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No Brady Violation in Prison Disciplinary Hearing; Videotape Inconclusive

The U.S. Seventh Circuit Court of Appeals, affirming the U.S. District
Court, Northern District of Indiana, denied habeas corpus relief to a state
prisoner challenging a disciplinary hearing that revoked his good-time
credits, where the prisoner alleged that prison officials violated Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) by not letting
him review videotaped evidence from a surveillance camera.

Jaime Herrera, a prisoner at the Indiana State Prison (ISP), was found
guilty at a prison disciplinary hearing of attempting to procure drugs.
According to prison officials, a security camera observed a "Cadillac,"
described as "a homemade strings and paper device used to pull items placed
within the paper between cells on the floor of [a range of cells]," being
pulled down the range floor. The officer who confiscated the Cadillac got
it before it reached Herrera's cell, but wrote him up, claiming the
Cadillac was intended for Herrera and that the Cadillac contained tobacco
and marijuana.

Herrera pleaded "not guilty" at his disciplinary hearing and requested to
view the videotape. The board refused to let Herrera review the tape but
did review it themselves. Herrera was found guilty but the case was
reversed on procedural error. At a second hearing, a panel that included
one of the prior members, using the videotape, conduct report and witness
statements, again found Herrera guilty and revoked 90 days good-time
credit. The panel found the videotape showed that Herrera was transporting
the Cadillac to his cell. Herrera, based on a statement provided by an ISP
sergeant, argued the videotape did not show that.

After exhausting his state remedies, Herrera sought habeas corpus relief
under 28 U.S.C. §2254. The district court initially remanded for
reconsideration in light of Piggie v. McBride, 277 F.3d 922 (7th Cir.
2002), but on the state's motion for reconsideration the district court
denied relief. Herrera appealed.

The appeals court agreed with Herrera that Brady applies to prison
disciplinary hearings, citing Chavis v. Rowe, 643 F.2d 1281 (7th Cir.
1981). The appellate court disagreed that a Brady violation had occurred.
First, the disciplinary board had good reasons, based on security, for
denying Herrera's request to review the videotape. Second, the panel
members themselves, as fact finders, had reviewed the videotape. Third,
even crediting the statement of the ISP Sergeant as true, the videotape was
not exculpatory but at best inconclusive. Thus, there was no Brady violation.

The district court's decision was affirmed. This case is published in the
Federal Appendix and is subject to rules governing unpublished cases. See:
Herrera v. Davis, 54 Fed.Appx. 861 (7th Cir. 2002).

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Related legal case

Herrera v. Davis

JAIME HERRERA, Petitioner-Appellant, v. CECIL DAVIS, Superintendent, Respondent-Appellee.

No. 02-2186


54 Fed. Appx. 861; 2002 U.S. App.

December 16, 2002 *, Submitted

* After an examination of the briefs and the record, we have concluded that oral argument in unnecessary. Thus, the appeal is submitted on the briefs and the record. See Fed. R. App. P. 34(a)(2).

December 17, 2002, Decided


PRIOR HISTORY: Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:01-cv-0491AS. Allen Sharp, Judge.


COUNSEL: JAIME HERRERA, Petitioner-Appellant, Pro se, Michigan City, IN USA.

For CECIL DAVIS, Respondent-Appellee: Christopher C.T. Stephen, OFFICE OF THE ATTORNEY GENERAL, Indianapolis, IN USA.

JUDGES: Before Hon. THOMAS E. FAIRCHILD, Circuit Judge, Hon. TERENCE T. EVANS, Circuit Judge, Hon. ANN CLAIRE WILLIAMS, Circuit Judge.

