                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             JUL 12 2001
                            FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

    JOHN GRIFFIN,

                Petitioner-Appellant,

    v.                                                    No. 00-1081
                                                      (D.C. No. 99-Z-2429)
    JOSEPH BROOKS,                                          (D. Colo.)

                Respondent-Appellee.


                             ORDER AND JUDGMENT            *




Before EBEL , ANDERSON , and KELLY , Circuit Judges.



         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.

         John Griffin, a federal prisoner appearing pro se, appeals from the district

court’s dismissal of his petition for a writ of habeas corpus brought pursuant to



*
      This order and judgment is not binding precedent, except under the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.
28 U.S.C. § 2241. The petition challenges Mr. Griffin’s disciplinary conviction

and resultant sanctions for violating Bureau of Prisons (BOP) Code 205.    See

28 C.F.R. § 541.13 Table 3. Our jurisdiction arises under 28 U.S.C. § 2253(a),

and we affirm.


                       I. Background facts and proceedings

      The petition, supporting documents, and videotape of the behavior on

which the disciplinary conviction is based show the following facts. Mr. Griffin’s

wife and their four-year-old son visited him in the yard of the federal prison’s

visitor’s center in October 1998. The videotape shows that, while he was

embracing her from behind (with the front of his body facing her back),

Mr. Griffin’s wife reached behind her back, struggled to unzip his pants, reached

into the opening, and then moved her left hand and arm around for a few seconds

before withdrawing her hand. She then turned to face him and placed her right

hand into his open pants for a few more seconds. When their four-year-old child

interrupted, Mr. Griffin zipped his pants and they continued their visit until it was

terminated by prison officials. The total embracing and touching activity lasted

approximately one and one-half minutes.

      After officers terminated the visit, they examined Mr. Griffin and, in

a report entitled “[u]nauthorized contact with female visitor,” stated they “found

no evidence of semen stains.” R. Doc. 4, Ex. 6. Mr. Griffin was placed in

                                          -2-
administrative segregation and later charged with a Code 205 violation for

engaging in sexual activity.     See § 541.13 Table 3. The incident report

recommended a loss of 120 days visitation privileges and loss of 25% good

conduct time. Petitioner’s Reply Br., Ex. B-11.

       Mr. Griffin was granted a hearing with a discipline hearing officer (DHO)

assigned to conduct hearings regarding alleged prison violations.     See 28 C.F.R.

§ 541.2(c). At the hearing, Mr. Griffin purportedly gave the DHO a written

statement in which he admitted that his wife unzipped his pants and attempted

to touch him.   1
                    He apparently stated, however, that she could not touch his penis

due to the layers of clothing in the way, became discouraged, and stopped. He

apologized for the incident. R. Doc. 4, Ex. 7. The DHO’s report also submitted

that Mr. Griffin orally stated that “[h]is wife only grabbed his penis and didn’t

masturbate him at all. The motion was her lifting up his T-shirt, through the pant

fly area. Her movements were only her moving his clothing away and it could

have looked like she was masturbating him.”       Id. Based on the videotape and the

incident reports, the DHO determined that Mr. Griffin’s behavior constituted

“engaging in a sexual act” in violation of Code 205 and imposed sanctions of




1
       The written statement was not attached to the DHO’s report and is not in
the record, but the DHO summarized the statement in his report.

                                            -3-
loss of fourteen days good-time credit, thirty days disciplinary segregation, and

loss of one-year of visiting privileges.   Id.

       Mr. Griffin appealed his conviction and sanctions through prison

administrative procedures and then filed a petition for habeas corpus.    See Brown

v. Smith , 828 F.2d 1493, 1495 (10th Cir. 1987) (§ 2241 habeas petition is

appropriate means by which to restore good-time credits). The district court

ordered Mr. Griffin to amend his petition to show that he had exhausted

administrative remedies, which he did.     See R. Doc. 3, 4. Prior to service on

respondent of Mr. Griffin’s amended petition, the district court entered judgment

sua sponte in favor of respondent, dismissing the amended petition pursuant to

28 U.S.C. § 2243 (court must issue order directing respondent to show cause why

petition should not be granted unless it appears from the application that the

petitioner is not entitled to such an order).


                                      II. Discussion

       Mr. Griffin’s amended habeas petition raises two contentions: (1) the BOP

violated his procedural due process rights by not allowing him to view the

videotape, see Brady v. Maryland , 373 U.S. 83, 87 (1963) (“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”); and (2) his

substantive due process rights were violated because the evidence on which the

                                            -4-
DHO relied supported only a violation of either BOP Code 407 (conduct with

a visitor in violation of Bureau regulations) or 409 (unauthorized physical

contact like kissing, embracing), and not a violation of Code 205 (engaging in

sexual acts).

      The district court found that Mr. Griffin received due process because his

habeas petition demonstrated that he received notice of the charges, a hearing, and

a written statement of the reasons for the BOP’s decision, and some evidence

existed in the record to support the conviction for violating Code 205. R. Doc. 5,

at 3; see Mitchell v. Maynard , 80 F.3d 1433, 1444 (10th Cir. 1996) (discussing due

process requirements for hearings resulting in revocation of good-time credits).

The court did not, however, address either Mr. Griffin’s due process claim based

on an alleged Brady violation or his claim that, based on the evidence, he should

have been charged with, and convicted of, only Code 407 and/or Code 409

offenses instead of a Code 205 offense.

