Crosby v. Fox

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 10, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
GREGORY D. CROSBY, a/k/a
Gregory D. Cosby,

Petitioner - Appellant, No. 18-1334
(D.C. No. 1:17-CV-02308-RM-STV)
v. (D. Colorado)

JACK FOX, Warden; DHO OFFICER
ANGELO JORDAN,

Respondents - Appellees.
_________________________________

ORDER AND JUDGMENT*
_________________________________

Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
_________________________________

Gregory D. Crosby, a federal prisoner appearing pro se,1 appeals the denial of

his petition for writ of habeas corpus under 28 U.S.C. § 2241. Exercising jurisdiction

under 28 U.S.C. §§ 1291 and 2253, we affirm the decision of the district court.

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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
Federal Rule of Appellate Procedure 32.1 and 10th Circuit Rule 32.1.
1
Because Mr. Crosby appears pro se “we liberally construe his filings, but we
will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
 I. BACKGROUND

Mr. Crosby is currently in the custody of the Federal Bureau of Prisons in

Florence, Colorado. Mr. Crosby filed a petition for a writ of habeas corpus, alleging due

process violations during two disciplinary hearings. The hearings occurred after an

incident involving Mr. Crosby while he was imprisoned at the United States Penitentiary

in Lewisburg, Pennsylvania. A correctional officer reported seeing Mr. Crosby and his

cellmate engaged in a fight, “striking each other with closed fists punches to the head and

upper torso area.” ROA at 65.

The officer reported giving the men direct orders to stop fighting, but they ignored

the orders. At that point, the officer radioed for assistance. Responding to the call,

another officer ordered them to stop fighting, but when they ignored the orders he began

administering two-second bursts from his MK-9 OC (chemical munitions) dispenser

through the food slot in the door. The officer gave another verbal order for the inmates to

stop fighting and submit to hand restraints, but they again refused, and he administered

another two-second burst. The officer reported Mr. Crosby ran to the door and attempted

to grab his arm while he was administering a third and final chemical burst. However, the

officer was able to remove his arm and close the food slot in the door before Mr. Crosby

could make contact.

The officers involved filled out incident reports outlining the charges for

Mr. Crosby’s involvement in the fight with his cellmate as well as his attempted assault

on one of the officers. Prison staff delivered the reports to Mr. Crosby the same day. The

Unit Discipline Committee referred both charges to a Discipline Hearing Officer

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(“DHO”) for a disciplinary hearing. The DHO advised Mr. Crosby of his rights during a

hearing; however, Mr. Crosby refused to sign the form acknowledging the advisement.

At that time, Mr. Crosby also indicated he did not wish to have staff representation or call

any witnesses. During the hearing, the DHO considered the following pieces of evidence:

written statements of the officers and other staff members who observed the incident,

video evidence requested by Mr. Crosby that did not show the inside of his cell,

Mr. Crosby’s written statement and denial that any fight occurred, and the admission of

Mr. Crosby’s cellmate that they were fighting. The DHO found the greater weight of the

evidence supported the charge that Mr. Crosby violated the code by participating in a

fight and attempting to assault an officer. As a sanction, Mr. Crosby lost twenty-seven

days of his earned good time credits for each violation. Mr. Crosby appealed the DHO’s

decisions, but the decisions were affirmed.

Mr. Crosby then filed an application for a writ of habeas corpus, pursuant to 28

U.S.C. § 2241, alleging the prison guards violated his due process rights by not reviewing

the video evidence he requested or allowing him to personally review the video evidence,

insufficiency of the evidence to find him guilty, and the DHO was biased and prejudiced.

The district court denied the application for writ of habeas corpus, finding Mr. Crosby did

not demonstrate the DHO violated his due process rights. The district court also

concluded there was sufficient evidence to find Mr. Crosby guilty of violating the prison

code and the hearing officer was not biased. Mr. Crosby timely filed this appeal after the

district court denied his petition for writ of habeas corpus.

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 Mr. Crosby asserts the district court erred in denying habeas relief because he was

not afforded due process. He appears to assert three claims in support of this assertion:

insufficiency of the evidence, a lack of opportunity to present and personally review

video evidence, and a possible Brady violation.

II. DISCUSSION

We review the district court’s denial of a habeas corpus petition de novo. See

Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012). Prison disciplinary

hearings are “not part of a criminal prosecution, and the full panoply of rights due a

defendant in such proceedings does not apply.” Howard v. U.S. Bureau of Prisons, 487

F.3d 808, 812 (10th Cir. 2007) (quoting Wolff v. McDonnell, 418 U.S. 539, 556 (1974)).

“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 . . . .” Id.

at 811 (quotation marks omitted). To satisfy the due process requirements in a hearing

involving the loss of good time credit, an 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, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985) (citing

Wolff, 418 U.S. at 563–67). “An impartial decisionmaker is a fundamental requirement of

due process that is ‘fully applicable’ in the prison context.” Gwinn v. Awmiller, 354 F.3d

1211, 1220 (10th Cir. 2004) (quoting Wolff, 418 U.S. at 592 (Marshall, J., concurring in

part and dissenting in part)). Additionally, any “revocation of good time does not

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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 (quoting Wolff, 418 U.S. at 558).

