Bogue, Jr. v. Vaughn , 439 F. App'x 700 ( 2011 )


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  •                                                                        FILED
    United States Court of Appeals
    Tenth Circuit
    September 2, 2011
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    FOR THE TENTH CIRCUIT
    TIMOTHY SHAWN BOGUE, JR.,
    Petitioner-Appellant,
    v.                                                   No. 10-7080
    (D.C. No. 6:08-CV-00442-JHP-KEW)
    MARVIN VAUGHN, Warden,                                (E.D. Okla.)
    Respondent-Appellee.
    ORDER AND JUDGMENT *
    Before BRISCOE, Chief Judge, EBEL and O’BRIEN, Circuit Judges.
    We confront an issue regarding the extent to which a prisoner’s request for
    the prison to produce relevant and available videotape recordings to use at his
    disciplinary hearing may be satisfied by a prison official’s review and report of
    the content of the recordings. In this case the prisoner’s right to inspect and
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument. This order and judgment is
    not binding precedent, except under the doctrines of law of the case, res judicata,
    and collateral estoppel. It may be cited, however, for its persuasive value
    consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    introduce relevant first hand evidence must give way to the prison’s security
    concerns and procedures.
    In 2005 a fight between African-American and white inmates broke out
    among a large group of prisoners incarcerated at the Cimarron Correctional
    Facility (CCF) in Cushing, Oklahoma, a prison privately owned and operated by
    Corrections Corporation of America (CCA) and housing Oklahoma Department of
    Corrections inmates. As a result of the melee, one prisoner was killed and several
    others were injured. Petitioner Timothy Shawn Bogue, Jr., who was among the
    injured, was charged with misconduct for his part in the disturbance. At a
    disciplinary hearing Bogue was found guilty of Group Disruptive Behavior. His
    punishment included the revocation of 365 days earned credit, assignment to
    thirty days in disciplinary segregation, and a reduction in earned-credit level.
    Bogue pursued and exhausted available administrative remedies. Thereafter, he
    sought relief from Oklahoma state courts without success.
    Bogue then turned to the federal courts. Among other things, his 
    28 U.S.C. § 2241
     habeas petition asserts that Warden Vaughn and other CCF officials
    violated his right to due process by failing to allow him to review the videotape
    recordings of the incident and, if necessary, submit them into evidence at his
    disciplinary hearing. The district court denied the petition and dismissed the
    case. In holding “some evidence” in the record supported the conclusion
    resulting from the disciplinary hearing, see Superintendent, Mass. Corr. Inst.,
    -2-
    Walpole v. Hill, 
    472 U.S. 445
    , 454 (1985), the district court noted “[t]he
    videotape of the incident was in the custody of the [Oklahoma State Bureau of
    Investigation], but it was viewed by the investigator who reported in his Review
    of Evidence that he identified petitioner as a participant in the group disturbance
    by viewing the videotape made with a hand held camera.” R. at 166. Bogue
    timely sought a Certificate of Appealability (COA) on several grounds.
    We granted a COA 1 on one issue: “Whether [Bogue] was denied due
    process because he was not allowed to present as evidence the videotape of the
    prison disturbance and was not allowed to view the videotape himself[,]” see
    Bogue v. Vaughn, No. 10-7080, Order (10th Cir. May 24, 2011) (per Hartz, J.,)
    (unpublished). We now affirm. 2
    I. DISCUSSION
    Because we are reviewing the denial of a § 2241 petition, 3 “the deference
    1
    In order to appeal the denial of habeas relief in his § 2241 proceeding,
    Bogue must obtain a certificate of appealability (COA) from this court. Dulworth
    v. Jones, 
    496 F.3d 1133
    , 1135 (10th Cir. 2007). To warrant such certification,
    Bogue must make “a substantial showing of the denial of a constitutional right.”
    
