                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                     July 28, 2011
                   UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                               TENTH CIRCUIT                         Clerk of Court



 CLINTON HOWARD,

             Petitioner - Appellant,
                                                        No. 11-3019
 v.                                           (D.C. No. 5:04-CV-03115-RDR)
                                                        (D. Kansas)
 UNITED STATES BUREAU OF
 PRISONS,

             Respondent - Appellee.


                          ORDER AND JUDGMENT *


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Clinton Howard, a federal inmate appearing pro se, appeals the district

court’s decision, on remand from a prior appeal, denying his application for a writ

of habeas corpus under 28 U.S.C. § 2241. Because the district court’s factfinding

on remand was not clearly erroneous, we affirm the denial.




      *
       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not binding precedent except under the doctrines of law of the case, res judicata,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.
       Mr. Howard’s § 2241 application challenged prison disciplinary

proceedings regarding two incidents. The district court originally denied the

application. On appeal we affirmed with respect to one disciplinary proceeding;

but we held that at the other proceeding he had been denied due process by the

refusal of the Bureau of Prisons to produce and review a videotape allegedly

showing portions of the prisoner altercation that formed the basis of the

disciplinary charge. See Howard v. U.S. Bureau of Prisons, 487 F.3d 808,

810–11 (10th Cir. 2007). We remanded for the district court to determine

whether the error was nonetheless harmless. See id. at 815.

       On remand the district court ruled that any violation of Mr. Howard’s due-

process rights was harmless. The court said: “1) . . . the security cameras at the

[prison] did not record pertinent footage of the incident; and 2) any recording

made by the cameras at the [prison] was recorded over and destroyed before

[Mr. Howard] requested that the tapes be produced and examined.” R., Vol. 1 at

278.

       Mr. Howard challenges the district court’s harmless-error determination.

He also raises other challenges to the disciplinary hearing—some of which were

not raised in his initial appeal—but our review is limited to the issue on which we

ordered a remand. See Texaco, Inc. v. Hale, 81 F.3d 934, 937 (10th Cir. 1996)

(only issue before appellate court is what was in remand order). We review de

novo the court’s dismissal but we review its factual findings for clear error. See

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United States v. Miller, 594 F.3d 1240, 1242 (10th Cir. 2010) (standard of review

in § 2241 appeal).

      In support of its harmless-error ruling the district court found that the

security cameras did not record any relevant footage of the incident. It relied on

the declaration of a special investigative services telephone monitor, whose job

was to review institutional video cameras for inmate-misconduct investigations.

The telephone monitor’s sworn declaration stated:

      As part of my normal investigatory practice, I would review all video
      camera footage located in the areas where a[n] incident involving
      inmate misconduct occurred. If there is a video recording of the
      incident, or a portion of the incident, I would maintain a copy of such
      video in the investigatory file. . . . My investigation of [Mr.
      Howard’s] incident would have involved such a review of the video
      camera footage at [the prison] on December 9, 2001. As there is no
      preserved videotape, and no written indication in the files of the
      existence of any videotapes, there is no videotape footage that
      captured the incident involving [Mr. Howard] in December 2001.

R., Vol. 1 at 211. Given this evidence, the court’s factual finding was not clearly

erroneous. And given that finding, we must affirm the court’s ruling that the due-

process violation was harmless.

      We AFFIRM the decision of the district court.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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