After examining the briefs and the record, we have con- 

cluded that oral argument is unnecessary. This appeal is

therefore submitted on the briefs and the record. See FED.R.APP.

P. 34(a)(2).

In the

United States Court of Appeals

For the Seventh Circuit

No. 07-2248

SHAVAUGHN WILSON-EL,

Petitioner-Appellant,

v.

ALAN FINNAN,

Respondent-Appellee.

Appeal from the United States District Court

for the Southern District of Indiana, Terre Haute Division.

No. 2:06-cv-172-LJM-WTL—Larry J. McKinney, Judge.

SUBMITTED AUGUST 21, 2008 —DECIDED SEPTEMBER 12, 2008 

Before POSNER, ROVNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge. This case requires us to consider

whether, when a prison disciplines an inmate for being a

“habitual offender,” it must permit the inmate to chal-
2 No. 07-2248

lenge the underlying disciplinary convictions that provide the predicate for the later finding. We conclude

that the habitual offender proceeding does not have the

effect of expanding the rights that the prisoner otherwise

has to challenge any of the earlier offenses. This means

that Indiana prisoner Shavaughn Wilson-El cannot succeed in his latest effort to obtain habeas corpus relief from

one of his disciplinary convictions.

I

On August 18, 2004, Wilson-El was in his cell apparently

waiting to eat. He pushed his intercom button, summoning

Correctional Officer Brock, to complain that he had been

given the wrong tray. Officer Brock told Wilson-El that

the intercom button was to be used only for emergencies,

but Wilson-El ignored Brock and pushed the button three

more times, while calling Brock “a dumb f***ing bitch.”

Officer Brock wrote up a conduct report charging WilsonEl with class C offense # 348, which covers insolence,

vulgarity, or profanity toward staff. The next day, WilsonEl was notified of the charge, pleaded not guilty, and

requested a lay advocate.

A three-member Conduct Adjustment Board conducted

a disciplinary hearing on the charge on August 23, 2004,

and found Wilson-El guilty. The Board recommended that

he be punished with a one-month loss of commissary

privileges and a written reprimand; those sanctions

were affirmed by the Facility Head and the Final Reviewing Authority for the prison.
No. 07-2248 3

This was not Wilson-El’s first encounter with the

prison disciplinary system. (Indeed, this appeal is not our

first encounter with him either: see Wilson-El v. Finnan, 275

F.App’x 547 (7th Cir. 2008).) Accordingly, on August 25,

2004, the prison prepared a conduct report charging

Wilson-El with being a habitual conduct rule violator,

because he had been found guilty in eight prison disciplinary proceedings in a two-month period. His insolence

conviction of August 23 was one of those eight. On August

30, Wilson-El was found guilty of the habitual offender

charge. That finding led to a more serious sanction:

revocation of 180 days of good-time credit.

Wilson-El then filed a petition for a writ of habeas corpus,

under 28 U.S.C. § 2254. His petition listed August 23, 2004,

as the date of his “guilt determination,” and it described

his conviction for insolence. In it, he contended that the

Board violated due process because one of its members

had direct knowledge of his case and an interest in the

outcome, and he complained generally about the conduct

of the proceeding. His complaint said nothing about his

habitual offender conviction, which was the one that led

to the loss of his good-time credits. Instead, as he has

explained more fully in his brief on appeal, his theory

is that his custody was extended by the second conviction,

but the second conviction rested in part on the earlier

insolence conviction, and thus the earlier conviction

indirectly led to a loss of liberty.

The district court rejected Wilson-El’s argument. It

looked only to the insolence conviction and found that

the written reprimand and the one-month loss of com-
4 No. 07-2248

missary privileges “did not constitute a deprivation of

sufficient severity to support the ‘in custody’ requirement

of § 2254(a),” nor a loss of a liberty interest for purposes

of the Due Process Clause, see Sandin v. Conner, 515 U.S.

472 (1995). The district court also found that Wilson-El

had not adequately explained how the later use of his

insolence conviction in the habitual offender determination made a difference. It therefore dismissed his petition.

II

Logically, there are only three things that Wilson-El

might be challenging here: (1) his original insolence

conviction, by itself, (2) his habitual offender conviction, by

itself, or (3) the use of the insolence finding to support

the habitual offender designation and punishment. We

address the first two briefly, because it helps to explain

why we find no merit in the third, which we believe is

what Wilson-El is trying to argue.

It is easy to eliminate the second of these three possible

theories, because, as we have already noted, Wilson-El’s

complaint does not say a word about his habitual offender

conviction. The state points out that this conceivably could

be the end of the case. Although it does not say what

minimum number of underlying convictions would suffice

to prove this offense, it does say that knocking out just

one out of eight would make no difference—the other

seven would still be enough to support the designation.