    28 U.S.C. § 2253
    (c)(2). “A petitioner satisfies this standard by demonstrating
    that jurists of reason could disagree with the district court’s resolution of his
    constitutional claims or that jurists could conclude that the issues presented are
    adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell,
    
    537 U.S. 322
    , 327 (2003). All but one of Bogue’s claims fail to clear the COA
    hurdle.
    2
    Our jurisdiction derives from 
    28 U.S.C. §§ 1291
     and 2253(a).
    3
    Bogue properly framed his habeas petition as pursuant to 
    28 U.S.C. § 2241
    (continued...)
    -3-
    normally accorded state court judgments under § 2254 does not apply. Instead,
    we review habeas claims made pursuant to § 2241, 4 including [Bogue’s],
    de novo.” Walck v. Edmondson, 
    472 F.3d 1227
    , 1235 (10th Cir. 2007). While we
    construe Bogue’s pro se pleadings liberally, Haines v. Kerner, 
    404 U.S. 519
    ,
    520-21 (1972), “we must refrain from usurping the role of prison administrators
    while protecting the constitutional rights of the inmates,” Mitchell v. Maynard,
    
    80 F.3d 1433
    , 1443 (10th Cir. 1996).
    A. Due Process
    Because Oklahoma inmates possess a liberty interest in earned credits,
    Wallace v. Cody, 
    951 F.2d 1170
    , 1172 n.1 (10th Cir. 1991), superseded by statute
    3
    (...continued)
    because he is challenging the execution of his sentence – the revocation of 365
    days earned credit. Had he challenged the validity of his conviction or sentence,
    he would have needed to proceed under 
    28 U.S.C. § 2254
    . See Montez v.
    McKinna, 
    208 F.3d 862
    , 865 (10th Cir. 2000).
    4
    In several instances, the language of § 2254 clearly indicates
    that its provisions are only operable as to a petition for habeas relief
    filed by “a person in custody pursuant to the judgment of a State
    court.” See 
    28 U.S.C. § 2254
    (a), (b), (d), (e). [O]ur prior cases have
    established that the somewhat ambiguous term “judgment of a State
    Court” within § 2254 refers only to conviction and sentence, see
    Dulworth v. Evans, 
    442 F.3d 1265
    , 1268 (10th Cir.2006); McIntosh
    v. United States Parole Comm'n, 
    115 F.3d 809
    , 811 (10th Cir.1997).
    The deferential standard of review contained within § 2254 is,
    therefore, only properly invoked when an individual in state custody
    collaterally attacks the validity of a state conviction and/or sentence.
    Walck v. Edmondson, 
    472 F.3d 1227
    , 1234 (10th Cir. 2007) (citations omitted).
    This case is not an attack on Bogue’s state conviction or sentence.
    -4-
    on other grounds as recognized in Magar v. Parker, 
    490 F.3d 816
     (10th Cir.
    2007), they are entitled to due process protection before being deprived of those
    credits. Wolff v. McDonnell, 
    418 U.S. 539
    , 557 (1974). When a prison
    disciplinary hearing may result in the loss of earned credits, a prisoner must be
    accorded “(1) advance written notice of the disciplinary charges; (2) an
    opportunity, when consistent with institutional safety and correctional goals, to
    call witnesses and present documentary evidence in his defense; and (3) a written
    statement by the factfinder of the evidence relied on and the reasons for the
    disciplinary action.” Hill, 
    472 U.S. at 454
     (emphasis added); Wolff, 
    418 U.S. at 563-67
    . “[R]revocation of good time does not comport with the minimum
    requirements of procedural due process unless the findings of the prison
    disciplinary board are supported by some evidence in the record.” Hill, 
    472 U.S. at 454
     (citation and quotation omitted).
    That being said, however, “[p]rison disciplinary proceedings are not part of
    a criminal prosecution, and the full panoply of rights due a defendant in such
    proceedings does not apply.” Wolff, 
    418 U.S. at 556
    .
    [C]onsideration of what procedures due process may require under
    any given set of circumstances must begin with a determination of
    the precise nature of the government function involved as well as of
    the private interest that has been affected by governmental action.
    Viewed in this light it is immediately apparent that one cannot
    automatically apply procedural rules designed for free citizens in an
    open society, or for parolees or probationers under only limited
    restraints, to the very different situation presented by a disciplinary
    proceeding in a state prison.
    -5-
    
