                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 September 2, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    TIMOTHY SHAWN BOGUE, JR.,

                Petitioner-Appellant,

    v.                                                   No. 10-7080
                                             (D.C. No. 6:08-CV-00442-JHP-KEW)
    MARVIN VAUGHN, Warden,                                (E.D. Okla.)

                Respondent-Appellee.


                             ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, EBEL and O’BRIEN, Circuit Judges.



         We confront an issue regarding the extent to which a prisoner’s request for

the prison to produce relevant and available videotape recordings to use at his

disciplinary hearing may be satisfied by a prison official’s review and report of

the content of the recordings. In this case the prisoner’s right to inspect and




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
introduce relevant first hand evidence must give way to the prison’s security

concerns and procedures.

      In 2005 a fight between African-American and white inmates broke out

among a large group of prisoners incarcerated at the Cimarron Correctional

Facility (CCF) in Cushing, Oklahoma, a prison privately owned and operated by

Corrections Corporation of America (CCA) and housing Oklahoma Department of

Corrections inmates. As a result of the melee, one prisoner was killed and several

others were injured. Petitioner Timothy Shawn Bogue, Jr., who was among the

injured, was charged with misconduct for his part in the disturbance. At a

disciplinary hearing Bogue was found guilty of Group Disruptive Behavior. His

punishment included the revocation of 365 days earned credit, assignment to

thirty days in disciplinary segregation, and a reduction in earned-credit level.

Bogue pursued and exhausted available administrative remedies. Thereafter, he

sought relief from Oklahoma state courts without success.

      Bogue then turned to the federal courts. Among other things, his 28 U.S.C.

§ 2241 habeas petition asserts that Warden Vaughn and other CCF officials

violated his right to due process by failing to allow him to review the videotape

recordings of the incident and, if necessary, submit them into evidence at his

disciplinary hearing. The district court denied the petition and dismissed the

case. In holding “some evidence” in the record supported the conclusion

resulting from the disciplinary hearing, see Superintendent, Mass. Corr. Inst.,

                                         -2-
Walpole v. Hill, 472 U.S. 445, 454 (1985), the district court noted “[t]he

videotape of the incident was in the custody of the [Oklahoma State Bureau of

Investigation], but it was viewed by the investigator who reported in his Review

of Evidence that he identified petitioner as a participant in the group disturbance

by viewing the videotape made with a hand held camera.” R. at 166. Bogue

timely sought a Certificate of Appealability (COA) on several grounds.

      We granted a COA 1 on one issue: “Whether [Bogue] was denied due

process because he was not allowed to present as evidence the videotape of the

prison disturbance and was not allowed to view the videotape himself[,]” see

Bogue v. Vaughn, No. 10-7080, Order (10th Cir. May 24, 2011) (per Hartz, J.,)

(unpublished). We now affirm. 2

                                  I. DISCUSSION

       Because we are reviewing the denial of a § 2241 petition, 3 “the deference


1
       In order to appeal the denial of habeas relief in his § 2241 proceeding,
Bogue must obtain a certificate of appealability (COA) from this court. Dulworth
v. Jones, 496 F.3d 1133, 1135 (10th Cir. 2007). To warrant such certification,
Bogue must make “a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating
that jurists of reason could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude that the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell,
537 U.S. 322, 327 (2003). All but one of Bogue’s claims fail to clear the COA
hurdle.
2
      Our jurisdiction derives from 28 U.S.C. §§ 1291 and 2253(a).
3
      Bogue properly framed his habeas petition as pursuant to 28 U.S.C. § 2241
                                                                   (continued...)

                                         -3-
normally accorded state court judgments under § 2254 does not apply. Instead,

