Œ 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 Federal Rule of

Appellate Procedure 34(a)(2).

In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 01-3784

DAVID PANNELL,

Petitioner-Appellant,

v.

DANIEL R. MCBRIDE,

SUPERINTENDENT,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 01 C 151—Allen Sharp, Judge.

____________

SUBMITTEDŒ SEPTEMBER 11, 2002—DECIDED SEPTEMBER 30, 2002

____________

Before COFFEY,EASTERBROOK, andMANION, Circuit Judges.

Per curiam. A Wabash Valley Correctional Facility

conduct adjustment board found Indiana inmate David

Pannell guilty of possessing a deadly weapon and sanctioned him with two years’ disciplinary segregation and

a demotion in credit-earning class. After exhausting his
2 No. 01-3784

state remedies, Pannell sought a writ of habeas corpus

in federal district court under 28 U.S.C. § 2254. The court

denied his petition and Pannell appeals. We vacate and

remand.

On October 14, 1999, Sergeant Elofson, Sergeant Cassidy,

and Correctional Officer Counterman searched Pannell’s

cell. During this search Elofson disassembled a television

bearing Pannell’s name and prisoner number and discovered three crude knives, marijuana, and tobacco. The

next day prison officials charged Pannell with three infractions, including possession of a dangerous weapon.

Pannell pleaded not guilty, claiming that another inmate

had loaned him the television and that he was unaware

of its contents. According to Pannell the television’s exterior was sealed when he received it and remained that

way until the October 14 search. The conduct board nevertheless found him guilty after an October 26 hearing.

Pannell filed a verified habeas corpus petition in February 2001, asserting that the conduct board was biased

against him and that Indiana violated his due process

rights by refusing his request for documents and his request to call witnesses. Pannell declared under penalty of

perjury that he had submitted to the screening officer

written requests for documents and witnesses a week

before the hearing, but that his requests were denied. The

district court then ordered Indiana to show cause why the

court should not issue the writ. Indiana filed a response

to the court’s order, including a memorandum and supporting exhibits requesting that the petition be denied.

After the court denied his request for discovery, Pannell

submitted his own memorandum and supporting exhibits requesting that his petition be granted. A week later

the court denied the petition, concluding that Pannell

had failed to demonstrate bias and that there was no evi-
No. 01-3784 3

1 Indiana has in the past and here continues to contend that

§ 2254(d)(1) applies, and in doing so either purposely or carelessly ignores this court’s decisions in Piggie and White. Perhaps

the State wishes to preserve for a future appeal to the United

States Supreme Court its contention that § 2254(d)(1) should

apply to state prison disciplinary proceedings. If so, it is still

obligated to disclose to the court controlling but adverse precedent which had not been cited by its pro se adversary. See ABA

Model Rules of Professional Conduct Rule 3.3(a)(3) (2000). Any

(continued...)

dence in the record that he timely requested documents

and witnesses.

On appeal Pannell iterates that the conduct board was

biased and that prison authorities violated his due process rights by stymying his efforts to obtain documents

and call witnesses. Before examining the merits of his

petition, however, we must restate our standard of review.

Both sides assert that we examine the propriety of the

prison’s disciplinary proceeding under the deferential lens

prescribed by 28 U.S.C. § 2254(d)(1). Under that provision federal courts may grant habeas corpus relief only

if a state court’s adjudication on the merits resulted in a

decision that “was contrary to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.” 28

U.S.C. § 2254(d)(1); Washington v. Smith, 219 F.3d 620, 627

(7th Cir. 2000). But as this court has stated several times,

a prison disciplinary board is not a “court,” and Indiana

does not provide for judicial review of conduct board

determinations. Piggie v. McBride, 277 F.3d 922, 925-26

(7th Cir. 2002); White v. Ind. Parole Bd., 266 F.3d 759, 765-

66 (7th Cir. 2001). As a result, § 2254(d)(1) does not apply

in this case and our review is de novo. See id.1
4 No. 01-3784

1 (...continued)

failure to do so in the future by the Indiana Attorney General and

his deputy attorneys will expose them to sanctions.

Pannell first contends that the conduct board was biased.

