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JAIME HERRERA,
Petitioner-Appellant,
v.
CECIL DAVIS,
Superintendent, Respondent-Appellee.
54 Fed. Appx. 861
December 16, 2002 *, Submitted
December 17, 2002, Decided
NOTICE: RULES OF THE SEVENTH CIRCUIT COURT OF
APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES
OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
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 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 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, 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 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 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).
AFFIRMED.
* 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).