    Id. at 560
     (citations and internal quotation marks omitted).
    Although the right of a prisoner to call witnesses and present documentary
    evidence is at the heart of the Wolff requirements, the right is “necessarily
    circumscribed by the penological need to provide swift discipline in individual
    cases.” Ponte v. Real, 
    471 U.S. 491
    , 495 (1985). The right to call witnesses is
    further subject to the “mutual accommodation between institutional needs and
    objectives and the provisions of the Constitution.” 
    Id.
     (internal quotation marks
    omitted). “[A]s with a prisoner’s request to call a particular witness, prison
    officials are required to consider a request for documentary evidence on an
    individualized basis.” Howard v. United States Bureau of Prisons, 
    487 F.3d 808
    ,
    813 (10th Cir. 2007). “Prison officials must have the necessary discretion to keep
    the hearing within reasonable limits and to refuse to call witnesses that may
    create a risk of reprisal or undermine authority[.]” Wolff, 
    418 U.S. at 566
    .
    A decision to disallow the presentation of a witness or other evidence will pass
    due-process muster so long as the reasons for doing so are “logically related to
    preventing undue hazards to institutional safety or correctional goals.” Ponte,
    
    471 U.S. at 497
     (internal quotation marks omitted). Indeed, the Supreme Court
    has noted:
    Given these significant limitations on an inmate’s right to call
    witnesses, and given our further observation in Wolff that “[w]e
    -6-
    should not be too ready to exercise oversight and put aside the
    judgment of prison administrators,” it may be that a constitutional
    challenge to a disciplinary hearing . . . will rarely, if ever, be
    successful.
    
    Id. at 499
     (quotation omitted).
    Against this backdrop, we examine the particulars of Bogue’s due-process
    claim. Overall Bogue insists he was an innocent bystander, was not involved in
    the violence and was injured because he could not get away. He claims the
    videotapes will substantiate his position. 5 He clearly asked for the videotapes
    well before his disciplinary hearing. R. at 33.
    In lieu of producing actual evidence, CCF regulations allow investigating
    officers to complete a detailed description of evidence, known as a “Review of
    Evidence,” which is then attached to the Offense Report. That was done in this
    case. In response to Bogue’s request for the videotapes, a CCF official prepared a
    Witness Discretionary Action Record in which he stated “there is no video tape to
    use as evidence. The video tape isn’t in CCA possession but in OSBI [Oklahoma
    State Bureau of Investigation] custody.” 6 R. at 104. The officer thus declared the
    5
    There were two sources of videotape. One was a fixed camera mounted
    outside the perimeter fence which showed the recreation yard and the weight pile.
    According to CCF officials, “[t]his portion of the tape recording shows a mass of
    prisoners engaged in fighting, and there is no indication that any inmate is not
    involved at some point in the melee.” R. at 120 (Group Disturbance Incident
    Summary). The second camera was hand held and recorded “inmates entering the
    gym from the weight area at the conclusion of the incident.” Id.
    6
    Although there is no evidence in the record to support it, respondent’s brief
    (continued...)
    -7-
    tapes unavailable for the disciplinary hearing. Id. at 52.
    As an accommodation for the fact that it could not access the actual
    videotapes, respondent dispatched a staff member to the OSBI office to view the
    tapes “for the sole purpose of identifying participants in the incident.” Id. at 120.
    According to the officer, review of tape from the fixed camera showed “a mass of