we review habeas claims made pursuant to § 2241, 4 including [Bogue’s],

de novo.” Walck v. Edmondson, 472 F.3d 1227, 1235 (10th Cir. 2007). While we

construe Bogue’s pro se pleadings liberally, Haines v. Kerner, 404 U.S. 519,

520-21 (1972), “we must refrain from usurping the role of prison administrators

while protecting the constitutional rights of the inmates,” Mitchell v. Maynard,

80 F.3d 1433, 1443 (10th Cir. 1996).

A. Due Process

      Because Oklahoma inmates possess a liberty interest in earned credits,

Wallace v. Cody, 951 F.2d 1170, 1172 n.1 (10th Cir. 1991), superseded by statute



3
 (...continued)
because he is challenging the execution of his sentence – the revocation of 365
days earned credit. Had he challenged the validity of his conviction or sentence,
he would have needed to proceed under 28 U.S.C. § 2254. See Montez v.
McKinna, 208 F.3d 862, 865 (10th Cir. 2000).
4
              In several instances, the language of § 2254 clearly indicates
      that its provisions are only operable as to a petition for habeas relief
      filed by “a person in custody pursuant to the judgment of a State
      court.” See 28 U.S.C. § 2254(a), (b), (d), (e). [O]ur prior cases have
      established that the somewhat ambiguous term “judgment of a State
      Court” within § 2254 refers only to conviction and sentence, see
      Dulworth v. Evans, 442 F.3d 1265, 1268 (10th Cir.2006); McIntosh
      v. United States Parole Comm'n, 115 F.3d 809, 811 (10th Cir.1997).
      The deferential standard of review contained within § 2254 is,
      therefore, only properly invoked when an individual in state custody
      collaterally attacks the validity of a state conviction and/or sentence.

Walck v. Edmondson, 472 F.3d 1227, 1234 (10th Cir. 2007) (citations omitted).
This case is not an attack on Bogue’s state conviction or sentence.

                                        -4-
on other grounds as recognized in Magar v. Parker, 490 F.3d 816 (10th Cir.

2007), they are entitled to due process protection before being deprived of those

credits. Wolff v. McDonnell, 418 U.S. 539, 557 (1974). When a prison

disciplinary hearing may result in the loss of earned credits, a prisoner must be

accorded “(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.” Hill, 472 U.S. at 454 (emphasis added); Wolff, 418 U.S. at

563-67. “[R]revocation of good time does not 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 (citation and quotation omitted).

      That being said, however, “[p]rison disciplinary proceedings are not part of

a criminal prosecution, and the full panoply of rights due a defendant in such

proceedings does not apply.” Wolff, 418 U.S. at 556.

      [C]onsideration of what procedures due process may require under
      any given set of circumstances must begin with a determination of
      the precise nature of the government function involved as well as of
      the private interest that has been affected by governmental action.
      Viewed in this light it is immediately apparent that one cannot
      automatically apply procedural rules designed for free citizens in an
      open society, or for parolees or probationers under only limited
      restraints, to the very different situation presented by a disciplinary
      proceeding in a state prison.

                                           -5-
Id. at 560 (citations and internal quotation marks omitted).

      Although the right of a prisoner to call witnesses and present documentary

evidence is at the heart of the Wolff requirements, the right is “necessarily

circumscribed by the penological need to provide swift discipline in individual

cases.” Ponte v. Real, 471 U.S. 491, 495 (1985). The right to call witnesses is

further subject to the “mutual accommodation between institutional needs and

objectives and the provisions of the Constitution.” Id. (internal quotation marks

omitted). “[A]s with a prisoner’s request to call a particular witness, prison

officials are required to consider a request for documentary evidence on an

individualized basis.” Howard v. United States Bureau of Prisons, 487 F.3d 808,

813 (10th Cir. 2007). “Prison officials must have the necessary discretion to keep

the hearing within reasonable limits and to refuse to call witnesses that may

create a risk of reprisal or undermine authority[.]” Wolff, 418 U.S. at 566.

A decision to disallow the presentation of a witness or other evidence will pass

due-process muster so long as the reasons for doing so are “logically related to

preventing undue hazards to institutional safety or correctional goals.” Ponte,

471 U.S. at 497 (internal quotation marks omitted). Indeed, the Supreme Court

has noted:

            Given these significant limitations on an inmate’s right to call
      witnesses, and given our further observation in Wolff that “[w]e




                                          -6-
      should not be too ready to exercise oversight and put aside the
      judgment of prison administrators,” it may be that a constitutional
      challenge to a disciplinary hearing . . . will rarely, if ever, be
      successful.

Id. at 499 (quotation omitted).

      Against this backdrop, we examine the particulars of Bogue’s due-process

claim. Overall Bogue insists he was an innocent bystander, was not involved in

the violence and was injured because he could not get away. He claims the

videotapes will substantiate his position. 5 He clearly asked for the videotapes

well before his disciplinary hearing. R. at 33.

      In lieu of producing actual evidence, CCF regulations allow investigating

officers to complete a detailed description of evidence, known as a “Review of

Evidence,” which is then attached to the Offense Report. That was done in this

case. In response to Bogue’s request for the videotapes, a CCF official prepared a

Witness Discretionary Action Record in which he stated “there is no video tape to

use as evidence. The video tape isn’t in CCA possession but in OSBI [Oklahoma

State Bureau of Investigation] custody.” 6 R. at 104. The officer thus declared the

5
      There were two sources of videotape. One was a fixed camera mounted
outside the perimeter fence which showed the recreation yard and the weight pile.
According to CCF officials, “[t]his portion of the tape recording shows a mass of
prisoners engaged in fighting, and there is no indication that any inmate is not
involved at some point in the melee.” R. at 120 (Group Disturbance Incident
Summary). The second camera was hand held and recorded “inmates entering the
gym from the weight area at the conclusion of the incident.” Id.
6
      Although there is no evidence in the record to support it, respondent’s brief
                                                                      (continued...)

