                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           DEC 16 2003
                            FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk


    REGINALD J. GODLOCK,

                Petitioner-Appellant,

    v.                                                    No. 03-6003
                                                    (D.C. No. CIV-02-514-C)
    BRENT FATKIN, Warden;                                 (W.D. Okla.)
    ATTORNEY GENERAL OF THE
    STATE OF OKLAHOMA,

                Respondents-Appellees.


                             ORDER AND JUDGMENT           *




Before MURPHY , HARTZ , and McCONNELL , Circuit Judges.


         Petitioner Reginald J. Godlock, a state prisoner appearing pro se, appeals

the district court’s denial of habeas relief. Although petitioner filed his habeas

petition under 28 U.S.C. § 2254, the district court properly construed the petition



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
(seeking restoration of 365 days’ earned credit) as challenging the execution of

his sentence under 28 U.S.C. § 2241.      See Montez v. McKinna , 208 F.3d 862, 865

(10th Cir. 2000).

       Our jurisdiction over petitioner’s appeal arises under 28 U.S.C. § 1291.

We review de novo the district court’s dismissal of a § 2241 habeas petition,

see Patterson v. Knowles , 162 F.3d 574, 575 (10th Cir. 1998), and construe

petitioner’s pleadings liberally.   George v. Perrill , 62 F.3d 333, 335 (10th Cir.

1995). In so doing, we are reminded that “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). Because our review of

the record, the briefs, and applicable law persuades us that petitioner is not

entitled to habeas relief, even though we reach this conclusion on different

grounds than the district court, we affirm.          Chandler v. City of Arvada   , 292 F.3d

1236, 1242 (10th Cir. 2002).


                                    BACKGROUND

       Petitioner is incarcerated in Oklahoma’s Lawton Correctional Facility

(LCF). On April 17, 2001, a LCF inmate was assaulted and injured. Lieutenant

Manuel, a LCF officer, viewed a surveillance videotape of the incident and

determined that petitioner was an assailant.          Petitioner, however, claims he was in

the library at the time of the incident and that LCF’s library log corroborates this

                                               -2-
contention. Petitioner was charged with the misconduct offense of a Class X

Battery.

      Before petitioner’s disciplinary hearing he asked to view the videotape.

Petitioner also requested that a medical report of the victim’s injuries be part of

the hearing evidence. Neither the videotape nor a medical report was submitted

into evidence. On May 8, 2001, the hearing officer found petitioner guilty of

a Class X Battery. He was sentenced to thirty days’ administrative segregation

and lost 365 days of earned credit.

      On review, LCF’s Designee for the Director (Designee) concluded that

petitioner was not afforded procedural due process. LCF’s Designee therefore

ordered: (1) further investigation to look into the availability of the videotape and

documentation of the victim’s injuries; and (2) a rehearing. Lieutenant Manuel

subsequently provided a written statement that the videotape was not available

because it had been “recorded over.” R., Doc. 2, Ex. R. Prison officials did not

produce a medical report. Petitioner was again found guilty of a Class X Battery

at his August 13 rehearing, the warden rejected petitioner’s appeal, and LCF’s

Designee concurred with the finding of guilt.

      Thereafter, petitioner sought mandamus relief in state court. The trial court

found that the observations of staff and the identification of the petitioner on the

videotape met the “some evidence” standard of    Superintendent, Massachusetts


                                          -3-
Correctional Institute, Walpole v. Hill   , 472 U.S. 445, 454 (1985), held that

petitioner received all the process he was due, and denied his application. The

Oklahoma Court of Criminal Appeals affirmed. Petitioner then turned to the

federal judiciary for relief, reasserting in his habeas petition that prison officials

violated his right to due process by failing to submit into evidence the videotape

and a medical report. Finding “some evidence,”       id. , to support petitioner’s

disciplinary conviction, the magistrate judge recommended that the district court

deny habeas relief. The district court adopted the magistrate judge’s report and

recommendation, and the petitioner timely appealed.


                                      DISCUSSION

       This court issued a certificate of appealibility (COA) on the following

issues: (I) when a prisoner believes he was denied a meaningful opportunity to

contest the charges against him due to a disciplinary board’s refusal to allow the

prisoner access to relevant materials, can we analyze this procedural due process

claim under the rubric of sufficiency of the evidence?      See Hill , 472 U.S. at 455-

57; Wolff v. McDonnell , 418 U.S. 539 (1974);      Mitchell , 80 F.3d at 1445; and (II)

does an inmate have a right to expect prison officials to follow the prison’s

policies and regulations, and the prison director’s (or designee for the director’s)

directives?



