                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 05-16996                   JUNE 26, 2006
                         Non-Argument Calendar            THOMAS K. KAHN
                                                              CLERK
                       ________________________

                   D. C. Docket No. 04-21404-CV-ASG

ANTHONY TEDESCO,

                                                       Petitioner-Appellant,

                                  versus

SECRETARY FOR THE DEPARTMENT
OF CORRECTIONS, James Crosby,
ATTORNEY GENERAL OF FLORIDA,
Charles J. Crist, Jr.,


                                                      Respondents-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                              (June 26, 2006)

Before CARNES, PRYOR and FAY, Circuit Judges.

PER CURIAM:
      Anthony Tedesco, a Florida state prisoner, appeals pro se the denial of his

federal habeas petition, 28 U.S.C. § 2254 and § 2241, arguing that the prison

violated his due process rights by relying on a “Voice Stress Analysis polygraph

test” (herein “VSA”) during a disciplinary proceeding. Tedesco filed his petition

after the effective date of the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA), Pub. L. No. 104-32, 110 Stat. 1214 (1996); therefore the

provisions of that act govern his appeal. For the reasons set forth more fully

below, we affirm.

      Tedesco filed a pro se § 2254 petition challenging a prison disciplinary

proceeding where, based on a VSA, he was adjudged guilty of “lying to staff” in

violation of prison regulations, resulting in a loss of 180 days of gain time and 60

days of disciplinary housing. Tedesco’s petition alleged that the VSA was the

state’s only evidence, and the scientific community had not accepted the VSA as

reliable, and further alleged that his due process rights were violated because

prison officials denied his request to have the VSA test results produced for his

examination at the disciplinary hearing.

      The state responded, in pertinent part, that Tedesco had received the minimal

due process to which he was entitled because he was given notice of the charges

against him at least 24 hours before his disciplinary hearing and received a report



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that contained a detailed statement of the reasons for the disciplinary action. The

state further argued that Tedesco had agreed to take the VSA and also agreed that,

if he failed, he would receive a disciplinary report. Moreover, the state argued that

Tedesco was not entitled to a copy of the test results and did not challenge the

outcome of the test. Finally, the state argued that Tedesco was permitted to present

witnesses at his hearing, and enough evidence was presented to support the

disciplinary action taken.

      In support, the state attached several exhibits, the first of which was a

disciplinary report indicating that Tedesco was found guilty of lying to staff after a

hearing in which he declined staff assistance. The report stated that Tedesco had

filed numerous complaints and allegations about prison staff and was interviewed,

at which point Tedesco submitted a two-page affidavit detailing his allegations.

The disciplinary board’s decision heavily relied on the interviewing officer’s

report. According to the report, Tedesco agreed to take a “truth verification test” to

confirm his allegations, and, furthermore, agreed that if he failed the test, he would

be subject to a disciplinary report. The test revealed that Tedesco “showed

deception to relevant question[s]” and failed. Tedesco asked if he could present

the testimony of other witnesses, but “the team” conducting the hearing did not

“feel the statements would change the decision of the team finding.” As



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punishment, the “team” sentenced Tedesco to 60 days of disciplinary confinement

and removed 180 days of gain time.

      Also included was a report conducted by Officer Stuart J. Harrison, who

interviewed Tedesco regarding Tedesco’s complaints and allegations against

prison staff. Harrison wrote that Tedesco submitted a two-page affidavit, agreed to

take a truth verification test to confirm his allegations, further agreed that, if he

failed the test, he would be subject to disciplinary action, and subsequently failed

the truth verification test. Tedesco was notified of the charges and informed that

an investigation would be conducted. Tedesco was further informed that he could

request staff assistance and should make known any witnesses whose statements

would be presented. Tedesco’s two-page affidavit alleging mistreatment by prison

staff was also submitted.

