NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 10, 2015*
Decided February 11, 2015
Before
FRANK H. EASTERBROOK, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 14‐2827
LUKE KELLER, Appeal from the United States District
Petitioner‐Appellant, Court for the Southern District of Illinois.
v. No. 14‐cv‐00680‐DRH
JAMES CROSS, David R. Herndon,
Respondent‐Appellee. Judge.
O R D E R
Luke Keller, a federal prisoner, appeals the sua sponte dismissal of his petition for
a writ of habeas corpus. See 28 U.S.C. § 2241. He principally contends that the prison
violated due process in a disciplinary hearing by failing to disclose photos that
supported his defense. Because he asserts that he timely requested the photos and
describes how they exculpate him, we vacate in part and remand to the district court for
further proceedings.
* The defendant was not served with process in the district court and is not
participating in this appeal. After examining the appellant’s brief and the record, we
have concluded that the case is appropriate for summary disposition. See FED. R. APP.
P. 34(a)(2)(C).
No. 14‐2827 Page 2
In September 2011, Keller was charged with fighting another inmate, a violation
of the Bureau of Prison’s disciplinary code. See 28 C.F.R. § 541.3, Table 1, Offense 201. A
prison officer wrote in the incident report that he had “observed Inmate Keller . . .
striking [another inmate] in the head and upper torso with closed fists.” Prisons may
discipline inmates who engage in violence even if the inmate did so to protect himself.
See Jones v. Cross, 637 F.3d 841, 848 (7th Cir. 2011); Scruggs v. Jordan, 485 F.3d 934, 938–39
(7th Cir. 2007).
At his disciplinary hearing, Keller denied fighting. He testified that the other
inmate attacked him and that he threw “no punches.” Another inmate who witnessed
the event testified that Keller was attacked but never fought back. The hearing officer
considered Keller’s testimony that he had not punched the inmate but credited the
account of two staff members who testified that they saw Keller “throwing punches with
closed fists.” The hearing officer noted that Keller did not submit any documentary
evidence. Based on the evidence presented, the officer found Keller guilty and
disciplined him with twenty‐one days of disciplinary segregation, a loss of fourteen days
of good‐time credit, and a withdrawal of ninety days of phone privileges.
In his administrative appeal to the regional director, Keller protested the hearing
officer’s refusal to view the video and photo recordings of the incident and its aftermath.
He argued that at his hearing “the video wasn’t reviewed and no pictures of [the other
inmate] were provided when I requested them.” Keller elaborated that he had asked the
hearing officer to consider photos of him and his attacker. According to Keller, those
photos, which were taken after the fight, corroborate that Keller had not punched the
inmate because they show that Keller’s face was injured but that the other inmate’s face
was not. Without addressing the issue of the requested photos, the director denied the
appeal. He stated only that Keller “did not request any video be reviewed at any stage of
the disciplinary process.” The director concluded that the hearing officer had relied on
sufficient evidence to find Keller guilty. Keller appealed that denial to the central office,
repeating that the video “wasn’t viewed” and “what I have asked for twice now was for
pictures of [the inmate] to be viewed because I didn’t strike him.” The central office
denied his appeal.
After exhausting his administrative appeals, Keller petitioned the district court
under § 2241 for a writ of habeas corpus to restore his good‐conduct credit. He advances
two related contentions: substantial evidence did not support the finding of guilt and the
hearing officer never reviewed the photos and surveillance video. Maintaining that he
No. 14‐2827 Page 3
never struck the inmate, Keller asserts under oath that when the inmate grabbed his shirt
and punched him in the face, Keller only “raise[d] his hands to block and obstruct” the
punches and moved backwards to protect himself. The district court summarily
dismissed Keller’s petition under Rule 4 of the Rules Governing Section 2254, which also
applies to § 2241, see 28 U.S.C. foll. § 2254, 1(b), concluding that the petition was
meritless.
On appeal Keller presses his claim that his right to due process was violated
because the hearing officer did not view the requested photos or surveillance video at his
hearing. Had the officer done so, Keller argues, substantial evidence would not have
supported the hearing officer’s finding of guilt.