                                            -4-
                                                 I.

       Oklahoma inmates possess a liberty interest in earned credits,          Wallace v.

Cody , 951 F.2d 1170, 1172 n.1 (10th Cir. 1991), and are entitled to due process

protection prior to the loss of those credits.         Wolff , 418 U.S. at 557. When a

prison disciplinary hearing may result in the loss of earned credits, a prisoner 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.

Mitchell , 80 F.3d at 1445 (emphasis added);           Wolff , 418 U.S. at 563-67. In

addition, “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 omitted).

       Petitioner does not dispute that he was provided written notice of the battery

charge prior to his May hearing and August rehearing. The due process review

form completed during petitioner’s rehearing indicates that he was allowed to call

witnesses and present documentary evidence. As reflected in LCF’s Designee’s

concurrence,

       you [petitioner] provided a sign in/out log verifying that you were in
       the library [from 2:30 to 3:35 p.m., R., Doc. 2, Ex. E]. However, the

                                                 -5-
       hearing officer did not find this as credible evidence. He documented
       that your sign in time does not follow the chronological order of the
       other sign in times. This provided reasonable belief that you wrote
       your “time in” incorrectly. [And despite your witness’s statement that
       you] “did sign into the law library at 2:30” . . . [i]t is possible that the
       witness was testifying to the information on the log in sheet and not
       from his personal observation of seeing you enter the library at 2:30.
       Further, he documented that he cannot verify that you did not leave
       the library and return later to sign out.

R., Doc. 2, Ex. U. Moreover, the evidence relied on and the reasons for LCF’s

disciplinary action are contained in the record.   1



       Notwithstanding, petitioner asserts that prison officials violated his “right to

present documentary evidence in his defense by not allowing [him] the opportunity

to view the videotape prior to the hearing . . . [and] by not allowing [him] the

opportunity to have a photocopy of a ‘Medical Report’ prior to the hearing.”



1
       LCF’s Designee’s concurrence, R., Doc. 2, Ex. U, observes that the hearing
officer relied upon Lieutenant Manuel’s written statement identifying the
petitioner and describing the victim’s injuries: “[A]t 1530hrs. I observed [the
victim] walking toward the Medical Department and he had blood covering his
face and shirt.” Id. , Ex. S.

       The Offense Report documents that [the victim] had a “severe
       laceration to his face.”. . . Although a medical report would have
       provided additional evidence, it is not mandatory. The hearing
       officer relied upon the statement from Lieutenant Manuel that
       verified you were observed, on video tape, battering [the victim].
       The statement is sufficient evidence since it has been documented
       that the video is no longer available for the hearing officer and
       inmate to view.

Id., Ex. U.

                                             -6-
Aplt. Br. at 16. Thus, petitioner is not claiming that his right to procedural due

process was violated because there was insufficient evidence.       See Hill , 472 U.S.

at 454. Instead he claims that prison disciplinary officers denied him procedural

due process, Wolff , 418 U.S. at 566 (the right to “present documentary evidence in

his defense”), by not allowing him access to evidence. The Supreme Court has

said that when the basis for attacking a disciplinary judgment is a procedural

defect, not sufficiency of the evidence, it is irrelevant that

      the record contains ample evidence to support the [disciplinary]
      judgment . . . . [O]ur discussion in Hill in no way abrogated the due
      process requirements enunciated in Wolff , but simply held that in
      addition to those requirements, revocation of good-time credits does
      not comport with the minimum requirements of procedural due
      process unless the findings are supported by some evidence in the
      record.

Edwards v. Balisok , 520 U.S. 641, 648 (1997) (citation omitted). Likewise, this

court has observed that “where a   prisoner believes he was denied a meaningful

opportunity to contest the charges against him due to a disciplinary board’s refusal

to . . . allow the prisoner access to relevant materials, the challenge is one of

procedural due process rather than sufficiency of the evidence.” Griffin v. Brooks,

13 Fed. Appx. 861, 864 (10th Cir. July 12, 2001) (unpublished) (quoting Viens v.

Daniels, 871 F.2d 1328, 1336 n.2 (7th Cir. 1989)).    2
                                                          Under Edwards , it is



2
      Because it is an unpublished decision, our citation to Griffin is for its
persuasive value only, in accordance with 10th Cir. R. 36.3(B).