      Next, Tedesco filed a “witness statement” opposing the charge of lying to

staff and challenging the validity of the VSA test, which he described as “junk

science.” He argued that the test was not accepted as reliable in the general

scientific community or the courts. Furthermore, he “formally” requested that the

test results be presented at the hearing and that he be given an opportunity to

review the test and to obtain an independent VSA at his own expense because he

believed the test conducted by prison staff was biased. Finally, he stated that he



                                            4
took the VSA under duress because he had received death threats.

      The state also included a “disciplinary report worksheet,” signed by Officer

Harrison, confirming that Tedesco had agreed to take the VSA test and, if he failed

the test, would face disciplinary action. Tedesco “showed deception to relevant

questions,” and, therefore, failed the examination. A second document indicated

that the results of the VSA would be made available to the disciplinary committee,

but the results were not available to inmates. As witnesses, Tedesco requested

only that Officer Harrison and Inspector Keen, the operator of the VSA, be present

at the hearing.

      Tedesco, in response, filed a “Motion to Demonstrate Response Is

Unacceptable,” arguing that the state’s refusal to provide him with the results of

the VSA violated his due process rights. He further argued that his First

Amendment “right to be heard” was violated and that his disciplinary conviction

was based on inadmissible hearsay. Finally, he argued that the VSA was

unreliable and had not gained acceptance in any court, making his disciplinary

proceedings contrary to federal law. Tedesco submitted a number of exhibits,

many of which are duplicates of the state’s evidence or irrelevant to his present

appeal. Important to this appeal, however, Tedesco filed a petition for mandamus

in Florida state court challenging the disciplinary proceeding, which was denied



                                          5
because the court found that Tedesco had received the minimal due process rights

to which he was entitled. The ruling was affirmed on appeal.

      A magistrate judge recommended that Tedesco’s petition, which the

magistrate found was “in legal effect . . . brought pursuant to 28 U.S.C. § 2254, as

well as 28 U.S.C. § 2241,” be denied. The magistrate judge found that Tedesco’s

due process rights were not violated because he received notice of the charge, was

given the right to contest the charge, and was provided an opportunity to call

witnesses and submit evidence. He further found that Tedesco had no right to have

the VSA test results given to him prior to the hearing. Finally, he found that the

fact-finders’ conclusions that Tedesco was guilty of lying to staff were not

arbitrary or capricious and that the decision was supported by sufficient evidence.

Specifically, he found that the failure to provide Tedesco with the test results did

not result in prejudice and that the disciplinary team relied on additional evidence,

including Harrison’s written statements.

      Tedesco filed objections to the magistrate’s report, arguing that the failure to

produce the VSA test results violated his due process rights.. Next, he argued that

he had met the standards for granting habeas relief because federal law clearly

established a right to present documentary evidence in defense of a disciplinary

charge. Finally, he argued that relief should be granted to him because he was



                                           6
prejudiced by the due process violation, and the only evidence of his guilt was the

VSA test results that were not produced.

      After conducting a de novo review of the report and Tedesco’s objections,

the district court concluded that Tedesco’s disciplinary hearing satisfied the due

process requirements. It found that “some evidence” supported the decision to

revoke Tedesco’s gain time credits and that the disciplinary board did not rely

solely on the VSA test, but also on other evidence that supported a finding of guilt.

Thus, the court found that, even if Tedesco had been entitled to a copy of the test

results, his guilt was still supported. Accordingly, the court found that the

disciplinary hearing comported with due process and Tedesco’s habeas petition

was dismissed. The district court, however, granted a COA “with respect to

[Tedesco’s] argument that [his] due process rights were violated as a result of a

disciplinary proceeding and whether he was wrongfully deprived of 180 days of

gain time.”

      On appeal, Tedesco argues that the only evidence of his guilt was the failed

VSA, which he argues is unreliable, and, therefore, his disciplinary conviction

should not be upheld because there was no reliable evidence of his guilt. He

further argues that the disciplinary board’s withholding of the results of the VSA

deprived him of the opportunity to challenge the inculpatory evidence in violation



                                           7
of his due process rights.

