Tevin Bivins v. Eric Williams

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 5, 2023*
Decided January 13, 2023
Before
DIANE S. SYKES, Chief Judge
DAVID F. HAMILTON, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 22-1791
TEVIN BIVINS,
Petitioner-Appellant,
v.
ERIC WILLIAMS,
Respondent-Appellee.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 19-cv-150-SPM
Stephen P. McGlynn,
Judge.
O R D E R
Tevin Bivins, a federal prisoner, petitioned for a writ of habeas corpus, 28 U.S.C.
§ 2241, arguing that he improperly lost good-time credit for possessing an item capable
of igniting a fire. The district judge denied his petition, correctly reasoning that the
disciplinary proceedings complied with due process. We affirm.
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 22-1791 Page 2
In 2018 a prison officer found a spatula and an improvised electrical device
known as a “stinger” in the common area of Bivins’s cell. Bivins was cited in an incident
report for two rules violations: possessing a “hazardous tool” (the stinger) and
possessing something “not authorized” (the spatula).
Bivins was disciplined on both counts after a hearing. He admitted to possessing
the stinger and argued instead that it was not hazardous. He called no witnesses. The
hearing officer found Bivins guilty based on his admission and the incident report, in
which an officer reported that the stinger was wrapped in towels and could start fires.
Bivins lost good-time credit (41 days) and privileges (no commissary for two months
and no e-mail for three months), and he went to disciplinary segregation for a month.
Bivins sought administrative review, arguing for the first time that the contraband was
not his. He furnished an affidavit from another prisoner who claimed responsibility for
it. He also argued that the contraband was found in the common area of his cell, so he
could not be guilty. His internal appeals were denied.
Bivins next petitioned for a writ of habeas corpus, contending that the discipline
was based on insufficient evidence in four respects: (1) the stinger was not hazardous;
(2) the affidavit from the other prisoner exculpated him; (3) the officer who wrote the
incident report was not credible; and (4) the items were found in a common cell area
and could have belonged to another prisoner. The district judge rejected each argument.
He explained that based on the latitude granted to prison officials to address safety, the
finding that the stinger was hazardous was sound; the evidentiary weight of the
prisoner’s affidavit and the officer’s credibility fell outside the limited scope of habeas
review; and Bivins’s constructive possession of contraband in the common area of his
cell supported the finding of guilt.
On appeal Bivins maintains that the evidence is insufficient to support his
disciplinary sanctions. In his opening brief, he reiterates his claim that he cannot be
guilty because another prisoner swore responsibility for the stinger. Like the district
judge, we reject this argument. Due process requires that prison discipline be preceded
by certain procedural protections and supported by “some evidence.” Superintendent,
Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985). The discipline against Bivens satisfied
this standard for two reasons.
First, Bivins never furnished the prisoner’s affidavit to the hearing officer, and
due process does not include a right to submit additional evidence on administrative
appeal from a hearing officer’s decision. McPherson v. McBride, 188 F.3d 784, 787

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No. 22-1791 Page 3
(7th Cir. 1999). Bivins responds that the prisoner’s affidavit is not in the record because
during the investigation of the charges, he was “denied access” to the prisoner, who
was in segregated housing at the time. This is irrelevant. Prisoners have a due-process
right, when consistent with institutional safety and correctional goals, to call witnesses
at a disciplinary hearing. Hill, 472 U.S. at 454. But Bivens never asked to call this
prisoner as a witness at his hearing.
Second, even if another prisoner claimed responsibility for the stinger, the
warden correctly argues that Bivins’s own confession to possessing the stinger satisfies
the “some evidence” standard. See Scruggs v. Jordan, 485 F.3d 934, 940 (7th Cir. 2007).
Bivins does not dispute this point; instead, in his reply brief, he insists that his
confession was coerced and we should thus disregard it. Arguments like this one—
raised for the first time in a reply brief and not at all in the district court—are waived.
White v. United States, 8 F.4th 547, 552 (7th Cir. 2021). In any event, the “some evidence”
standard is satisfied even without the confession. As the district judge explained, Bivins
had constructive possession of the contraband, which was found in the common area of
his cell to which he had undisputed access. “[W]here only a few inmates have access” to
contraband found in a common space (and Bivins has not argued that it was more than
a few), “[t]he proposition that constructive possession provides ‘some evidence’ of guilt
… is unproblematical.” Hamilton v. O’Leary, 976 F.2d 341, 345 (7th Cir. 1992).
Finally, in his reply brief, Bivins repeats his argument that the stinger was not
hazardous and could not start a fire or harm anyone. Although he raised this argument
at his disciplinary hearing and in the district court, he did not raise it in his opening
brief on appeal, and it is thus waived. White, 8 F.4th at 552. In any case, the officer who
prepared the incident report explained that the stinger could start a fire. That is “some
evidence” of the stinger’s danger. With that standard met, this court may not reweigh
that evidence or assess, as Bivins would like us to, the officer’s credibility. Hill, 472 U.S.
at 455.
AFFIRMED

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