We review the record de novo to ensure the prison staff did not violate

Mr. Crosby’s due process rights as he alleges. Liberally construing Mr. Crosby’s

appellate brief, he makes three challenges to the disciplinary decision: there was not

sufficient evidence to sustain the decision, he was not given the opportunity to present

documentary evidence, and the government failed to disclose exculpatory video evidence.

A. Sufficiency of the Evidence

To ensure inmates receive their due process rights, the findings of the disciplinary

hearing must be “supported by some evidence in the record.” Hill, 472 U.S. at 454. The

“some evidence” standard “does not require examination of the entire record,

independent assessment of the credibility of witnesses, or weighing of the evidence.” Id.

at 455. The question we ask is “whether there is any evidence in the record that could

support the conclusion reached by the disciplinary board.” Id. at 455–56. We have

previously held a disciplinary decision “can be upheld even if the evidence supporting the

decision is ‘meager.’” Mitchell v. Maynard, 80 F.3d 1433, 1445 (10th Cir. 1996) (quoting

Hill, 472 U.S. at 457).

The DHO relied upon statements made by the correctional officers, the incident

reports, surveillance video and still photographs, a statement made by Mr. Crosby’s

cellmate that they were fighting, and Mr. Crosby’s written and oral statements that there

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was never a fight and the guards were all lying. We find the DHO’s decision is supported

by some evidence in the record and satisfies Mr. Crosby’s due process rights.

B. Opportunity to Call Witnesses and Present Evidence

The record shows the DHO advised Mr. Crosby of his rights during the

disciplinary process, including the right to provide evidence and call witnesses on his

behalf. Mr. Crosby requested that the DHO review the video evidence but declined to call

any witnesses. He also refused to sign the paperwork indicating staff informed him of

those rights. At the second hearing, the DHO once more advised Mr. Crosby of his due

process rights. Again, Mr. Crosby refused to call witnesses but requested the DHO

review the video evidence. Based on the record, we find the staff made Mr. Crosby aware

of his rights and gave him the opportunity to call witnesses and present evidence; he

presented evidence by requesting the “video surveillance be review[ed]” and chose not to

call witnesses. See ROA at 49, 51, 122.

Mr. Crosby also alleges a due process violation because the surveillance video was

not used in the hearing and he was unable to review it. However, the record indicates the

DHO relied on the video evidence in making his decision. There is nothing to support

Mr. Crosby’s claim that the DHO ignored the surveillance video. In support of his

contention that his inability to personally review the video constitutes a due process

violation, Mr. Crosby relies on our decision in Howard, 487 F.3d 808.

In Howard, an inmate in a similar position as Mr. Crosby “requested that the DHO

review videotape records” that he “expected would bolster his argument.” Id. at 813. But

the DHO declined to do so. We found the “DHO’s unjustified refusal to produce and

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review [the video] deprived Mr. Howard of the process due him.” Id. at 814.

Mr. Crosby’s case is distinguishable from Howard. In Howard, the DHO refused to

review the video the inmate requested, but here, the DHO reviewed the surveillance

video in making his decision and found it corroborated the reporting officers’ statements.

Mr. Crosby’s due process rights were not violated as in Howard because the DHO

reviewed the video as requested.

But Mr. Crosby argues the failure to allow him to personally review the video

violated his right to due process. Nothing in the Howard decision created a due process

right of an inmate to personally review videotape evidence used in a disciplinary hearing.

However, we have previously noted “several courts[, applying Wolff,] have held that the

denial of access to a videotape or audiotape used by prison officials to establish the

commission of an offense may infringe a[n] inmate’s right ‘to marshal facts in his

defense and present witnesses and documentary evidence at the hearing.’” Cannistraci v.

Van Der Veur, 1997 WL 31549, at *1, 106 F.3d 413 (Table) (10th Cir. 1997)

(unpublished) (quoting Gibbons v. Higgins, 1995 WL 761743, at *2, 73 F.3d 364 (Table)

(7th Cir. 1995) (unpublished)). And we have also determined that when an inmate asks

for video evidence before the disciplinary hearing, the inmate’s “interest in obtaining the

videotapes (to demonstrate . . . [innocence])” under Wolff may be limited when

“institutional concerns . . . dictate reliance on a summary of videotape evidence in lieu of

providing a prisoner with access to the tape itself.” Bogue v. Vaughn, 439 F. App’x 700,

705 (10th Cir. 2011). No such institutional concerns have been voiced here. But it is also

unclear from the record whether Mr. Crosby ever requested to view the video himself

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instead of only requesting to have the DHO review the video. Compare ROA at 87, 120

(listing the video surveillance as requested evidence for the proceedings), and id. at 122

(“Furthermore, [inmate] is requesting the video surveillance be review[ed] on this

matter.”), with id. at 124 (Mr. Crosby alleging that the DHO rejected his attempts to

“reveal” the video and the DHO instead stated “We will save the video for lawsuit action

[sic]”), and id. at 126 (Mr. Crosby arguing he “specifically request[ed] to view [the]

video footage prior to [the] disciplinary hearing”).