Although he had a right to a disciplinary hearing conducted by an impartial decision maker, see Wolff v. McDonnell, 418 U.S. 539, 571 (1974), his allegation of partiality

was insufficient to support a disqualification. Pannell asserts that the conduct board was biased because the

same members presided over his separate disciplinary

proceedings arising from the discovery of marijuana and

tobacco in the television. He complains that the conduct

board had “prior knowledge of the factual events” of the

October 14 search, but does not explain how this knowledge prejudiced his case. Moreover, the conduct board

members had no involvement in the underlying factual

events of the incident. See Litecky v. United States, 510

U.S. 540, 551 (1994); Gaither v. Anderson, 236 F.3d 817, 820

(7th Cir. 2001). Pannell thus failed to demonstrate bias.

Pannell also claims that prison authorities denied him

due process by not allowing him to present documentary

evidence and call witnesses in his defense. The Due Process

Clause gives inmates a right to call witnesses and present documentary evidence at a hearing that results in

an extension of their incarceration time by demoting

their credit-earning class. Montgomery v. Anderson, 262

F.3d 641, 642 (7th Cir. 2001). But the right to present evidence is qualified—prison officials may exclude evidence

from an inmate’s hearing to ensure institutional safety or

correctional goals. Wolff, 418 U.S. at 566. Moreover, prisoners do not have the right to call witnesses whose testimony would be irrelevant, repetitive, or unnecessary. Id.;

Forbes v. Trigg, 976 F.2d 308, 317-18 (7th Cir. 1992).
No. 01-3784 5

The district court rejected Pannell’s complaints because

in its view there was nothing in the record demonstrating that Pannell requested the specified documents and

witnesses. Pannell states that he asked for copies of his

commissary history and a statement from his caseworker

attesting that the prison had no record of another inmate transferring ownership of the television to him. But

whether he requested these documents is of no matter

because they concern a point that was not in dispute.

Both parties agreed that he did not acquire the television

through formal prison channels (Pannell claims he borrowed the television; a prison caseworker stated that it

must have been stolen), and the requested documents

would only have underscored that fact. Pannell fails to

demonstrate how these documents would have shed

light on whether he possessed the weapons, and, accordingly, the failure to produce them could not have harmed

him regardless of whether he requested production.

But Pannell’s assertion that he was denied the right to

call witnesses is a different story. He asserts that on October 19 he submitted a written request asking Counterman,

Cassidy, and Correctional Officer Moody to testify at his

hearing. Pannell wanted Moody to testify that he searched

Pannell’s cell ten days earlier and observed an intact

security seal on the television, but such testimony would

have been irrelevant because Pannell could have concealed the weapons in the television in the interim between the two searches. Still, Counterman and Cassidy

might have aided Pannell’s defense. He wanted both to

testify that they observed Elofson break the security seal

during the October 14 search, testimony that would have

corroborated his statement that he never opened the

television and was unaware of its contents. Indiana counters that there is no indication from the record that either

officer had personal knowledge—a patently frivolous as-
6 No. 01-3784

sertion given that both were present at the search. And we

do not know from this record when the security seal was

placed on the television, if Pannell was authorized to

have another inmate’s television in his cell, whether the

security seal can be broken and reapplied, or if possession

of a deadly weapon is a strict liability offense. Consequently, we cannot conclude that testimony from Counterman

and Cassidy would have been irrelevant because it might

have buttressed a potentially valid defense that he was

unaware of the television’s contents.

Moreover, the district court’s conclusion that Pannell did

not make a timely request for witnesses was premature

and not supported by the record. Pannell’s verified habeas

corpus petition states that he submitted to the screening

officer a written request to have Counterman and Cassidy

testify. Indiana has not disputed this assertion, instead

claiming (incorrectly) that there was no evidence in the

record that he made the requests. Moreover, Pannell’s

assertion that he requested the witnesses is supported by

a statement submitted by Counterman indicating that

Pannell had requested him to appear and testify. But this

statement did not address the “security seal” issue, and

Indiana gave no reason why Counterman could not appear

at the hearing. See Ponte v. Real, 471 U.S. 491, 497 (1985)

(prison authorities ordinarily must give some explanation for disallowing live witness testimony). Consequently,

there is evidence that Pannell requested these witnesses

to appear and testify. But because the court denied the

petition only a few days after Pannell submitted his request to grant it, Indiana has not yet been afforded the

opportunity to meet Pannell’s evidence with its own.

The judgment of the district court is VACATED and the

case is REMANDED for further proceedings. On remand

the court should allow Indiana to respond to Pannell’s
No. 01-3784 7

submission before deciding whether an evidentiary hearing is necessary.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-97-C-006—9-30-02