In the
United States Court of Appeals
For the Seventh Circuit

No. 01-2611

Clyde Piggie,

Petitioner-Appellant,

v.

Daniel McBride, Superintendent,

Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 99 C 561--Allen Sharp, Judge.

Submitted December 18, 2001--Decided January 17, 2002



  Before Posner, Manion, and Rovner, Circuit
Judges.

  Per Curiam. Clyde Piggie, an Indiana
state prisoner, filed a petition for writ
of habeas corpus under sec. 2254, arguing
that he was denied due process of law in
a prison disciplinary hearing. The
district court denied Piggie’s petition.
We vacate the district court’s judgment
and remand this case to the district
court for further proceedings.

Background

  On May 7, 1999, correctional officer
LaDonna Ellis wrote a conduct report
charging Piggie with sexual assault for
squeezing her buttocks when he was
passing her in a prison hallway. On May
10, 1999, Piggie was given written notice
of a hearing before the prison’s Conduct
Adjustment Board (or "CAB"), as reflected
in a screening report prepared by Officer
Jason Nowatzke. The screening report also
noted that Piggie requested a lay
advocate to represent him and that he be
permitted to call Officer Ellis as a
witness at the hearing. Piggie contends
that he also told Officer Nowatzke during
the screening interview that he wished to
have the CAB view the videotape from the
prison’s surveillance camera that may
have recorded the incident. But, he says,
Nowatzke responded that the tape could
not be viewed without a court order. The
screening report did not reflect Piggie’s
request for the tape.

  Piggie pleaded not guilty and attended
the disciplinary hearing on May 12, 1999.
At the hearing Piggie denied squeezing
Officer Ellis’s buttocks but stated that
he may have accidentally touched her when
he passed by her in the hallway. Ellis
did not testify but instead submitted a
statement in which she asserted that her
conduct report "stands as written."
According to Piggie, at the hearing he
again requested that the CAB view the
surveillance tape, and he handed a
written statement repeating that request
to the CAB chairman. But, Piggie
contends, the chairman told him there was
no tape. The report of the hearing does
not mention Piggie’s request or state any
reasons why the CAB did not view the
tape. According to the state, the
prison’s policy was to reuse the
surveillance tapes soon after they were
recorded, and the tape no longer exists.

  Based on Officer Ellis’s report, the CAB
found Piggie guilty of sexual assault.
The CAB sentenced him to two years in
disciplinary segregation and demoted him
from good-time credit class II to credit
class III. Piggie first appealed the
CAB’s decision to the prison
superintendent, raising a number of
issues including the CAB’s failure to
review the surveillance tape. In that
regard he stated, "[i]f someone would
please review the videotape of that date
and time, it will show with no doubt the
[sic] he is not guilty . . . . In a case
like this one . . . it should be ’Manda
tory’ to review the video camera!" The
superintendent affirmed the CAB’s
decision, stating that "the surveillance
camera was not the basis for the
generation of this conduct report, and it
is noted that this issue was not raised
during your screening nor at the time of
your hearing." Piggie then appealed to
the final reviewing authority of the
Indiana Department of Corrections, and
again he raised the videotape issue. This
time he asserted that "upon being
screened Piggie requested the videotape,
but was denied!" The final reviewing
authority also affirmed the CAB’s
decision.

  Piggie then filed a petition for writ of
habeas corpus asserting seven grounds for
relief. The district court initially
granted his petition, holding that the
CAB’s denial of Piggie’s timely request
to have the videotape reviewed violated
his due process rights under Wolff v.
McDonnell, 418 U.S. 539, 566 (1974). The
court therefore ordered that a new
hearing be conducted with the tape, or if
the tape no longer existed, that the IDOC
reinstate Piggie’s good-time credit
earning classification and restore the
credits he lost as a result of the
demotion. The state, however, asked the
district court to vacate its judgment
pursuant to Federal Rule of Civil
Procedure 59 on grounds that the prison
superintendent’s finding that Piggie
failed to timely request the tape was
binding on federal habeas review. In
support of its motion to vacate, the
state also submitted an affidavit from
Officer Nowatzke asserting that if Piggie
had requested the tape, he would have
recorded Piggie’s request on the
screening report. In response Piggie
reiterated that he made his request to
Officer Nowatzke before the hearing and
again to the CAB at the hearing. He also
submitted an affidavit from his lay
advocate who attested to having seen
Piggie at the hearing provide the CAB
with his written statement requesting
that the CAB view the tape. The district
court granted the state’s motion and
denied Piggie’s petition on May 30, 2001.