    prisoners engaged in fighting, [with] no indication that any inmate [was] not
    involved at some point in the melee.” Id. The officer who reviewed the tape
    from the hand-held camera also personally witnessed the fight and identified
    Bogue “as a participant in the group disturbance as he was identified on the
    weight pile immediately after the disturbance.” Id. at 34, 119. Bogue was given
    a copy of the Review of Evidence describing the contents of the videotapes and
    the Offense Report and was allowed to read both documents into the record at the
    hearing. Id. at 72-73.
    Vaughn now argues “[m]aking a written record of observations is a
    reasonable accommodation, based on the security requirements of the OSBI to
    preserve the evidence in a criminal case involving the murder of an inmate
    coupled with the need to provide[] due process appropriate to the situation.”
    Answer Br. at 8. We agree. Under these circumstances, Bogue was not deprived
    of due process.
    6
    (...continued)
    maintains the OSBI would not release the videotapes to a private prison. Answer
    Br. at 7.
    -8-
    A prisoner’s right to access documentary evidence in a disciplinary setting
    is circumscribed by the need to determine “the precise nature of the government
    function involved as well as of the private interest that has been affected by
    governmental action.” Wolff, 
    418 U.S. at 560
    . The right can be exercised as long
    as doing so “will not be unduly hazardous to institutional safety or correctional
    goals.” 
    Id. at 566
    .
    Here the initial government function involved the State’s need to
    investigate a deadly altercation at one of its prisons involving warring groups.
    The videotape evidence was likely critical to the State’s legitimate need to punish
    the participants in the disturbance, thereby deterring such violent conduct in the
    future. Failure to bring the participants to justice could easily be “hazardous to
    institutional safety and correctional goals” at some future date. But that
    overarching goal is not particularly relevant to the immediate issue.
    Here, Bogue’s interest in obtaining the videotapes (to demonstrate he did
    not participate in the melee and therefore should not lose his earned credits) must
    be balanced against the state’s need to efficiently and effectively deal with
    prisoner discipline (rather than its original investigative purpose). As a general
    matter, institutional concerns may dictate reliance on a summary of videotape
    evidence in lieu of providing a prisoner with access to the tape itself. Wolff
    requires prisoners be allowed to present documentary evidence but only when
    permitting them to do so “will not be unduly hazardous to institutional safety or
    -9-
    correctional goals.” 
    Id. at 566
    . If introducing the actual tape into evidence or
    permitting an inmate to view all of the tape of an entire incident poses the risk of
    reprisals against other inmates, danger to guards, or additional prison conflict,
    prison authorities are well within their discretion to devise ways to avoid those
    risks.
    The reality is that disciplinary hearings and the imposition of
    disagreeable sanctions necessarily involve confrontations between
    inmates and authority and between inmates who are being disciplined
    and those who would charge or furnish evidence against them.
    Retaliation is much more than a theoretical possibility; and the basic
    and unavoidable task of providing reasonable personal safety for
    guards and inmates may be at stake, to say nothing of the impact of
    disciplinary confrontations and the resulting escalation of personal
    antagonism on the important aims of the correctional process.
    
