Howard v. United States Bureau of Prisons

F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
May 23, 2007
UNITED STATES COURT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

C LIN TON H O WA RD ,

Petitioner-A ppellant,
v.
No. 06-3315
U N ITED STA TES B UR EA U OF
PRISONS,

Respondent-Appellee.

Appeal from the United States District Court
for the District of K ansas
(D .C . No. 04-CV-3115-RDR)

Submitted on the briefs: *

Clinton Howard, pro se.

Eric F. M elgren, United States Attorney, and D. Brad Bailey, Assistant United
States Attorney, District of Kansas, for Respondent-Appellee.

Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.

EBEL, Circuit Judge.

*
After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G ). The case is therefore ordered submitted without oral argument.
 Petitioner Clinton Howard, a federal inmate proceeding pro se, appeals the

dismissal of his petition for a writ of habeas corpus brought pursuant to 28 U.S.C.

§ 2241. 1 He argues that, during two disciplinary proceedings against him for

assaulting another prisoner and possessing drug paraphernalia, officials of the

federal penitentiary in Florence, Colorado, violated his due process rights.

Because M r. Howard was denied the opportunity to present potentially

exculpatory evidence at one of his hearings, we AFFIRM in part and VA CA TE

and REM AND in part.

I. Facts

On December 9, 2001, Clinton Howard, an inmate at the United States

Penitentiary in Florence, Colorado (“USP - Florence”), under the supervision of

the United States Bureau of Prisons (“the Bureau”), was involved in a fight with

another inmate (“Inmate X”). According to the observations of Officers Hash and

Sams, who witnessed at least the denouement of the altercation, M r. Howard was

chasing “Inmate X” in the prison yard and threw a homemade weapon at him but

missed. “Inmate X” then picked up the weapon and struck M r. H oward with it.

1
Because M r. H oward is a federal prisoner proceeding under 28 U.S.C. §
2241, we note that his appeal is not governed by the Antiterrorism and Effective
Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996),
and thus no certificate of appealability is required. M cIntosh v. U.S. Parole
Comm’n, 115 F.3d 809, 810 n.1 (10th Cir. 1997).

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Responding officers quickly separated the inmates, restrained them, and recovered

the weapon, an ice pick. M r. Howard was placed in administrative detention in

the Special H ousing U nit (“SH U ”) pending an investigation of the incident. An

incident report, Incident No. 945214, was filed by Officer Hash on December 10

charging M r. Howard with violating Bureau Codes 101A (Attempted Assault) and

104 (Possession of a W eapon).

W hile M r. Howard was in administrative detention, Officer Ford conducted

a routine inventory shakedown of Howard’s belongings on December 11, 2001.

Officer Ford discovered a hypodermic needle and syringe secreted among M r.

Howard’s legal papers. He filed an incident report, Incident No. 945874,

charging M r. Howard with violating Bureau Code 113 (Possession of Drug

Related Paraphernalia).

M r. Howard appeared before the Unit Disciplinary Committee (“UDC”) on

both charges at separate hearings on December 18 and 26, 2001. At the hearing

on Incident No. 945214, M r. Howard denied the assault and weapon possession

charges and asked that prison officials review videotape records from a camera

that he alleged captured the incident. At the hearing on Incident No. 945874, M r.

Howard denied possessing the syringe and argued that, while he was detained in

SH U , other inmates had had access to his belongings. In both cases, the UDC

referred the charges to a disciplinary hearing officer (“DHO”) for further hearing.

M r. Howard was provided with written notice of this DHO hearing and responded,

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requesting the attendance of three staff witnesses: Officer Sams; Lieutenant

Cunningham, the staff supervisor on duty on December 9; and P.A. Santos, who

treated M r. Howard and “Inmate X ” for injuries received during the fight.

At a consolidated hearing on the two incidents on February 15, 2002, M r.