If timely requested, material exculpatory evidence must be disclosed in prison
disciplinary proceedings, Piggie v. McBride, 277 F.3d 922, 925 (7th Cir. 2002) (“Piggie I”),
unless the evidence would “unduly threaten institutional concerns,” Jones, 637 F.3d at
847 (citation and quotation marks omitted). Evidence is exculpatory if it undermines or
contradicts the finding of guilt, id. at 848; Scruggs, 485 F.3d at 941, and it is material if
disclosing it creates a “reasonable probability” of a different result, Toliver v.
McCaughtry, 539 F.3d 766, 780–81 (7th Cir. 2008). The disciplinary officer cannot
“arbitrarily refuse to consider exculpatory evidence simply because other evidence in
the record suggests guilt.” Piggie I, 277 F.3d at 922 (citation and quotation marks
omitted). The material must be disclosed “to ensure that the disciplinary board considers
all of the evidence relevant to guilt or innocence and to enable the prisoner to present his
or her best defense.” Piggie v. Cotton, 344 F.3d 674, 678 (7th Cir. 2003) (“Piggie II”). But
inmates must request the evidence before or at the hearing, since due process does not
require hearing officers to consider evidence that could have been but was not presented
at the hearing. See Piggie I, 277 F.3d at 925; McPherson v. McBride, 188 F.3d 784, 786 (7th
Cir. 1999).
Keller’s petition suffices to require a response from the Bureau. He asserts that at
the hearing he asked the hearing officer to review the photos that reveal his assailant’s
unscathed face, but his request was ignored. If this assertion is true, then Keller’s request
was timely. And if, as Keller maintains, the photos show that his attacker’s face was
unscathed, they are material. They could have undermined the accusing officers’
testimony that Keller punched the inmate in the face with a closed fist and supported
Keller’s defense that he never struck the inmate. Therefore the district court must hear
from the Bureau and determine if these factual premises are correct and necessitate a
new prison hearing.
No. 14‐2827 Page 4
In dismissing Keller’s petition, the district court mistakenly thought that Keller
was arguing that he hit the other inmate in self‐defense. If that were his argument, the
photos would have been irrelevant. See Jones, 637 F.3d at 848; Scruggs, 484 F.3d at 940.
But we think that Keller’s defense is best read as denying fighting altogether, because he
has consistently maintained both in his administrative appeals and in court that “I didn’t
strike him.”
The surveillance video is another matter. Keller does not dispute the director’s
statement that he “did not request any video be reviewed at any stage of the disciplinary
process.” And in contrast to the photos, which Keller repeatedly insists that he requested
at the hearing, Keller complains only that the video “should automatically be provided.”
But without having requested the video (or proffering a valid excuse for not seeking it),
Keller “cannot now demand a new hearing based upon evidence that was available to
him at that prior hearing.” McPherson, 188 F.3d at 786.
Keller raises two other procedural challenges but neither has merit. First, Keller
argues that several delays violated prison regulations and deprived him of due process.
But the procedures contained in the prison regulations do not give rise to a liberty
interest. See Jones, 637 F.3d at 846. Second, Keller argues that his hearing officer was
biased and deprived him of a fair hearing because he conspired with an accusing officer
by rescheduling the hearing and crediting that officer’s testimony. But rescheduling a
hearing and crediting one version of the facts over another does not constitute
impermissible bias. See White v. Indiana Parole Bd., 266 F.3d 759, 767–68 (7th Cir. 2001).
Keller raises a final argument—that prison officials were deliberately indifferent
to his safety—but it is improper. He contends that they should have stopped the fight
more quickly or prevented it altogether because they knew that other inmates had
organized an attack on Keller after he became a confidential informant. But because this
claim challenges the conditions of his confinement, not its fact or duration, Keller cannot
use this petition to advance it. See Robinson v. Sherrod, 631 F.3d 839, 840–42 (7th Cir. 2011);
Glaus v. Anderson, 408 F.3d 382, 386–87 (7th Cir. 2005).
We VACATE the district court’s judgment insofar as it dismisses Keller’s claim
that the withholding of potentially exculpatory photos violated his right to due process,
and AFFIRM the rest of the district court’s judgment. This case is REMANDED for
further proceedings consistent with this order.