                                         -7-
tapes unavailable for the disciplinary hearing. Id. at 52.

      As an accommodation for the fact that it could not access the actual

videotapes, respondent dispatched a staff member to the OSBI office to view the

tapes “for the sole purpose of identifying participants in the incident.” Id. at 120.

According to the officer, review of tape from the fixed camera showed “a mass of

prisoners engaged in fighting, [with] no indication that any inmate [was] not

involved at some point in the melee.” Id. The officer who reviewed the tape

from the hand-held camera also personally witnessed the fight and identified

Bogue “as a participant in the group disturbance as he was identified on the

weight pile immediately after the disturbance.” Id. at 34, 119. Bogue was given

a copy of the Review of Evidence describing the contents of the videotapes and

the Offense Report and was allowed to read both documents into the record at the

hearing. Id. at 72-73.

      Vaughn now argues “[m]aking a written record of observations is a

reasonable accommodation, based on the security requirements of the OSBI to

preserve the evidence in a criminal case involving the murder of an inmate

coupled with the need to provide[] due process appropriate to the situation.”

Answer Br. at 8. We agree. Under these circumstances, Bogue was not deprived

of due process.

6
(...continued)
maintains the OSBI would not release the videotapes to a private prison. Answer
Br. at 7.

                                          -8-
      A prisoner’s right to access documentary evidence in a disciplinary setting

is circumscribed by the need to determine “the precise nature of the government

function involved as well as of the private interest that has been affected by

governmental action.” Wolff, 418 U.S. at 560. The right can be exercised as long

as doing so “will not be unduly hazardous to institutional safety or correctional

goals.” Id. at 566.

      Here the initial government function involved the State’s need to

investigate a deadly altercation at one of its prisons involving warring groups.

The videotape evidence was likely critical to the State’s legitimate need to punish

the participants in the disturbance, thereby deterring such violent conduct in the

future. Failure to bring the participants to justice could easily be “hazardous to

institutional safety and correctional goals” at some future date. But that

overarching goal is not particularly relevant to the immediate issue.

      Here, Bogue’s interest in obtaining the videotapes (to demonstrate he did

not participate in the melee and therefore should not lose his earned credits) must

be balanced against the state’s need to efficiently and effectively deal with

prisoner discipline (rather than its original investigative purpose). As a general

matter, institutional concerns may dictate reliance on a summary of videotape

evidence in lieu of providing a prisoner with access to the tape itself. Wolff

requires prisoners be allowed to present documentary evidence but only when

permitting them to do so “will not be unduly hazardous to institutional safety or

                                         -9-
correctional goals.” Id. at 566. If introducing the actual tape into evidence or

permitting an inmate to view all of the tape of an entire incident poses the risk of

reprisals against other inmates, danger to guards, or additional prison conflict,

prison authorities are well within their discretion to devise ways to avoid those

risks.

         The reality is that disciplinary hearings and the imposition of
         disagreeable sanctions necessarily involve confrontations between
         inmates and authority and between inmates who are being disciplined
         and those who would charge or furnish evidence against them.
         Retaliation is much more than a theoretical possibility; and the basic
         and unavoidable task of providing reasonable personal safety for
         guards and inmates may be at stake, to say nothing of the impact of
         disciplinary confrontations and the resulting escalation of personal
         antagonism on the important aims of the correctional process.

Id. at 562.

         “There is much play in the joints of the Due Process Clause.” Wolff,

418 U.S. at 567. On these facts the procedure employed was within Vaughn’s

discretion, Wolff, 418 U.S. at 566-67, and was a reasonable accommodation of

Bogue’s needs; it appropriately balanced them against “institutional needs and

objectives and the provisions of the Constitution that are of general application.”

Id. at 556. This case is not significantly different from other prison disciplinary

proceedings where the prison relies on oral or written reports from correctional

officers detailing the results of their investigations – often purely hearsay

evidence. See, e.g., Taylor v. Wallace, 931 F.2d 698, 701 (10th Cir. 1991). Since

Vaughn no longer possessed the videotapes and, apparently, could not readily

                                          -10-
obtain them7 he was within his discretion to dispatch an officer to review the

tapes and report as to their contents. In addition, permitting Bogue to view the

recordings might well have compromised prison security by revealing its means

and methods of surveillance and response to riots or near riots. Moreover, some

of the information on the tapes about guards and other inmates might well have

been subject to misuse by Bogue and otherwise present collateral problems

impacting prison security and administration.