Howard denied all violations and repeated his previously asserted defenses to the

charges. 2 M r. Howard’s requested witnesses did not appear, but they each

subm itted a w ritten statement w hich was considered by the DHO. The DHO

refused to consider the videotape evidence that M r. Howard alleged would

exonerate him. Relying on statements by Officers Hash and Ford, other reporting

staff members’ statements, other supporting documentation, and M r. Howard’s

denial, the DHO found M r. Howard had violated Bureau Codes 224 (Assaulting

Another Person), 104 (Possession of a Weapon), and 113 (Possession of Drug

R elated Paraphernalia). A s a result of the charges from each incident, the DHO

disallowed previously accumulated good-time credit, recommended disciplinary

segregation and a disciplinary transfer, suspended various privileges, and

impounded M r. Howard’s personal property. M r. Howard was subsequently

2
There are two versions of the DHO Report for Incident No. 945214 in the
record. The first is dated M ay 9, 2002, and reflects that How ard did not request
any witnesses and admitted his guilt of the weapon possession and assault
charges. (Rec. Doc. 8 att. D. at 3.) The second, marked as “Amended,” is dated
October 4, 2002, and reflects that Howard requested witnesses who were
unavailable and denied the charges. (Rec. Doc. 1 ex. D at 1.) No one explains
the emendation of the DHO report or why both reports were written so long after
the conclusion of the D H O hearing. However, we rely on the Amended DHO
Report.

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transfered to the United States Penitentiary at Leavenworth, Kansas (“USP -

Leavenworth”).

M r. Howard unsuccessfully pursued and exhausted the administrative

appeals open to him for both incidents. He then filed the instant petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the District of Kansas.

Following submissions by both parties, the district court dismissed the petition,

and M r. Howard filed this timely appeal.

II. Jurisdiction

M r. Howard argues on appeal that the District of Kansas lacked jurisdiction

over his petition because the underlying events took place at U SP - Florence.

Although M r. Howard did not raise this argument below, we must address it

briefly as a predicate to our exercise of jurisdiction. In this instance, the district

court’s jurisdiction over this petition is plain. “A petition under 28 U.S.C. § 2241

attacks the execution of a sentence rather than its validity and must be filed in the

district where the prisoner is confined.” Haugh v. Booker, 210 F.3d 1147, 1149

(10th Cir. 2000) (quoting Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996)).

Because M r. Howard was imprisoned in USP - Leavenworth when he filed his

petition, the District Court for the District of Kansas properly exercised

jurisdiction over his petition. Further, we have jurisdiction over the appeal

pursuant to 28 U.S.C. §§ 1291 and 2253.

III. Due Process Claim s

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 M r. Howard advances three claims before this court. First, he argues that

the evidence was insufficient to support the discipline meted out for possession of

drug paraphernalia. Second, he contends he was denied due process when the

DHO refused to permit M r. H oward’s requested witnesses to testify in person.

And finally, he claims the DHO’s refusal to produce and review a videotape of

the alleged assault constitutes a separate violation of his due process rights. The

district court dismissed each of these claims, and we review its conclusions of law

de novo. W ilson v. Jones, 430 F.3d 1113, 1117 (10th Cir. 2005).

“It is well settled ‘that an inmate's liberty interest in his earned good time

credits cannot be denied without the minimal safeguards afforded by the Due

Process Clause of the Fourteenth Amendment.’” M itchell v. M aynard, 80 F.3d

1433, 1444 (10th Cir. 1996) (quoting Taylor v. W allace, 931 F.2d 698, 700 (10th

Cir. 1991)). However, “[p]rison disciplinary disciplinary proceedings are not part

of a criminal prosecution, and the full panoply of rights due a defendant in such

proceedings does not apply.” W olff v. M cD onnell, 418 U.S. 539, 556 (1974).

W here a prison disciplinary hearing may result in the loss of good time
credits, . . . the inmate must receive: (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.