    Id. at 562
    .
    “There is much play in the joints of the Due Process Clause.” Wolff,
    
    418 U.S. at 567
    . On these facts the procedure employed was within Vaughn’s
    discretion, Wolff, 
    418 U.S. at 566-67
    , and was a reasonable accommodation of
    Bogue’s needs; it appropriately balanced them against “institutional needs and
    objectives and the provisions of the Constitution that are of general application.”
    
    Id. at 556
    . This case is not significantly different from other prison disciplinary
    proceedings where the prison relies on oral or written reports from correctional
    officers detailing the results of their investigations – often purely hearsay
    evidence. See, e.g., Taylor v. Wallace, 
    931 F.2d 698
    , 701 (10th Cir. 1991). Since
    Vaughn no longer possessed the videotapes and, apparently, could not readily
    -10-
    obtain them7 he was within his discretion to dispatch an officer to review the
    tapes and report as to their contents. In addition, permitting Bogue to view the
    recordings might well have compromised prison security by revealing its means
    and methods of surveillance and response to riots or near riots. Moreover, some
    of the information on the tapes about guards and other inmates might well have
    been subject to misuse by Bogue and otherwise present collateral problems
    impacting prison security and administration.
    The administrative review concluded “the degree of [Bogue’s] attempted
    involvement in the event may be questioned, nonetheless it still occurred.” R. at
    72. The process leading to that conclusion was hardly robust, but under the
    circumstances it was all that was due.
    B.    Issues not Warranting a COA
    In his application for a COA, Bogue also argues there was insufficient
    evidence to support the prison disciplinary decision. As mentioned, however, due
    process requires only that the decision of the hearing officer be supported by
    “some evidence.” Hill, 
    472 U.S. at 455
    . “A disciplinary . . . decision can be
    7
    “Because the only federal right at issue is procedural, the relevant inquiry
    is what process [Bogue] received, not whether the [Disciplinary Hearing Officer
    and] the state court[s] decided the case correctly.” Swarthout v. Cooke, 
    131 S. Ct. 859
    , 863, rehearing denied, 
    131 S. Ct. 1845
     (2011). We also note this matter
    does not involve lost or destroyed evidence as was the case in Arizona v.
    Youngblood, 
    488 U.S. 51
     (1988), but rather presents an issue of how far prison
    officials must go to produce existing evidence no longer in their possession or
    control.
    -11-
    unheld by a reviewing court even if the evidence supporting the decision is
    meager.” Howard, 
    487 F.3d at 812
    . As discussed, there was enough evidence of
    Bogue’s guilt to satisfy the some-evidence standard.
    Bogue cites Zavaro v. Coughlin, 
    970 F.2d 1148
     (2d Cir. 1992), to support
    his due-process claim. Zavaro held the some-evidence standard was not met in a
    disciplinary proceeding against an inmate who was one of 100 present at the site
    of a riot. 
    Id. at 1152-53
    . The sole evidence against the inmate was statements by
    guards that every inmate had participated in the riot. 
    Id.
     The court ruled the
    statements inadequate because “such all-inclusive statements about the conduct of
    one hundred or so inmates in a mess hall—especially coming from guards who
    were at the time being assaulted—are so blatantly implausible when taken
    literally that they do not constitute even ‘some evidence’ of a particular inmate’s
    guilt.” 
    Id. at 1152
    . Of course the Second Circuit’s decision is not binding; but
    equally important, the cases are quite different. Unlike in Zavaro, where the
    allegation that all inmates were involved in the melee came from a guard who was
    being assaulted, the allegations here resulted from a more circumspect and
    dispassionate review of video evidence (by an officer who had been present). In
    addition, the officer’s review established that Bogue, in particular (not merely as
    one of all inmates), participated to some degree in the melee.
    Bogue also argues he was denied due process because the Oklahoma
    Department of Corrections did not abide by its own time limits. But a violation of
    -12-
    state law is not a violation of constitutional due process. See Hulen v. Yates,
    
    322 F.3d 1229
    , 1247 (10th Cir. 2003) (“in deciding whether a state has violated a
    person’s constitutional right to procedural due process, we should pay no attention
    to whether the state has complied with procedures mandated by state law”).
    In his reply brief, Bogue contends the notice of charge he received was
    constitutionally deficient. Ordinarily, this court does not address issues raised for
    the first time in a reply brief. Stump v. Gates, 
    211 F.3d 527
    , 533 (10th Cir. 2000).
    Even if we were to consider the issue, however, we would not grant a COA. The
    record contains a copy of the Offense Report given Bogue after the incident.
    R. at 32. It indicates the date, time, and place of the Group Disruptive Behavior,
    describes the incident and notes Bogue’s participation in it. An Amended Offense
    Report was given to Bogue some months later after prison officials had reviewed
    the tape made by the hand-held camera. Id. at 57. The Amended Report similarly
    informed Bogue of the particulars of the charge against him. These reports were
    given to Bogue well in advance of his disciplinary hearing giving him adequate
    opportunity “to marshal the facts in his defense and to clarify what the charges
    [were], in fact.” See Wolff, 
    418 U.S. at 564
    .
    Because none of these issues constitutes “a substantial showing of the
    denial of a constitutional right,” see 
    28 U.S.C. § 2253
    (c)(2), and because no jurist
    of reason could disagree with the district court’s resolution of these claims, we
    deny a COA on them and dismiss the portion of the appeal addressing them.
    -13-
    The judgment of the district court as to the videotape-production issue
    (upon which we granted a COA) is AFFIRMED. 8
    Entered for the Court
    Terrence L. O’Brien
    Circuit Judge
    8
    The district court granted permission to appeal without prepayment of fees
    (IFP), but not before Bogue filed a similar motion in this court. His motion for
    IFP to this court is therefore denied as moot.
    -14-