Aaron Isby v. Delana Gardner

In 1988, Isby was convicted of robbery and sentenced to 30 years' imprisonment. In 1990, while serving that sentence, he stabbed two correctional officers. In 1992, he was convicted of battery and attempted murder and sentenced to 40 years and 6 months' imprisonment, to be served consecutively to his existing robbery sentence. He completed his robbery sentence in 2008 and began serving his sentence for attempted murder in February 2009.^†

Isby suggests that at various points while serving his robbery sentence, he lost good-time credit because of disciplinary infractions. In 2022, Isby petitioned IDOC for restoration of the good-time credit lost while serving his robbery sentence. IDOC determined that Isby was ineligible for restoration because he had completed his robbery sentence and good-time credit could not be restored to a sentence that had been fully served.

Isby then filed an application for a writ of habeas corpus in Indiana state court under I ND. CODE § 34-25.5-2-1, asserting that he had been improperly denied restoration of good-time credit and was entitled to immediate release. The state trial court denied his petition, the state appellate court affirmed, and the Indiana Supreme Court denied his petition for review.

Isby then filed a petition for writ of habeas corpus in the district court. He claimed that IDOC had erred in denying his request to restore his good-time credit by wrongfully applying the 2015 version of IDOC Policy 02-04-101, which governs restoration of good-time credit, instead of the 1990 version of that policy—the version in effect when he committed attempted murder. The 2015 policy expressly provides that restoration of good-time credit is available only while the sentence from which the time was lost is still being served. The 1990 policy, in contrast, is silent on this question. Isby maintained that if IDOC had applied the 1990 policy, he would be entitled to have good-time credit lost during his prior sentence restored. The effect of this error, he contended, extended the projected release date for his current sentence from 2023 to 2029, in violation of his rights under the Ex Post Facto Clause, as well as the Eighth and Fourteenth Amendments.

The Warden responded that restoration of lost good-time credit is discretionary and, in any event, IDOC policy never permitted restoration of credit lost during one sentence to shorten the duration of a subsequent sentence. The Warden noted that since † In the interim between serving his sentences for robbery and attempted murder, Isby also served a 90-day sentence for contempt of court.

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Isby began his current sentence in 2009, IDOC had revoked his good-time credit only once, and that revocation had been partially restored. Any other deprivations of good-time credit occurred prior to Isby's current sentence. In support of her argument, the Warden submitted a declaration attesting to these facts from Jennifer Farmer, the Director of IDOC's Sentence Computation/Release Unit.

The district court concluded that there was no deprivation of a constitutional right protected under the Ex Post Facto Clause because the IDOC policy was an administrative agency's interpretation of law and thus not a "law" for purposes of ex post facto analysis. And, in any event, Isby had not suffered a deprivation that would warrant relief under the Clause because neither version of the IDOC policy entitled him to automatic restoration of his good-time credit. Further, the court noted that Isby's claims to additional good-time credit related to his prior sentence and explained that, under any version of the IDOC policy, deprivations that occurred in prior completed sentences are not eligible to be considered for restoration.

The court further concluded that the Eighth Amendment is not implicated in petitions concerning the restoration of credit time, and that Isby had no viable substantive due process claim because neither the Supreme Court nor this court has held that the Constitution confers a right to the restoration of good-time credit. Wolff v. McDonnell, 418 U.S. 539, 557 (1974). The district court further reasoned that while

"states must use appropriate procedures before revoking credits they have bestowed," Montgomery v. Anderson, 262 F.3d 641, 645 (7th Cir. 2001), Isby was not owed procedural due process for the restoration of good-time credits. The court held that Isby's claims failed as a matter of law and denied the petition. In its order, the court also denied Isby's pending discovery requests, including a motion to take Farmer's deposition. Isby appeals and, as no certificate of appealability is required, we proceed directly to the merits. Walker v. O'Brien, 216 F.3d 626 (7th Cir. 2000). Isby first contends that the district court erred in concluding that the application of the 2015 IDOC policy did not violate his rights under the Ex Post Facto Clause. "The United States Constitution prohibits any state from passing ex post facto laws—those that retroactively alter the definition of crimes or increase the punishment for criminal acts." Nelson v. Town of Paris, 78 F.4th 389, 395 (7th Cir. 2023) (internal quotation marks omitted). Isby contends that IDOC's 2015 policy effectively increases his punishment because it deprives him of the opportunity to seek retroactive restoration of credit time lost while serving his prior sentence. He assumes that, because the 1990 policy does not

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expressly restrict prisoners' ability to restore credit deprived during a prior sentence, such restoration is permitted.

Whether an Indiana prisoner may reduce a period of imprisonment by applying restored credit time lost during an earlier, but now completed, sentence is governed by statute, not IDOC policy. See I ND. CODE § 35-50-6-1(a) (2026). Every version of the law since 1977 has provided that restored credit time can be applied only while the sentence during which the credit time was lost is still being served. See id. § 35-50-6-1 (1977) ("A person imprisoned for a felony shall be released on parole when he completes his fixed term of imprisonment, less the credit time he has earned with respect to that term."

(emphasis added)). The phrase "with respect to that term" was enacted prior to Isby's robbery conviction in 1988 and remained in effect when he committed attempted murder in 1990. See id. § 35-50-6-1 (1981). Because the law has remained constant at all times relevant to Isby's claim, he has not been subjected to any increased punishment following his conviction. Nelson, 78 F.4th at 395.

Next, Isby suggests that both IDOC's refusal to restore credit time lost during a prior sentence and the denial of his discovery requests—including a request to depose Farmer—violate his right to due process under the Fourteenth Amendment. The 1990 IDOC policy does not—indeed, could not—provide the authority to restore credit lost after the sentence in which the deprivation occurs is completed because doing so would have been contrary to law. See I ND. CODE § 35-50-6-1 (1981). Indiana has created no liberty interest in restoration of credit time after a sentence is served. Id. Absent a liberty interest there can be no denial of due process. See Thompson v. Veach, 501 F.3d 832, 837 (7th Cir. 2007). As such, the discovery claim also fails because the requested discovery would not have provided a basis for relief. See Hubanks v. Frank, 392 F.3d 926, 933 (7th Cir. 2004). Farmer's deposition could not have adduced evidence bearing on Isby's statutory eligibility for the relief he sought.

Finally, Isby argues that the district court's denial of his discovery requests violated his Sixth Amendment right to confront witnesses against him. But there is no right to confront witnesses in civil cases, see Turner v. Rogers, 564 U.S. 431, 441 (2011), including habeas proceedings, see Wells v. Ryker, 591 F.3d 562, 564 (7th Cir. 2010).

AFFIRMED

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