        We review “[de novo] issues of law presented in a certificate of

appealability.” Medberry v. Crosby, 351 F.3d 1049, 1053 (11th Cir. 2003). In

Medberry, we held that a state prisoner may file a habeas corpus petition to

challenge the loss of gain time as a result of state prison disciplinary proceeding

that allegedly violates his due process rights under 28 U.S.C. § 2241, although

such a petition is governed by the restrictions set forth at 28 U.S.C. § 2254. Id. at

1054.

        Under 28 U.S.C. § 2254(d), a federal court may not grant habeas relief on

claims that were previously adjudicated in state court unless the adjudication

“resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States,” or “resulted in a decision that was based on an

unreasonable interpretation of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d).

        The United States Supreme Court has held that “[a] state-court decision is

contrary to this Court’s clearly established precedents if it applies a rule that

contradicts the governing law set forth in our cases, or if it confronts a set of facts

that is materially indistinguishable from a decision of this Court but reaches a



                                            8
different result.” Brown v. Payton, 544 U.S. 133, 141, 125 S.Ct. 1432, 1438, 161

L.Ed.2d 334 (2005). “A state-court decision involves an unreasonable application

of this Court’s clearly established precedents if the state court applies this Court’s

precedents to the facts in an objectively unreasonable manner.” Id., 125 S.Ct. at

1439. An objectively unreasonable application of precedent occurs when (1) a

state court identifies the correct legal rule but unreasonably applies it to the facts or

(2) a state court either unreasonably extends a legal principle from precedent to a

new context where it should not apply or unreasonably refuses to extend that

principle to a new context where it should apply. See Diaz v. Sec’y for the Dep’t

of Corrs., 402 F.3d 1136, 1141 (11th Cir.), cert. denied 126 S.Ct. 803 (2005).

      In the present case, Tedesco exhausted his state remedies by filing a petition

for mandamus in Florida state court. The state court, citing the Supreme Court’s

decisions in Wolff and Hill (discussed below), denied the mandamus petition after

finding that Tedesco had failed to state sufficient allegations that his due process

rights were violated in any way. His petition for certiorari was subsequently

denied by the First District Court of Appeals.

      In light of the foregoing, we conclude that, because § 2254(d) is clearly a

restriction on habeas petitions of prisoners in custody pursuant to a state judgment,

and here, because the merits of Tedesco’s claim were adjudicated in state court,



                                            9
Medberry requires that we review only to determine whether the state court’s

application of clearly established federal law was unreasonable.1 Medberry, 351

F.3d at 1054 n.5.

       We further conclude that the state court’s disposition of Tedesco’s

mandamus petition was neither objectively unreasonable nor contrary to clearly

established federal law. In Wolff v. McDonnell, the Supreme Court held that a

prisoner is entitled to the “minimum procedures appropriate under the

circumstances and required by the Due Process Clause” to ensure that a state-

created right to, for example, gain-time or good-time credits, is not arbitrarily

abrogated. 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974). The

Court held that the minimum procedures include: (1) at least 24 hours notice of the

charges so that the inmate can prepare for the hearing; (2) a written statement by

the factfinders detailing what evidence was relied upon and why disciplinary action

was taken; and (3) the opportunity for the inmate to present witnesses and

documentary evidence, although the prison maintains the discretion to reject

witnesses. Id. at 563-67, 94 S.Ct. at 2978-80. The rights of confrontation and

cross-examination, while applicable to criminal prosecutions, do not apply to



       1
         To this end, the district court erred by essentially reviewing the merits of Tedesco’s
claim de novo. This error had no effect whatsoever because the district court’s determination
that Tedesco’s claims lacked merit was the same as the state court judgment.

                                                10
prison disciplinary proceedings. Id. at 567-68, 94 S.Ct. at 2980.

