United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted March 23, 2011*

Decided May 23, 2011

Before

FRANK H. EASTERBROOK, Chief Judge

MICHAEL S. KANNE, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 10-2171 

CHARLIE HERBST,

Petitioner-Appellant,

v.

MARK R. SEVIER,

Respondent-Appellee.

Appeal from the United States District

Court for the Northern District of Indiana,

South Bend Division.

No. 3:09cv143

James T. Moody,

Judge.

O R D E R

In a prison disciplinary action, Charlie Herbst, a former Indiana state prisoner,

admitted that he provided “a little legal work” to another inmate, whose family then sent a

money order to Herbst. He was found to have violated a policy of the Indiana Department

of Corrections prohibiting inmates from “giving to or accepting from any person anything

of value without proper authorization.” IND. DEP’T OF CORR., NO. 02-04-101 app. I, MANUAL

OF POLICIES AND PROCEDURES (2004). At first the Department sanctioned Herbst with a loss

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

*

After examining 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)(C).
No. 10-2171 Page 2

of good-time credit and a written reprimand, but it suspended the good-time sanction after

an internal appeal, and because the suspended sanction expired after six months, the

Department never imposed the sanction. After exhausting his administrative remedies,

Herbst petitioned for a writ of habeas corpus under 28 U.S.C. § 2254, arguing that the

disciplinary determination was supported by insufficient evidence to comport with due

process. He contends that the disciplinary determination inevitably lengthened his period of

confinement by disqualifying him from receiving a good-time credit for completing his

associate’s degree. He cites the Department’s manual and a corresponding Indiana statutory

provision, under which he contends that the prison “may” grant to inmates one year of

good-time credit for receiving the degree if they have “one (1) year clear of two (2) or more

Class B conduct reports at the time of program completion.” IND. DEP’T OF CORR., NO. 01-04-

101, MANUAL OF POLICIES AND PROCEDURES (2009); IND. CODE § 35-50-6-3.3.

The district court denied Herbst’s petition after concluding that the disciplinary

violation could not have prolonged his confinement, citing two other class B offenses that

disqualified him from the education-based credit. Alternatively, the court concluded that

the disciplinary determination rested on sufficient evidence to comply with the demands of

due process.

We requested supplemental memoranda concerning whether Herbst’s case is now

moot. Our initial review showed that he was released from prison in September 2010, and

the original record did not mention if Herbst continued to suffer collateral consequences

from his disciplinary conviction. See Cochran v. Buss, 381 F.3d 637, 641 (7th Cir. 2004); White

v. Ind. Parole Bd., 266 F.3d 759, 762-63 (7th Cir. 2001).

Herbst’s petition is moot. Article III of the federal constitution limits the jurisdiction

of the federal courts to hearing cases or controversies that remain “live” throughout the

lawsuit. See Spencer v. Kemna, 523 U.S. 1, 7 (1998); Liner v. Jafco, Inc., 375 U.S. 301, 306 n.3

(1964). Herbst’s parole supervisor explains in an affidavit that his office “discharged

[Herbst] from parole on October 12, 2010, and that Mr. Herbst is no longer under the

supervision of this office.” Herbst does not dispute that he is no longer in custody. He

contends, nonetheless, that his case remains live because the disciplinary conviction

disqualified him from receiving good-time credits for obtaining his associates degree, and

those credits might have ended his incarceration a year earlier. But he concedes that the

prison manual and state statute provide only that he “may” receive credits for obtaining his

degree. See Appellant’s Br. 2 (citing IND. CODE § 35-50-6-3.3 and IND. DEP’T OF CORR., NO. 01-

04-101, MANUAL OF POLICIES AND PROCEDURES (2009)); Appellant’s Suppl. Mem. 1-2. The

mere possibility that his sentence “may” have been shortened had Herbst been eligible to

receive discretionary credits does not revive his case because only decisions that “inevitably
No. 10-2171 Page 3

affect the duration of his sentence,” Sandin v. Conner, 515 U.S. 472, 487 (1995); Higgason v.

Farley, 83 F.3d 807, 809 (7th Cir. 1996), are actionable. 

Because Herbst cites no other reason that the controversy over his disciplinary

conviction remains “live” despite his expired sentence, the judgment of the district court is

VACATED, and the case is REMANDED with instructions to dismiss it as moot. See, e.g.,

Department of the Treasury v. Galioto, 477 U.S. 556 (1986); United States v. Munsingwear, Inc.,

340 U.S. 36 (1950).