Brent Douglas Cole v. R.d. Keyes

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 23, 2023*
Decided June 28, 2023
Before
DIANE P. WOOD, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 22-3018
BRENT DOUGLAS COLE,
Petitioner-Appellant,
v.
R.D. KEYES,
Respondent-Appellee.
Appeal from the United States District
Court for the Western District of Wisconsin.
No. 20-cv-453-wmc
James D. Peterson,
Chief Judge.
O R D E R
Brent Cole is serving 355 months’ imprisonment for shooting and injuring a
federal Bureau of Land Management ranger and an assisting state officer. The sentence
was imposed in the Eastern District of California, United States v. Cole, 722 F. App’x 749
(9th Cir. 2018) (affirming), where Cole’s 2019 request to vacate the judgment under
* Appellee R.D. Keyes was not served with process and is not participating in this
appeal. We have agreed to decide the case without oral argument because the brief and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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28 U.S.C. § 2255 remains pending after extensive motions practice, United States v. Cole,
2:14-cr-00269-WBS-DB-1 (E.D. Cal., § 2255 motion filed on criminal docket Nov. 8, 2019).
While Cole was serving this sentence at the Federal Correctional Institute in Oxford,
Wisconsin, he lost 27 days’ good-time credit as discipline for fighting. See 28 C.F.R.
§ 541.3, Table 1, Offense 201. Cole then petitioned the district court in the Western
District of Wisconsin for a writ of habeas corpus under 28 U.S.C. § 2241. That court
denied the petition, rejecting Cole’s three disparate theories: that he should not be
disciplined for fighting because he meant only to defend others and restore peace; that
he needs better medical care and access to the courts; and that perceived delays in his
§ 2255 action in California entitle him to review in Wisconsin of his conviction and
sentence. We affirm.
We note initially that although Cole was transferred to FCI Sandstone in
Minnesota (in the Eighth Circuit) after he filed his petition but before it was denied, this
transfer does not affect the district court’s jurisdiction or ours. See In re Hall, 988 F.3d
376, 378 (7th Cir. 2021) (district court); Gamboa v. Daniels, 26 F.4th 410, 414 (7th Cir. 2022)
(circuit court). We turn, then, to Cole’s arguments.
In his appellate brief, Cole does not contest the discipline for fighting. But he
does in his separate jurisdictional memorandum, insisting that officers should have
heeded his defense that he was a “Good Samaritan” who used force only to protect one
prisoner from another. The disciplinary hearing officer considered but dismissed this
theory because Cole was not authorized to restrain another prisoner and, in any event,
Cole did not stop when staff told him to. Even if Cole’s jurisdictional memorandum
preserves this argument for appeal, the district court was right to deny it. Cole has not
identified any rule authorizing federal prisoners to use physical force in defense of
others, our own research has unearthed none, and we have repeatedly held that
due process does not require prisons to allow such a defense in disciplinary
proceedings. See Jones v. Cross, 637 F.3d 841, 847 (7th Cir. 2011); Scruggs v. Jordan,
485 F.3d 934, 939 (7th Cir. 2007); Rowe v. DeBruyn, 17 F.3d 1047, 1052–53 (7th Cir. 1994).
Next, Cole asserts in the same jurisdictional memorandum that, contrary to the
district court’s ruling, his various complaints about prison medical care and access to
courts (the details of which we omit here) belong in this habeas corpus action, rather
than in a civil rights action under, for instance, Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388 (1971). See Carlson v. Green, 446 U.S. 14, 20 (1980) (federal prisoners
can sometimes challenge healthcare decisions under Bivens). But his argument is
foreclosed by Glaus v. Anderson, 408 F.3d 382, 387–88 (7th Cir. 2005). As the district court

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No. 22-3018 Page 3
observed, its denial of this action will not bar any valid challenge to conditions of
confinement in a proper civil rights action, but habeas corpus is not the correct vehicle
for Cole to pursue such relief.
In his appellate brief, Cole also contends that delay in the Eastern District of
California renders his § 2255 proceedings “inadequate or ineffective” to test the legality
of his convictions and sentence, 28 U.S.C. § 2255(e), thus opening habeas corpus courts
in this circuit to a wide variety of his challenges. Cf. Jones v. Hendrix, 599 U.S. ___, (June
22, 2023) (slip op.) (eliminating § 2255(e) review for federal prisoners seeking to enforce
new interpretation of criminal statute). We disagree. Even if we assumed that unfairly
delayed § 2255 proceedings in one district court could lead to habeas corpus review in
another—an unlikely assumption after Jones—Cole himself is responsible for much of
the asserted delay here. After filing his collateral attack in late 2019, he followed up
with a stream of supplemental filings requiring action from the court or government,
most recently in December 2022. No authority suggests to us that this timeline entitles
Cole to pursue collateral review here instead of completing his pending action in the
sentencing court. Cf. Evans v. Wills, 66 F.4th 681, 685–86 (7th Cir. 2023) (excusing
exhaustion of state remedies for Illinois prisoner after two-decade delay); Stirone v.
Markley, 345 F.2d 473, 475 (7th Cir. 1965) (declining to foreclose theoretical possibility
that “refusal to entertain a section 2255 motion or an inordinate delay in its disposition”
in another circuit would open the door to habeas corpus review in this circuit).
Finally, Cole suggests that the Northwest Ordinance, an eighteenth-century
statute on land ownership, statehood, and slavery, has some bearing on his access to
habeas corpus here. But no connection between that law and this case is apparent.
AFFIRMED

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