Wilson-El does not refute this point, and it would be

enough on its own to affirm the judgment of the district

court rejecting Wilson-El’s habeas corpus petition.
No. 07-2248 5

But perhaps Wilson-El is suggesting that the habitual

offender conviction does not rest on such a mechanical

basis, and that if he could eliminate his insolence conviction, then the Board may have weighed his record

differently. In case that is his theory, we turn first to the

insolence conviction in isolation. Not every prison disciplinary proceeding is capable of giving rise to a later case

under 42 U.S.C. § 1983. As the Supreme Court held in

Sandin, if the prisoner wants to assert that a disciplinary

proceeding violated his due process rights, he must first

show that he is asserting a deprivation of life, liberty, or

property. The Court specifically rejected the proposition

that “any state action taken for a punitive reason encroaches upon a liberty interest under the Due Process

Clause even in the absence of any state regulation.” 515

U.S. at 484. Instead, liberty interests are implicated only

if the state imposes an “atypical, significant deprivation.”

Id. at 486. The Court also acknowledged that claims

might arise under other provisions of the Constitution,

including the First and Eighth Amendments and the

Equal Protection Clause of the Fourteenth Amendment. See

id. at 487 n.11. Prisoners frequently bring § 1983 cases

challenging the conditions of their confinement under

one or more of those theories. See, e.g., Estelle v. Gamble,

429 U.S. 97 (1976) (Eighth Amendment challenge to

deliberate indifference to serious medical need); Turner v.

Safely, 482 U.S. 78 (1987) (First Amendment and substantive due process challenge to mail and marriage regulations); Farmer v. Brennan, 511 U.S. 825 (1994) (Eighth

Amendment challenge to violent prison conditions); Lewis

v. Casey, 518 U.S. 343 (1996) (First Amendment complaint
6 No. 07-2248

about deprivation of access to courts); Cutter v. Wilkinson,

544 U.S. 709 (2005) (challenge under Religious Land Use

and Institutionalized Persons Act, 42 U.S.C. § 2000cc1(a)(1)-(2), to prison’s failure to accommodate religious

practices). As Wilson-El’s insolence case illustrates,

however, there are many prison disciplinary proceedings that do not involve constitutionally protected

interests. Prisoners dissatisfied with the outcome of those

proceedings have only the remedies provided by the

prison system and, if available, the state courts.

Rephrasing the question we posed earlier, the issue is

whether the use of a disciplinary conviction that did not

implicate interests protected by the federal Constitution

or laws, to help prove a different offense, somehow opens

the door to a belated attack on the first conviction. In the

area of criminal sentences that rely on earlier convictions,

the Supreme Court has left only the narrowest of openings

for collateral challenges to predicate convictions. Thus, in

Custis v. United States, 511 U.S. 485 (1994), the Court held

that a defendant has no constitutional right to pursue

a collateral attack on the validity of a previous state

conviction that was used to enhance a sentence under

the Armed Career Criminal Act, unless the earlier conviction was obtained in violation of the right to counsel.

Similarly, in Daniels v. United States, 532 U.S. 374 (2001), the

Court held that a federal prisoner could not attack earlier

convictions using 28 U.S.C. § 2255, unless the right to

counsel was violated. Lackawanna County Dist. Atty. v. Coss,

532 U.S. 394 (2001), came to the same conclusion for

state prisoners who wanted to allege ineffective assistance
No. 07-2248 7

of counsel with respect to prior convictions that were

used to enhance a sentence. Only if counsel was entirely

missing, in a way that violated the defendant’s rights

under Gideon v. Wainwright, 372 U.S. 335 (1963), could

such a challenge be raised.

On one level, the sentencing cases are distinguishable

from Wilson-El’s situation. Those prisoners all had an

opportunity to challenge their earlier convictions at the

time they were imposed, whereas Wilson-El had no

right to a federal tribunal (or for that matter a state

tribunal other than the one furnished by the prison

system) to review his insolence conviction. But the concern the Court expressed for finality, and its willingness

to give that concern priority even in the face of earlier

convictions that may have been tainted by the Sixth

Amendment violation of ineffective assistance of counsel,

suggest to us that the Court would frown on any holding

that opened the door in the present situation to collateral

attacks on underlying disciplinary convictions.

But, Wilson-El argues, he would have had an opportunity to pursue a habeas corpus petition if the penalty for

his insolence conviction had been the deprivation of goodtime credits, rather than merely a written reprimand

and a brief suspension of commissary privileges. That is

true, but it assumes too much. The prison was never under

any obligation to give Wilson-El any particular level of

commissary privileges, any more than it was under an

obligation to assign him to the general population wing of

the prison or the administrative detention wing. See

Sandin, supra. If it had simply kept an informal log describ-
8 No. 07-2248

ing how well or badly Wilson-El behaved every day, and

after a certain number of bad days it held a hearing

to determine whether he should be punished as a social

misfit in the prison, he would have no complaint. The fact

that the prison has chosen, in effect, to keep track of his

behavior by more formally recording the minor infractions he has accumulated should not, in our view, make

a difference. We repeat that Wilson-El is not contesting

the fact that the prison has found him guilty of violating

the rules on eight prior occasions.

III

Wilson-El apparently recognizes that he cannot challenge the insolence conviction as a separate matter, because it did not affect his custody. For the reasons we

have explained, the fact that the insolence conviction

played a role in the prison’s designation of him as an

habitual offender, and thus may indirectly have led to

his loss of good-time credits, does not change matters.

Since he has offered no reason (apart from his dissatisfaction with the insolence conviction) why his habitual

offender finding violated the Constitution, we AFFIRM

the district court’s dismissal of his petition under 28 U.S.C.

§ 2254.

9-12-08