                                           -7-
immaterial to our inquiry whether there was some evidence to support petitioner’s

disciplinary judgment.    See 520 U.S. at 648. Rather, our task is to determine

whether petitioner was afforded the due process requirements enunciated in              Wolff .

418 U.S. at 563-67.

       A.     Videotape

       “‘Whenever potentially exculpatory evidence is permanently lost, courts

face the treacherous task of divining the import of materials whose contents are

unknown and, very often, disputed.’”          Arizona v. Youngblood , 488 U.S. 51, 57-58

(1988) (quoting California v. Trombetta , 467 U.S. 479, 486 (1984)). While the

reuse of the videotape in this case is regrettable, absent bad faith, its destruction

does not constitute a due process violation.         3
                                                         “[U]nless a criminal defendant can

show bad faith . . . failure to preserve potentially useful evidence does not

constitute a denial of due process of law.”          Id. at 58.

       It follows, then, that because petitioner would not have been constitutionally

entitled to the preservation of the videotape had he been charged with a criminal

offense, petitioner was not constitutionally entitled to the preservation of the

videotape when charged with a prison misconduct offense.               See Griffin v. Spratt ,

969 F.2d 16, 18 (3d Cir. 1992) (applying        Youngblood to a prison disciplinary



3
      The record before us does not demonstrate any allegation or indication of
bad faith on the part of LCF officials.

                                               -8-
proceeding and holding that “corrections officers did not violate due process

because there was no evidence that they discarded the [allegedly exculpatory

evidence] in bad faith”). Accordingly, LCF’s officials’ failure to preserve the

videotape of the battery did not violate petitioner’s right to procedural due

process.

       B.     Medical Report

       Whereas Youngblood governs the government’s failure to preserve

potentially exculpatory evidence,      Brady v. Maryland , 373 U.S. 83, 87 (1963),

governs exculpatory material that is still in the government’s possession. In a

criminal trial, “suppression by the prosecution of evidence favorable to an accused

upon request violates due process where the evidence is material either to guilt or

to punishment, irrespective of the good faith or bad faith of the prosecution.”        Id.

“Because a Brady claim is in fact a due process claim, it is clear that we are

empowered, under the appropriate circumstances, to grant federal habeas corpus

relief ‘on the ground that [the petitioner] is in custody in violation of the

Constitution . . . of the United States.’”    Smith v. Sec’y of N.M. Dep’t of Corrs.   ,

50 F.3d 801, 822-23 n.31 (10th Cir. 1995) (quoting 28 U.S.C. § 2254(a)).

Although this Circuit has not held that      Brady is applicable to prison disciplinary




                                              -9-
hearings, 4 we need not decide that issue today to affirm the district court’s denial

of habeas corpus relief.

      Under Brady , a criminal defendant bears the burden of showing “1) that the

prosecution suppressed evidence; 2) that the evidence was favorable to the

accused; and 3) that the evidence was material.”      United States v. Pearl , 324 F.3d

1210, 1215 (10th Cir.),    cert. denied , 123 S. Ct. 2591 (2003). Respondent’s brief

on appeal suggests that a medical report exists and that it is in LCF’s possession.

See Aplees. Br. at 4-5 (“Petitioner . . . was denied [the] . . . medical report of the

victim.”). It therefore seems fair to infer that LCF suppressed the report.

      Turning to the second and third prongs of      Brady , evidence is favorable if it

“would tend to exculpate [the accused] or reduce the penalty.” 373 U.S. at 88.

Materiality “is met only if there is a ‘reasonable probability’ that the outcome of

the trial would have been different had the evidence been disclosed to the

defense.” United States v. Gonzalez-Montoya        , 161 F.3d 643, 649 (10th Cir. 1998)

(quoting United States v. Bagley , 473 U.S. 667, 682 (1985)). Although petitioner

offers various theories to support his position, his conclusory allegations and




4
       Compare Piggie v. Cotton , 344 F.3d 674, 678 (7th Cir. 2003) (holding that
“the rule of Brady , . . . requiring the disclosure of material exculpatory evidence,
applies to prison disciplinary proceedings”).

                                           -10-
speculation about what the medical report might contain fail to meet the       Brady

standard.   5



       Indeed, having closely considered the record and briefs, we are not

obligated to remand for an     in camera review of the medical report to determine

whether it contains     Brady material. See United States v. Walrath , 324 F.3d 966,

969-70 (8th Cir. 2003) (“Mere speculation that a government file may contain

Brady material is not sufficient to require a remand for      in camera inspection.”