[*861] ORDER
A prison disciplinary board found Indiana inmate Jaime Herrera guilty of [*862] attempting to procure drugs and revoked 90 days of good-time credit. The board relied in part on a videotape of Herrera's alleged offense in finding him guilty, but denied Herrera access to the video because of security concerns. After exhausting his administrative remedies, Herrera filed a petition challenging the discipline under 28 U.S.C. § 2254, which the district court denied. On appeal Herrera argues that he should have had [**2] access to the video because it was exculpatory material and that "some impartial person" should have reviewed the video to verify its contents. Because Herrera's own representations about the content of the videotape demonstrate that it is not exculpatory, disclosure was not required and we affirm.
While monitoring by video a range at the Indiana State Prison in Michigan City, Correctional Officer B. Meekins noticed a "cadillac," a homemade string-and-paper device used to pull items placed within the paper between cells, on the floor of the range. He sent Correctional Officer P. Moore to confiscate the "cadillac." Moore stated in his conduct report that the string was being pulled from another offender's cell to Herrera's cell and that he was able to pick up the "cadillac" before it reached Herrera's cell. After testing revealed that the folded paper contained tobacco and marijuana, Herrera was charged with attempting to possess an unauthorized substance.
At his initial screening Herrera pleaded not guilty, claiming that the "cadillac" was not found in front of his cell. He also noted that guards had videotaped the alleged offense and requested to view the video. Although prison [**3] officials did not allow Herrera to watch the video, citing security concerns, the hearing report indicates that the disciplinary board did review the video and found Herrera guilty based on the video, the conduct report, and witness statements. Herrera appealed, however, and the facility head remanded for a rehearing because Herrera had not been given a copy of the test results for the marijuana.
Before the rehearing, disciplinary board members Hayes and Cook made a written report of the video, noting that it showed Herrera transporting a "cadillac" on the range with the help of another offender. Herrera avers in his brief that another prison guard confided to him that the video was not inculpatory:

Sergeant Carrasco confided to [me] that the videotape did not show [me] doing anything ... The stationary videocamera also recorded the backside of a very large, and very wide, prison guard, Officer Moore, walking down the 200 West range from the mounted camera, during which time nothing on the other side of the guard was visible to the camera. The videocamera recorded the officer picking up the string and its attached package, but nothing else. Upon viewing the videotape, [**4] it is absolutely impossible to discern where the string and package originated from or where it is destined for.

At the rehearing the three-member board, including Cook who had also served on the first disciplinary board, found Herrera guilty again. This time Herrera's administrative appeals were unsuccessful and this habeas corpus action followed.
Initially, the district court remanded the case to the prison system for reconsideration in light of our ruling in Piggie v. McBride, 277 F.3d 922 (7th Cir. 2002) (vacating dismissal of § 2254 petition and remanding to determine whether prisoner had ever requested to have the disciplinary board view video of alleged offense and whether prison officials erased video). But after the state moved to reconsider, the court denied Herrera's petition, concluding [*863] that Piggie did not apply to his case because his board had viewed the video and that Herrera did not have a right to view the video himself because of security concerns. The court never ruled on Herrera's motion to have the court inspect the video in camera.
Herrera asserts that prison officials violated his constitutional right of disclosure of exculpatory [**5] material under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). As Herrera correctly points out, the Brady rule applies in prison disciplinary proceedings, Chavis v. Rowe, 643 F.2d 1281, 1286 (7th Cir. 1981). But in this instance all of the members of the first board and two of the three members of the second board watched and considered the video, so Herrera cannot argue that evidence was improperly withheld from the factfinder. See White v. Ind. Parole Bd., 266 F.3d 759, 768 (7th Cir. 2001). Cf. Piggie, 277 F.3d at 925. And as for Herrera having access to the videotape himself, we have noted that under Brady, disclosure is limited to situations which "would not create security issues," Gaither v. Anderson, 236 F.3d 817, 820 (7th Cir. 2000), overruled on other grounds by White, 266 F.3d at 765-66. Here, prison officials have consistently asserted that allowing Herrera to view the videotape would jeopardize prison safety by providing him with knowledge of prison security camera capabilities, patterns, and location, thus allowing him to avoid detection [**6] in the future. Moreover, disclosure under Brady is not required when "there is no reason to believe that the contents of the videotape [are] exculpatory." Id. Herrera himself insists that "it is absolutely impossible to discern [from the video] where the string and package originated from or where it is destined for." By his own account, then, the video is not exculpatory. Instead, rather than showing that the "cadillac" was destined for another inmate, the video is inconclusive at best about the sender and intended recipient, and inculpatory at worst, as the board found. Therefore, there was no Brady violation and no need for in camera review of the videotape.
We also note that Herrera challenges the impartiality of two of the disciplinary board members. As the state properly asserted, however, Herrera failed to develop this issue in his brief by not setting forth his contentions with the district court's ruling and the authority for his argument, thus falling short of the requirements of Fed. R. App. P. 28(a)(9)(A). Although Herrera is proceeding pro se, his failure to adequately develop the basis for his claim renders it waived. See Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001). [**7]