Even if we agreed Mr. Crosby requested to personally review the video and the

DHO’s denial of that request constituted a procedural due process violation, it would

have been harmless error. See Howard, 487 F.3d at 814–15. The DHO based his decision

on the video in addition to other evidence. Mr. Crosby’s ability to review the tape would

not have impacted the DHO’s decision.

C. Possible Brady Violation

As a related argument, a liberal construction of Mr. Crosby’s habeas petition and

appellate brief reveals a potential Brady v. Maryland, 373 U.S. 83 (1963), claim.

Mr. Crosby argues the DHO violated Brady by failing to turn over the allegedly

exculpatory video. Although at least one other circuit has held that Brady is applicable to

prison disciplinary hearings, see Piggie v. Cotton, 344 F.3d 674, 678 (7th Cir. 2003)

(“[T]he rule of [Brady], requiring the disclosure of material exculpatory evidence, applies

to prison disciplinary proceedings”), this court has yet to do so and “we need not decide

that issue today to affirm the district court’s denial of habeas corpus relief,” Godlock v.

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Fatkin, 84 F. App’x 24, 28–29 (10th Cir. 2003). We proceed assuming, without deciding,

that Brady applies.

“To establish a Brady violation, ‘[1] the evidence at issue must be favorable to the

accused, either because it is exculpatory, or because it is impeaching; [2] that evidence

must have been suppressed by the State, either willfully or inadvertently; and [3]

prejudice must have ensued.’” United States v. Durham, 902 F.3d 1180, 1221 (10th Cir.

2018) (quoting Strickler v. Greene, 527 U.S. 263, 281–82 (1999)). “The defense needs to

establish these elements by a preponderance of the evidence.” Id. Under the third

element, “evidence is material and its nondisclosure prejudicial ‘only if there is a

reasonable probability that, had the evidence been disclosed to the defense, the result of

the proceeding would have been different.’” Id. (quoting United States v. Bagley, 473

U.S. 667, 682 (1985)).

Even assuming Mr. Crosby has established the second element, his claim fails on

the first and third elements. “The mere possibility that evidence is exculpatory does not

satisfy the constitutional materiality standard.” United States v. Fleming, 19 F.3d 1325,

1331 (10th Cir. 1994). Mr. Crosby’s sole argument that the evidence is exculpatory is

that “it show[s] no action inside the cell.” Appellant’s Br. at 11. And his only argument

regarding materiality is that the video “was critical to this matter.” Id. In his

administrative appeal, Mr. Crosby argued the video was exculpatory in that “nothing in

the video show[s] that [Mr. Crosby attempted to grab the officer’s hand] because no

camera is direct[ed] toward the cell.” ROA at 22. The video evidence is not exculpatory

nor material because it does not show the inside of Mr. Crosby’s cell and thus could not

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show that he did not attempt to assault the officer or that he was not fighting with another

inmate. The fact that the video does not depict any action inside Mr. Crosby’s cell

because the camera is at the end of the hallway, pointed down the hall and not into his

cell, “is neither exculpatory nor critical evidence—it is simply inconclusive.” Holden v.

Addison, 606 F. App’x 469, 470 (10th Cir. 2015).

Any argument regarding the exculpatory or material nature of the video is further

undercut because the DHO watched the video and determined it “completely

corroborates” the written statements of the various officers involved in the incident that

Mr. Crosby committed the violations. ROA at 63, 95. In particular, the video verified the

positioning of the officers outside of Mr. Crosby’s cell and confirmed their ability to

witness the inmates fighting and the encounter between the reporting officer and

Mr. Crosby. It further showed the reporting officer rearing backward as Mr. Crosby

attempted to grab his arm. In sum, the DHO found “the video evidence matches every

staff member’s account of their actions throughout the incident,” even though it “does not

annotate [Mr. Crosby’s] actions inside [his] cell.” Id. at 95.

Furthermore, Mr. Crosby’s allegations do not justify an in camera review of the

video or an evidentiary hearing on the matter. See United States v. Williams, 576 F.3d

1149, 1163 (10th Cir. 2009) (requiring a plausible showing that the evidence is material

before in camera review is justified); United States v. Garcia-Martinez, 730 F. App’x

665, 674 (10th Cir. 2018) (“To justify a court undertaking an in camera review for Brady

material, at the very least, a defendant must make a ‘plausible showing’ that the

government files at issue contain ‘material’ exculpatory or impeachment information.”

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(quoting Williams, 576 F.3d at 1163)). Mr. Crosby has not carried his burden under

Brady, and the failure of the DHO to produce the video evidence so Mr. Crosby could

personally view it therefore, did not violate his right to procedural due process.

***

We do not find merit in Mr. Crosby’s arguments and reject his claim that the DHO

violated his due process rights.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.

Additionally, we GRANT Mr. Crosby’s Motion to Proceed in forma pauperis.

Entered for the Court

Carolyn B. McHugh
Circuit Judge

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