      On appeal, respondent moved to supplement the record with a copy of the

videotape for our in camera review and informed the court that a copy of the tape

had also voluntarily been sent to the facility where Mr. Griffin is incarcerated,

where he would be given an opportunity to view the tape.   2
                                                               We granted the motion


2
     Respondent has repeatedly represented to the court that he is in the process
of making the tape available to the petitioner for a supervised viewing but has
                                                                      (continued...)

                                          -5-
to supplement the record and have viewed the videotape. We review          de novo the

district court’s dismissal of a § 2241 habeas petition.     Patterson v. Knowles ,

162 F.3d 574, 575 (10th Cir. 1998).

       A. The Brady violation.        We first note that, because federal prisoners

have a liberty interest in receiving good-time credits, the deprivation of such must

comply with due process.      Brown , 828 F.2d at 1494. “[W]here 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.”    Viens v. Daniels , 871 F.2d 1328, 1336 n.2 (7th Cir. 1989).

The denial of access to evidence used by prison officials to prove the commission

of an offense may infringe an inmate’s right to know what evidence is used against

him and “marshal the facts in his defense.”         Young v. Kann , 926 F.2d 1396, 1402

(3d Cir. 1991) (quotation omitted). Mr. Griffin first asserts that the videotape

is exculpatory because it shows that he and his wife did not actually engage in

a sexual act, but only attempted to do so. He requested to see the videotape so that




2
 (...continued)
encountered some administrative delays. The court expects the respondent to
fulfill his commitment; but, for the reasons stated above, the disposition of this
appeal is not contingent on the petitioner’s interpretation of the tape.

                                              -6-
he could prove it, and bases his   Brady violation on the BOP’s alleged refusal to

allow him to see the tape.

       When a prisoner alleges a colorable       Brady violation, “[m]inimum due

process requires that the district court conduct an      in camera review of the entire

investigatory file (not only the material relied on to find guilt) to determine

whether or not exculpatory information existed.”          Campbell v. Henman , 931 F.2d

1212, 1215 (7th Cir. 1991). As mentioned above, the district court did not address

the alleged Brady violation or require the respondent to respond and produce the

videotape for in camera examination. The district court’s dismissal of the habeas

petition without examining the videotape for exculpatory material, however, is

harmless error.

       Mr. Griffin admits that his wife put her hand in his open pants so that

she could attempt to masturbate him. It is unquestionable that masturbation is

a “sexual act.” The regulations provide that “        [a]iding another person to commit

any of these offenses, [and]   attempting to commit any of these offenses . . . in all

categories of severity,   shall be considered the same as a commission of the offense

itself .” § 541.13(b) (emphasis in original). Because Mr. Griffin allowed his wife

to touch his genital area (even through his boxer shorts) so that she could attempt

to masturbate him, he attempted to engage in a sexual act, which is considered

under the regulations to be the same as actually engaging in the sexual act and is


                                             -7-
punishable in the same manner. The videotape showing only an attempt, therefore,

cannot exculpate Mr. Griffin, and the BOP’s alleged refusal to allow him to see

the videotape was not prejudicial to his defense. Mr. Griffin’s due process right

was not violated.

       B. Lesser offenses . We next address Mr. Griffin’s substantive due process

claim that he should have only been charged with violation of visitation codes of

conduct that carry lesser sanctions. Because his behavior was an attempt to

engage in sexual activity that is expressly prohibited under Code 205, it fits into

the higher offense category and was therefore permissible even though it could

also have been sanctioned under the low-moderate category of offenses. While it

appears to us that Mr. Griffin’s sanctions were unduly harsh in relation to the

severity of the offense he admittedly committed and the other offenses in that

category, we hesitate to interfere with prison officials’ decisions concerning the

day-to-day administration of prisons, to which we must accord deference unless

they violate the constitution or federal law.         See Turner v. Safley , 482 U.S. 78,

84-85 (1987).

       We therefore affirm the district court, albeit for different reasons.

See United States v. Sandoval    , 29 F.3d 537, 542 n.6 (10th Cir. 1994) (“We are

free to affirm a district court decision on any grounds for which there is a record




                                                -8-
sufficient to permit conclusions of law, even grounds not relied upon by the

district court.”) (quotations omitted).


                                III. Payment of fees

      Mr. Griffin has moved for leave to proceed on appeal without prepayment

of fees under 28 U.S.C. § 1915(b), and has consented to disbursement of partial

payments of the filing fees from his prison account. We grant Mr. Griffin’s

application to proceed in forma pauperis. He must pay $105.00 for appellate filing

fees. His custodian shall, within thirty days of the date of this order, deduct and

pay to the clerk of the United States District Court for the District of Colorado

an amount equal to 20% of the greater of:

      (A) the average monthly deposits to his account, or

      (B) the average monthly balance in his account for the six-month period

immediately preceding filing of the notice of appeal in this case.

      In either event, Mr. Griffin’s custodian shall forward payments from his

account equal to 20% of the preceding month’s income each time the account

exceeds $10.00 until the filing fees are paid in full. The district court clerk for

the District of Colorado is directed to serve a copy of this order on Mr. Griffin’s

custodian forthwith.




                                          -9-
     The judgment of the United States District Court for the District of

Colorado is AFFIRMED.



                                                  Entered for the Court



                                                  Stephen H. Anderson
                                                  Circuit Judge




                                       -10-
