William Cox v. Daniel McBride

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-1413
William Cox,
Petitioner-Appellant,
v.
Daniel McBride,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:00CV687AS--Allen Sharp, Judge.
Submitted December 18, 2001--Decided January 29, 2002
Before Posner, Manion, and Rovner, Circuit
Judges.
Posner, Circuit Judge. The plaintiff, a
state prison inmate, was found guilty by
a prison disciplinary board of assaulting
a guard and was sentenced to lose two
years’ worth of good-time credits. His
petition for federal habeas corpus was
denied with prejudice as being time-
barred. Denial was also based on his
failure to have signed the petition, in
violation of the first paragraph of 28
U.S.C. sec. 2242 and Rule 2(c) of the
Rules Governing Section 2254 Cases in the
United States District Courts, although
it is unclear whether the district judge
thought that such a failure would by
itself have warranted dismissal with
prejudice. It would not have. The only
authorized remedy is for the judge to re
turn the unsigned petition to the
applicant. Rule 2(e) of the Rules
Governing Section 2254 Cases in the
United States District Courts; see
Hendricks v. Vasquez, 908 F.2d 490 (9th
Cir. 1990); Application of Gibson, 218
F.2d 320 (9th Cir. 1954) (per curiam);
Adams v. Armontrout, 897 F.2d 332, 334
(8th Cir. 1990). If the applicant is
obdurate in refusing to sign, the
district court can dismiss the petition
with prejudice, as in any other case of
failure to prosecute, under Fed. R. Civ.
P. 41(b) (which provides that dismissal

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is with prejudice unless otherwise
indicated by the court); see Oliver v.
Gramley, 200 F.3d 465 (7th Cir. 1999);
Ladien v. Astrachan, 128 F.3d 1051, 1056-
57 (7th Cir. 1997); Angulo-Alvarez v.
Aponte de la Torre, 170 F.3d 246, 252
(1st Cir. 1999); Aziz v. Wright, 34 F.3d
587, 589 (8th Cir. 1994); Nassau County
Ass’n of Insurance Agents, Inc. v. Aetna
Life & Casualty Co., 497 F.2d 1151, 1154
(2d Cir. 1974). But there is no
indication of obduracy here.
The judge thought the suit in any event
barred by the one-year statute of
limitations in 28 U.S.C. sec. 2244(d)(1)
for filing a petition for habeas corpus.
But that provision is limited to
petitions filed by persons "in custody
pursuant to the judgment of a State
court," and a prison disciplinary board
is not a court. It is true that Cox is in
prison pursuant to the judgment of a
state court; otherwise he would not be
eligible for federal habeas corpus. See
28 U.S.C. sec. 2254(a); Felker v. Turpin,
518 U.S. 651, 662 (1996); Walker v.
O’Brien, 216 F.3d 626, 633 (7th Cir.
2000). But the custody he is challenging,
as distinct from the custody that confers
federal jurisdiction, is the additional
two years of prison that he must serve as
the result of the "judgment" not of a
state court but of the prison
disciplinary board. This distinction was
embraced in the Walker case. Id. at 639;
see also id. at 640 (dissent from denial
of rehearing en banc).
The distinction between a state court
and a state prison disciplinary board is
well established in this circuit in cases
dealing with several other provisions of
the federal habeas corpus statute that
use the word "court." White v. Indiana
Parole Bd., 266 F.3d 759, 765-66 (7th
Cir. 2001) (28 U.S.C. sec. 2254(d));
Walker v. O’Brien, supra, 216 F.3d at 637
(28 U.S.C. sec. 2253(c)(1)(A)). (Markham
v. Clark, 978 F.2d 993, 994-95 (7th Cir.
1992), holds, it is true, that the
requirement of exhaustion of state
judicial remedies in 28 U.S.C. sec.
2254(b) requires exhaustion of
administrative remedies, but our
conclusion was based not only on the
purpose of requiring exhaustion of
remedies but also on the definition of
"available procedure" in section
2254(c).) "Courts elsewhere do not ever

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advert to the subject. For example, the
eighth circuit has treated prison
disciplinary boards as courts with no
explanation, see Closs v. Weber, 238 F.3d
1018 (8th Cir. 2001)." White v. Indiana
Parole Bd., supra, 266 F.3d at 766. In
light of our cases, we are unwilling to
interpret the word more broadly in
section 2244(d)(1). Congress can and
perhaps should amend the statute to bring
petitions for habeas corpus that
challenge prison discipline under the
one-year (or some other definite)
limitation, but unless and until it does
so the only limitation is the equitable
principle of laches codifed in Rule 9(a)
of the Rules Governing Section 2254 Cases
in the United States District Courts. See
Lonchar v. Thomas, 517 U.S. 314, 325-27
(1996); Smith v. Duckworth, 910 F.2d
1492, 1494-95 (7th Cir. 1990); Clency v.
Nagle, 60 F.3d 751, 753 (11th Cir. 1995).
Unlike a statute of limitations,
application of the doctrine of laches
requires a showing that the petitioner’s
delay was not only unreasonable but also
prejudicial to his opponent.
The respondent argues in the alternative
that the petitioner failed to exhaust his
administrative remedies. The record is
insufficiently developed to enable us to
evaluate the argument. The judgment is
therefore vacated and the case remanded
for further proceedings consistent with
this opinion.
Vacated and Remanded.

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