      The Supreme Court later clarified that “ the requirements of due process are

satisfied if some evidence supports the decision by the prison disciplinary board to

revoke good time credits. This standard is met if ‘there was some evidence from

which the conclusion of the administrative tribunal could be deduced. . . .’”

Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455, 105 S.Ct.

2768, 2774, 86 L.Ed.2d 356 (1985). “Ascertaining whether this 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, 105 S.Ct. at 2774.

“The fundamental fairness guaranteed by the Due Process Clause does not require

courts to set aside decisions of prison administrators that have some basis in fact.”

Id. at 456, 105 S.Ct. at 2774. In Hill, the Supreme Court upheld the determination

of a disciplinary board even though the evidence “might be characterized as

meager” because the record was not so devoid of evidence as to render the board’s

decision arbitrary. Id. at 457, 105 S.Ct. at 2775.

      Here, Tedesco agreed to take a VSA and further agreed that, if he failed, he

would be subject to a disciplinary report. When he failed the test, Tedesco, as



                                          11
contemplated, was subject to a disciplinary report charging him with lying to staff.

Both the officer who interviewed Tedesco regarding his allegations and complaints

and the officer who conducted the VSA were listed as witnesses at Tedesco’s

hearing. There is also no dispute that Tedesco was given advance notice of the

charge and the hearing as well as the opportunity to present evidence and witnesses

in his own defense. While statements regarding the VSA may have constituted

inadmissible hearsay evidence if offered at a criminal trial, Tedesco’s disciplinary

hearing was not a criminal trial, and, therefore, as the Supreme Court held, he was

not entitled to the full panoply of rights afforded to criminal defendants at trials,

including the right of confrontation or the Federal Rules of Evidence. See Wolff,

418 U.S. at 567-68, 94 S.Ct. at 2980. In light of the evidence of the failed VSA

and statements of the interviewing officer, “some evidence” supported the prison’s

determination that Tedesco lied to staff and his due process rights were not

violated.

      Moreover, the crux of Tedesco’s argument is that polygraph test results are

inadmissible because they are unreliable, and, because due process requires, at a

minimum, that the prison base its finding on reliable evidence, the prison violated

his due process rights by relying solely on the VSA. Tedesco cites to Kyle v.

Hanberry, 677 F.2d 1386, 1389-90 (11th Cir. 1982), where we held that, while



                                           12
prisoners are not entitled to the full panoply of rights received in a criminal trial

during a disciplinary hearing, they are entitled to have the prison undertake a bona

fide examination of an informant’s hearsay statements before imposing a severe

sanction. Tedesco’s reliance on Kyle is mistaken. Notwithstanding the different

factual circumstances presented in this case, we previously have called into doubt

the holding of Kyle in light of the Supreme Court’s holding in Hill, supra, which

held that an independent weighing of the evidence is not required—the prison’s

decision is upheld if there is “some evidence” supporting the decision. See Young

v. Jones, 37 F.3d 1457, 1459 (11th Cir. 1994). Because “some evidence”

supported the prison’s decision and Tedesco’s due process rights as set forth in

Wolff were not otherwise violated, the prison’s decision must be upheld. Id. at

1459-60.

      Lastly, to the extent Tedesco argues that prison officials were required to

provide him with a copy of the test results prior to his hearing, nothing in Wolff or

its progeny constitutionally required providing Tedesco with the results. As the

Supreme Court made clear in Wolff, an inmate’s right to present witnesses and

documentary evidence is not guaranteed in every circumstance, and at a minimum,

Tedesco was provided with notice of the charges and had the opportunity to

question the Officer who interviewed him and the Officer who conducted the VSA,



                                           13
both of whom were listed on Tedesco’s witness list. Wolff, 418 U.S. at 563-67, 94

S.Ct. at 2978-80.

      Based on the foregoing, we conclude that the state court’s denial of

Tedesco’s mandamus petition and determination that Tedesco’s due process rights

were not violated was not an unreasonable application of federal law under

§ 2254(d). We, therefore, affirm.

      AFFIRMED.




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