charge of disruptive conduct in a prison is closely related to a
charge of battery; if battery had been proved here, one would not say that disruptive
conduct had not also been proved. The evidence of disruptive conduct in this case
lacks only the fact of physical blows to prove battery. Although Pannell argues that
the facts underlying the two charges are different, we do not agree and conclude that
the principle of Northern is applicable here.
AFFIRMED.

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