Analysis

  Piggie argues that the district court
should not have denied habeas relief
because his due process rights were
violated by the CAB’s refusal to view, or
permit him access to, the surveillance
tape that he says would have exculpated
him. Indiana prisoners possess a liberty
interest in good-time credits, and
Indiana therefore must afford due process
before reducing a prisoner’s credit-
earning class. Montgomery v. Anderson,
262 F.3d 641, 645 (7th Cir. 2001).
TheSupreme Court has held that procedural
due process requires, among other
safeguards, that a prisoner "facing
disciplinary proceedings should be
allowed to call witnesses and present
documentary evidence when permitting him
to do so will not be unduly hazardous to
institutional safety or correctional
goals." Wolff, 418 U.S. at 566. Wolff
does not, however, guarantee prisoners
the unfettered right to call any witness
or present any evidence they wish
regardless of its relevance or necessity.
Id.; see also Forbes v. Trigg, 976 F.2d
308, 318 (7th Cir. 1992) (due process did
not require calling witness whose
"testimony could have added little"). But
the CAB "may not arbitrarily refuse to
consider exculpatory evidence simply
because other evidence in the record
suggests guilt." Whitford v. Boglino, 63
F.3d 527, 536 (7th Cir. 1995) (quoting
Viens v. Daniels, 871 F.2d 1328, 1336 n.2
(7th Cir. 1989)). And prisoners are
entitled to have exculpatory evidence
disclosed unless its disclosure would
unduly threaten institutional concerns.
Campbell v. Henman, 931 F.2d 1212, 1214-
15 (7th Cir. 1991); Chavis v. Rowe, 643
F.2d 1281, 1286 (7th Cir. 1981).

  Although the CAB need not explain at the
hearing why it denied an inmate’s request
for witnesses or potentially exculpatory
evidence, the CAB has the burden of
proving that its denial was not arbitrary
or capricious. See Ponte v. Real, 471
U.S. 491, 498-99 (1985). In its hearing
report, however, the CAB said nothing
about why it refused to view the
surveillance tape. And the state has not
suggested that the CAB’s review of the
tape, or the tape’s disclosure to Piggie,
would have jeopardized any institutional
or correctional goals. To the contrary,
the state concedes that the "security
tape is documentary evidence that the CAB
would be required to review if Piggie had
requested the tape. Failure to do so
would deprive Piggie of due process and
would warrant relief in this action." The
state instead argues that Piggie’s due
process rights were not violated because
he did not request the tape prior to his
CAB hearing. We agree that if Piggie
failed to make such a request either
before or at the hearing, then the CAB
could not have denied him due process by
not considering the request. McPherson v.
McBride, 188 F.3d 784, 786 (7th Cir.
1999) (due process does not require "the
consideration of evidence that could have
been but was not presented at the
hearing.").

  We disagree, however, with the state’s
contention that the prison
superintendent’s finding on appeal that
Piggie failed to timely request the tape
is binding on federal habeas review under
28 U.S.C. sec. 2254(e)(1). Section
2254(e)(1) speaks specifically of
determinations made by "state courts,"
and not by prison disciplinary boards:

In a proceeding instituted by an
application for a writ of habeas corpus
by a person in custody pursuant to the
judgment of a State court, a
determination of a factual issue made by
a state court shall be presumed to be
correct. The applicant shall have the
burden of rebutting the presumption of
correctness by clear and convincing
evidence.

(Emphasis added.) This court has not yet
addressed whether prison disciplinary
boards may be considered "state courts"
for purposes of sec. 2254(e)(1), and thus
whether the state may benefit from the
presumption of correctness. We have,
however, recently addressed whether
prison disciplinary boards are "courts"
for purposes of 28 U.S.C. sec. 2254(d),
and held that they are not. White v.
Indiana Parole Board, 266 F.3d 759, 765-
66 (7th Cir. 2001); see also Walker v.
O’Brien, 216 F.3d 626, 637 (7th Cir.
2000) (holding that state prisoners
challenging prison disciplinary
proceedings need not obtain a certificate
of appealability because the challenged
detention does not "arise[ ] out of
process issued by a State court."). But
cf. Markham v. Clark, 978 F.2d 993, 994-
95 (7th Cir. 1992) (CAB is tantamount to
"state court" for purposes of sec.
2254(b) requirement of exhausting
available state remedies). Because
Indiana has chosen not to makejudicial
process available to review prison
disciplinary board decisions, we
explained, the state may not benefit from
sec. 2254(d)’s limitation on the scope of
collateral attack with respect to those
decisions. See White, 266 F.3d at 766.
Our reasoning in White applies equally to
sec. 2254(e)(1), which expressly limits
applicability of the presumption of
correctness to a "determination of a
factual issue made by a state court."
Accordingly, we hold that the state may
not benefit from sec. 2254(e)(1)’s
presumption of correctness in appeals
from prison disciplinary proceedings.
Because the district court applied that
presumption in vacating its judgment and
denying habeas relief in this case, we
remand the case to the district court to
determine (1) whether the surveillance
tape has been erased by prison officials,
and if so, when did they erase it; and
(2) whether Piggie requested through
authorized prison officials that the CAB
view the surveillance tape, and if so,
when did he do so. If the district court
finds that Piggie made his request either
before or at the CAB hearing and that the
tape still existed at the time of his
request, then, as the state concedes,
relief should be granted.

  Accordingly, we VACATE the district
court’s judgment and REMAND the case to
the district court for further
proceedings consistent with this opinion.