Superintendent, M ass. Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985). Further,

“revocation of good time does not comport with the minimum requirements of

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procedural due process unless the findings of the prison disciplinary board are

supported by some evidence in the record.” Id. (citation, quotation omitted).

A. Evidence of Possession of Drug Paraphernalia (Incident No. 945874)

“Ascertaining whether [the “some evidence”] standard is satisfied does not

require examination of the entire record, independent assessment of the credibility

of witnesses, or weighing of the evidence. Instead, the relevant question is

whether there is any evidence in the record that could support the conclusion

reached by the disciplinary board.” Id. at 455-56. A disciplinary board’s

decision can be upheld by a reviewing court “even if the evidence supporting the

decision is ‘meager.’” M itchell, 80 F.3d at 1445 (quoting Hill, 472 U.S. at 457).

M r. Howard’s conclusory arguments to the contrary, the evidence

supporting his disciplinary sentence for possession of drug paraphernalia easily

meets the Hill standard. It is indisputable that M r. Howard, who had been placed

in administrative detention at the time of Officer Ford’s inventory shakedown of

his possessions, did not have actual possession of the hypodermic syringe Officer

Ford discovered. However, Officer Ford’s incident report indicates the

contraband was found among M r. Howard’s legal papers confiscated during the

time of his detention, and this is “some evidence” sufficient to support the

disciplinary sentence on a theory of constructive possession. Cf. Hamilton v.

O’Leary, 976 F.2d 341, 345 (7th Cir. 1992) (“The proposition that constructive

possession provides ‘some evidence’ of guilt when contraband is found where

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only a few inmates have access is unproblematical.”) M r. Howard’s loss of good-

time credits for this infraction thus did not violate his due process rights.

B. Exclusion of Live W itness Testimony (Incident No. 945214)

“Chief among the due process minima outlined in W olff was the right of an

inmate to call and present witnesses and documentary evidence in his defense . . .

.” Ponte v. Real, 471 U.S. 491, 495 (1985). But this right is not absolute; rather

it is “circumscribed by the necessary ‘mutual accommodation between

institutional needs and objectives and the provisions of the Constitution that are

of general application.’” Baxter v. Palmigiano, 425 U.S. 308, 321 (1976) (quoting

W olff, 418 U.S. at 556). Because of the “greater hazards to institutional

interests” posed by confrontation and cross-examination, “there is no general

right to confront and cross-examine adverse witnesses” in the context of prison

disciplinary proceedings. Id. at 321, 322 n.5 (citation omitted). And while prison

officials must consider an inmate’s request “to call or confront a particular

witness . . . on an individualized basis,” Ramer v. Kerby, 936 F.2d 1102, 1105

(10th Cir. 1991), “errors made by prison officials in denying witness testimony at

official hearings are subject to harmless error review,” Grossman v. Bruce, 447

F.3d 801, 805 (10th Cir. 2006).

M r. Howard requested the testimony of three witnesses at his hearing

before the DHO: Officer Sams, Lieutenant Cunningham, and P.A. Santos. W hile

none of the three testified in person, each submitted w ritten statements. M r.

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Howard contends that the testimony of Officer Sams, who witnessed part of the

incident, was necessary to his defense. In his write-up of the incident, Sams

stated that he “saw what appeared to be a homemade weapon throne [sic] by an

unknown person towards [Inmate X]. [Inmate X] then picked up the homemade

weapon[.] Using the weapon [Inmate X] started after inmate Howard . . . striking

him in the upper torso and head area.”

This testimony is entirely consistent with that provided by Officer Hash,

who wrote the incident report on which the D HO’s findings relied. Officer Hash

reported seeing M r. H oward “chasing [Inmate X] . . . w ith [a] homemade weapon.

Inmate Howard attempted to assault [Inmate X] by throwing the weapon at

[Inmate X and] missing him.” In a separate m emo, Officer H ash had previously

stated that, after M r. Howard threw the weapon, “[Inmate X] then picked up the

weapon and started after inmate Howard.”