(quotation omitted));    accord United States v. Mitchell    , 178 F.3d 904, 908 (7th Cir.

1999). See also Pennsylvania v. Ritchie , 480 U.S. 39, 58 n.15 (1987) (defendant

“‘must at least make some plausible showing of how [the evidence] would have

been both material and favorable to his defense’” (quoting        United States v.

Valenzuela-Bernal , 458 U.S. 858, 867 (1982)));       Riley v. Taylor , 277 F.3d 261, 301

(3d Cir. 2001) (“A defendant seeking an       in camera inspection to determine

whether files contain    Brady material must at least make a plausible showing that

the inspection will reveal material evidence. Mere speculation is not enough.”


5
       For example, petitioner contends that the “medical report is relevant to the
‘Battery’ and should have been included in the record and provided to [him].”
Aplt. Br. at 16(g). But relevancy is not enough to demonstrate a constitutional
deprivation. The evidence must be favorable and material.      Pearl , 324 F.3d at
1215. Petitioner also states that the victim “could have gotten injured while
playing basketball in the gym or simply had a nose bleed. It is not known what
type of injury [the victim] received, if any, because there is no ‘Medical Report’
in the record.” Aplt. Br. at 16(g). True, but petitioner’s bare assertion, without
more, fails to meet the Brady standard.

                                            -11-
(quotation omitted)). Petitioner does not carry his burden under   Brady , and LCF’s

officials’ failure to produce the medical report, therefore, did not violate

petitioner’s right to procedural due process.         6



                                                II.

       The second question presented by our grant of COA echoes an assertion

made by petitioner; that is, LCF’s officials’ violation of internal policy,

regulations, and directives equates to a violation of petitioner’s right to due

process. 7 We disagree.




6
        Construing petitioner’s pleadings and appellate brief liberally, as we must,
Cummings v. Evans , 161 F.3d 610, 613 (10th Cir. 1998), we note that petitioner
also makes allegations concerning the medical report that sound like he is
challenging the sufficiency of the evidence under   Hill . For example, petitioner
contends that without a medical report documenting the victim’s injuries, he
should have been charged with the lesser offense of a Class A Battery; in other
words, he alleges that there was not enough evidence to charge him with a Class
X Battery. Aplt. Br. at 16(e); R., Doc. 2 at 8. But this argument, and others like
it, fail because there was sufficient evidence to support petitioner’s conviction of
a Class X Battery.
7
       Petitioner maintains that prison officials did not adhere to: (a) Disciplinary
Procedure OP-060125 F.3., which states that the hearing officer and inmate “will”
review any videotape that is part of the evidence, and (b) Disciplinary Procedure
OP-060125 F.1., which provides that evidence of the alleged violation “will be
confiscated, labeled, and secured . . . and . . . retained for three years following
the final appeal in the disciplinary matter.” R., Doc. 2, Ex. M. Petitioner also
contends that prison officials disregarded the instructions provided by LCF’s
Designee: “Further investigation will . . . include obtaining documentation of the
victim’s injuries. A medical report will be included to document the injuries
[and] . . . [t]he inmate will receive a copy of the report at least 24 hours prior to
rehearing.” Id. , Ex. G.

                                            -12-
       Prison regulations are “primarily designed to guide correctional officials in

the administration of a prison. [They are] not designed to confer rights on

inmates.” Sandin v. Conner , 515 U.S. 472, 481-82 (1995). Although states may

create liberty interests protected by due process, “these interests will be generally

limited to freedom from restraint which . . . imposes atypical and significant

hardship on the inmate in relation to the ordinary incidents of prison life.”      Id.

at 484 (citations omitted). This case does not present a situation where “a prison

regulation or practice offends a fundamental constitutional guarantee.”         Turner v.

Safley , 482 U.S. 78, 84 (1987). Petitioner does not have a cognizable claim for

federal habeas relief based solely on the failure of LCF to follow particular

regulations and directives.

       The judgment of the district court is AFFIRMED. As a final matter, we

note that petitioner sought leave to proceed on appeal without prepayment of costs

or fees. We have reviewed petitioner’s financial declaration and GRANT his

request.


                                                         Entered for the Court



                                                         Michael R. Murphy
                                                         Circuit Judge




                                             -13-