      The administrative review concluded “the degree of [Bogue’s] attempted

involvement in the event may be questioned, nonetheless it still occurred.” R. at

72. The process leading to that conclusion was hardly robust, but under the

circumstances it was all that was due.

B.    Issues not Warranting a COA

      In his application for a COA, Bogue also argues there was insufficient

evidence to support the prison disciplinary decision. As mentioned, however, due

process requires only that the decision of the hearing officer be supported by

“some evidence.” Hill, 472 U.S. at 455. “A disciplinary . . . decision can be


7
       “Because the only federal right at issue is procedural, the relevant inquiry
is what process [Bogue] received, not whether the [Disciplinary Hearing Officer
and] the state court[s] decided the case correctly.” Swarthout v. Cooke, 131 S. Ct.
859, 863, rehearing denied, 131 S. Ct. 1845 (2011). We also note this matter
does not involve lost or destroyed evidence as was the case in Arizona v.
Youngblood, 488 U.S. 51 (1988), but rather presents an issue of how far prison
officials must go to produce existing evidence no longer in their possession or
control.

                                         -11-
unheld by a reviewing court even if the evidence supporting the decision is

meager.” Howard, 487 F.3d at 812. As discussed, there was enough evidence of

Bogue’s guilt to satisfy the some-evidence standard.

      Bogue cites Zavaro v. Coughlin, 970 F.2d 1148 (2d Cir. 1992), to support

his due-process claim. Zavaro held the some-evidence standard was not met in a

disciplinary proceeding against an inmate who was one of 100 present at the site

of a riot. Id. at 1152-53. The sole evidence against the inmate was statements by

guards that every inmate had participated in the riot. Id. The court ruled the

statements inadequate because “such all-inclusive statements about the conduct of

one hundred or so inmates in a mess hall—especially coming from guards who

were at the time being assaulted—are so blatantly implausible when taken

literally that they do not constitute even ‘some evidence’ of a particular inmate’s

guilt.” Id. at 1152. Of course the Second Circuit’s decision is not binding; but

equally important, the cases are quite different. Unlike in Zavaro, where the

allegation that all inmates were involved in the melee came from a guard who was

being assaulted, the allegations here resulted from a more circumspect and

dispassionate review of video evidence (by an officer who had been present). In

addition, the officer’s review established that Bogue, in particular (not merely as

one of all inmates), participated to some degree in the melee.

      Bogue also argues he was denied due process because the Oklahoma

Department of Corrections did not abide by its own time limits. But a violation of

                                         -12-
state law is not a violation of constitutional due process. See Hulen v. Yates,

322 F.3d 1229, 1247 (10th Cir. 2003) (“in deciding whether a state has violated a

person’s constitutional right to procedural due process, we should pay no attention

to whether the state has complied with procedures mandated by state law”).

      In his reply brief, Bogue contends the notice of charge he received was

constitutionally deficient. Ordinarily, this court does not address issues raised for

the first time in a reply brief. Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000).

Even if we were to consider the issue, however, we would not grant a COA. The

record contains a copy of the Offense Report given Bogue after the incident.

R. at 32. It indicates the date, time, and place of the Group Disruptive Behavior,

describes the incident and notes Bogue’s participation in it. An Amended Offense

Report was given to Bogue some months later after prison officials had reviewed

the tape made by the hand-held camera. Id. at 57. The Amended Report similarly

informed Bogue of the particulars of the charge against him. These reports were

given to Bogue well in advance of his disciplinary hearing giving him adequate

opportunity “to marshal the facts in his defense and to clarify what the charges

[were], in fact.” See Wolff, 418 U.S. at 564.

      Because none of these issues constitutes “a substantial showing of the

denial of a constitutional right,” see 28 U.S.C. § 2253(c)(2), and because no jurist

of reason could disagree with the district court’s resolution of these claims, we

deny a COA on them and dismiss the portion of the appeal addressing them.

                                         -13-
      The judgment of the district court as to the videotape-production issue

(upon which we granted a COA) is AFFIRMED. 8


                                                  Entered for the Court


                                                  Terrence L. O’Brien
                                                  Circuit Judge




8
       The district court granted permission to appeal without prepayment of fees
(IFP), but not before Bogue filed a similar motion in this court. His motion for
IFP to this court is therefore denied as moot.


                                       -14-