The abbreviated description provided in Officer Sams’s written statement

does not conflict with the events as reported by Officer Hash. Although M r.

Howard argues that Officer Sams’s statement was ambiguous, he has not

demonstrated how further testimony would have aided his defense. As such, M r.

Howard was not prejudiced, and any error in excluding Officer Sams from

testifying in person was harmless. See Grossman, 447 F.3d at 805.

C. Exclusion of Videotape Evidence (Incident No. 945214)

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 In W olff, the Supreme Court drew no distinction between the standard

prison officials may use to refuse requests by an inmate to introduce documentary

evidence and that applying to requests to present witness testimony: “the inmate .

. . should be allowed to call witnesses and present documentary evidence in his

defense when permitting him to do so will not be unduly hazardous to

institutional safety or correctional goals.” 418 U.S. at 566. And, as 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. See

Grossman, 447 F.3d at 805.

In addition to his requested witness testimony, M r. Howard requested that

the DHO review videotape records from a camera which was allegedly sited atop

a neighboring building. 3 This plea merely reiterated a request M r. Howard had

consistently made before, one he clearly expected would bolster his argument that

he acted in self-defense. The Bureau has never asserted, and the record before us

does not support, a conclusion that producing the videotape alleged by M r.

Howard to have recorded the incident would be “unduly hazardous to institutional

3
Although the record does not provide conclusive proof that Howard
requested production of the tape at the DHO hearing, it provides strong inferential
support that he did so. (See Rec. Doc. 1 ex. G (Administrative Remedy Response
dated 11/01/02) (noting Howard’s contention that he was denied review of the
videotape); Rec. Doc. 13 at 2 (finding, in the district court below , that Howard
did request the tape at the hearing).)

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safety or correctional goals.” W olff, 418 U.S. at 566. The DHO’s unjustified

refusal to produce and review it deprived M r. Howard of the process due him.

The B ureau, responding to the district court’s show-cause order, raised tw o

arguments. It asserted, first, that M r. Howard had failed to demonstrate that any

videotape documenting the incident existed and, second, that in any event its

presentation w ould be “needlessly cumulative.” As to the Bureau’s first point, w e

note both that the Bureau has carefully refrained from denying that any videotape

exists and that the proof of this point is solely within its control. W e are

unconvinced, given M r. Howard’s specific allegations of self-defense and

exculpatory videotape evidence in the government’s exclusive possession, that

M r. Howard failed to carry whatever burden he may have had at that stage of the

proceedings. 4

W e find the second point equally unavailing. The Bureau noted that the

DHO based his decision on staff reports, and argued that, because “[p]rison staff

4
In this connection, we note that at least one other circuit has vigorously
enforced a long-standing rule requiring government disclosure of exculpatory
evidence in prison disciplinary proceedings, “unless that disclosure would unduly
threaten institutional concerns.” Rasheed-Bey v. Duckworth, 969 F.2d 357, 361
(7th Cir. 1992); see Chavis v. Rowe, 643 F.2d 1281, 1285-86 (7th Cir. 1981)
(holding that officials’ failure to disclose materially exculpatory evidence in a
prison disciplinary proceeding violates the inmate’s due process rights and is not
harmless error); see also 60 A M . J UR . 2d Penal & Corr. Insts. § 143 (noting that
“depriving a prisoner [of] an opportunity to present exculpatory evidence”
violates due process, citing Chavis). W e do not, in this case, need to go this far,
and so we do not in this case determine w hether or not to follow this line of cases.

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are legally obligated to tell the truth in disciplinary proceedings,” introducing

“any possible videotape would have been needlessly cumulative.” This Orwellian

argument would neatly dispose of any need to allow inmates to present evidence

contradicting statements of prison staff, a conclusion we are not prepared to

accept. See Ramer, 936 F.2d at 1104 (“[A]n assertion that a w itness’ testimony is

‘merely corroborative’ generally is insufficient to justify denial of an inmate’s

request to call witnesses w hen that inmate faces a credibility problem trying to

disprove the charges of a prison guard.” (citation omitted)). M oreover, the DHO

could not possibly have known the videotape was needlessly cumulative without

looking at it. W e do not question the truthfulness of the testimony provided by

Officers Sams and Hash when we note that neither may have w itnessed the entire

incident, and the critical facts of M r. Howard’s asserted defense may have been

recorded by the videotape before either officer arrived on the scene. On neither

ground advanced by the Bureau, then, can we agree that the refusal to produce

and review the videotape at M r. Howard’s hearing before the DHO would have

been “unduly hazardous to institutional safety or correctional goals.” W olff, 418

U.S. at 566.

The Bureau does not argue, nor are w e prepared to say on the record before

us, that the DHO’s refusal to review the videotape was harmless. 5 It is plain that,

5
In its response brief, the Government has advanced the theory that,
construing Howard’s argument as one arising under Brady v. M aryland, any due
(continued...)

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if M r. Howard is correct, the videotape would not have been “needlessly

cumulative” but would rather have constituted significant, perhaps conclusive,

evidence that might exonerate him of the acts charged against him. Rather,

liberally construing M r. Howard’s allegations as w e must for pro se plaintiffs,

Garcia v. Lemaster, 439 F.3d 1215, 1217 (10th Cir. 2006), M r. Howard has

successfully alleged that the DHO’s refusal to produce and review the videotape

prejudiced him based on his allegations that the tape would show he acted in self-

defense.

5
(...continued)
process violation stemming from its refusal to turn over the videotape was
harmless. Its argument in this regard depends on the contention that Howard’s
admitted conduct “would fit within the prison discipline definitions for possessing
a sharpened instrument and/or assault.” See Griffin v. Brooks, 13 Fed. App’x
861, 864 (10th Cir. 2001) (unpublished) (holding refusal to turn over an allegedly
exculpatory videotape was not prejudicial when the theory of exculpation was
legally incorrect). The Government, however, misconstrues the nature of
Howard’s admissions and fails to substantiate its contention that his admitted
conduct falls within the ambit of the regulatory language.
A lthough the G overnment states that Howard “admitted during the DHO
proceedings that he had actually picked up and thrown a sharpened object in the
direction of another inmate,” this contention is not supported by the record.
During the incident investigation, Howard stated that “[t]his fool came up on me
with a knife[;] when the fool dropped the knife, I picked it up and threw it at the
wall, not even in his direction.” (Rec. Doc. 8 att. D at 2 (Incident Report No.
945214).) The summary of H ow ard’s statement at the D HO hearing is far less
illuminating: “I was defending myself. I’m not mad with this inmate.” (Rec.
Doc. 1 ex. D at 1 (A mended DHO Report).)
Absent a demonstration that the admitted conduct shown by the record falls
within the legal definitions of possession and assault employed by Bureau Codes
104 and 224 and that on this record Howard has no affirmative defenses available
to these charges, we cannot label this constitutional violation harmless on logic
similar to that employed in Griffin. Instead, we remand to the district court for a
determination of harmlessness on a fuller factual record.

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 IV. Conclusion

M r. Howard’s arguments that his due process rights under W olff v.

M cDonnell were violated by insufficient evidence to sustain the possession of

drug paraphernalia charge in Incident No. 945874 and by the exclusion of w itness

testimony at his disciplinary hearing concerning Incident No. 945214 are without

merit. However, the Bureau’s refusal to produce and review a videotape which

M r. Howard asserts would refute charges stemming from Incident No. 945214

violated his due process right to present documentary evidence in his own

defense. Accordingly, we A FFIRM the district court’s dismissal of M r. Howard’s

petition for a writ of habeas corpus as to Incident No. 945874 and VACATE its

dismissal of the petition as to Incident No. 945214 and REM AND for

consideration whether the violation of M r. How ard’s procedural due process

rights was nonetheless harmless error.

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