Piggie v. Cotton, 02-3068.

• Decision Date: 18 July 2003
• Docket Number: No. 02-3068.,No. 02-2083.,02-3068.,02-2083.
• Citation: 342 F.3d 660
• Parties: Clyde PIGGIE, Petitioner-Appellant, v. Zettie COTTON,<SMALL><SUP>*</SUP></SMALL> Respondent-Appellee. Cylde Piggie, Petitioner-Appellant, v. Zettie Cotton, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 660

342 F.3d 660

Clyde PIGGIE, Petitioner-Appellant, v. Zettie COTTON,^* Respondent-Appellee.

Cylde Piggie, Petitioner-Appellant, v. Zettie Cotton, Respondent-Appellee.

No. 02-3068.

No. 02-2083.

United States Court of Appeals, Seventh Circuit.

Submitted June 18, 2003.

Decided July 18, 2003.

Opinion September 4, 2003.^**

COPYRIGHT MATERIAL OMITTED

Clyde Piggie (submitted a brief), Pendleton, Correctional Facility, Pendleton, for Petitioner-Appellant. IN, pro se. Scott A. Kreider (submitted a brief), Office of the Attorney General, Indianapolis, IN, for Respondent-Appellee.

Before MANION, ROVNER, and DIANE P. WOOD, Circuit Judges.

PER CURIAM.

Indiana inmate Clyde Piggie seeks habeas corpus relief from two disciplinary convictions. Because he lost good-time credits as a result of each conviction, the petitions were properly brought under 28 U.S.C. § 2254, see Montgomery v. Anderson, 262 F.3d 641, 643 (7th Cir.2001), and the proceedings before the disciplinary board had to comply with minimal standards of due process, see Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 453, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985); Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). In the prison disciplinary context, due process requires only that the prisoner receive advance written notice of the charges, see Wolff, 418 U.S. at 564, 94 S.Ct. 2963, an opportunity to present testimony and documentary evidence to an impartial decision-maker, id. at 566, 570-71, 94 S.Ct. 2963, and a written explanation for the discipline, id. at 564, 94 S.Ct. 2963, that is supported by "some evidence" in the record, see Hill, 472 U.S. at 454-55, 105 S.Ct. 2768; Webb v. Anderson, 224 F.3d 649, 652 (7th Cir.2000). The district court denied Piggie's petitions, concluding that the proceedings in each case satisfied those standards. We consolidated the appeals, and now affirm in both cases.

1. Appeal No. 02-3068

Appeal no. 02-3068 comes to us after remand. In that case Piggie challenged the conduct adjustment board's ("CAB") decision finding him guilty of sexual assault for grabbing a correctional officer's buttocks when he passed her in a prison hallway on May 7, 1999. The facts are explained in detail in Piggie v. McBride, 277 F.3d 922 (7th Cir.2002) ("Piggie I"). Piggie contended that the CAB violated his due process rights by refusing to view a surveillance tape of the incident that he maintains would have exculpated him, despite his requests during the screening process and at the CAB hearing. The district court, Judge Sharp, initially contemplated granting the writ but later reconsidered on the ground that the court was bound by the prison superintendent's finding on administrative appeal that Piggie had not requested the tape. We vacated and remanded for further proceedings, concluding that § 2254(e)(1)'s presumption of correctness does not apply in appeals from prison disciplinary convictions. Id. at 925-26. We instructed the district court to consider two questions on remand: "(1) whether the surveillance tape has been erased by prison officials, and if so, when did they erase it; and (2) whether Piggie requested through authorized prison officials that the CAB view the surveillance tape, and if so, when did he do so." Id. at 926. If Piggie made a request either before or at the CAB hearing and the tape still existed at the time of his request then, we advised, relief should be granted. Id.

The district court appointed counsel to represent Piggie on remand and convened an evidentiary hearing. Piggie has not requested that a transcript of the hearing be prepared and included as part of the appellate record, though he had the burden to do so. See Fed. R.App. P. 10(b)(2); LaFollette v. Savage, 63 F.3d 540, 544 (7th Cir.1995). We will dismiss an appeal if the absence of the transcript precludes meaningful review. LaFollette, 63 F.3d at 544; Woods v. Thieret, 5 F.3d 244, 245 (7th Cir.1993). Meaningful review is possible here, however, since the parties do not dispute the substance of the witnesses' testimony at the evidentiary hearing. It is undisputed that Piggie testified that during the screening process he asked that the CAB view the tape but that Officer Nowatzke told him that the tape could not be viewed without a court order. Further, he and his lay advocate asserted that Piggie repeated his request for the tape at the CAB hearing, but the CAB chairman, Vince Forestieri, said that there was no tape. In contrast, Officer Nowatzke testified that he did not specifically re-call Piggie's case, but said that he typically recorded pre-hearing requests by prisoners for physical evidence in a "screening" report, and he made no such recording when screening Piggie. The three CAB members who conducted Piggie's hearing testified that they remembered the case, and neither Piggie nor his lay advocate requested that the surveillance tape be viewed at the hearing on May 12, 1999. They further stated that normally the CAB transcribed such requests on their report of the hearing, but that Piggie's report contained no notation to that effect. Captain Daniel Forker, who was responsible for surveillance taping in May 1999, testified that surveillance tapes were typically recycled every six days unless withdrawn. Finally, another prison official testified that a recent search for the surveillance tape of the incident had been fruitless.

In light of these divergent versions of events, the district court considered the case "a close one because it fundamentally comes down to a question on credibility" but went on to resolve that question against Piggie, finding the prison officials more credible. In doing so, the court noted that the "paper evidence" corroborated the officials' claim that Piggie did not ask that the tape be viewed until his administrative appeal two weeks after the CAB hearing, and according to Captain Forker, by that time the tape had been recycled. Because Piggie did not timely request the tape, the court, in accordance with Piggie I, concluded that the CAB could not have denied Piggie due process by refusing to view it. See Piggie I, 277 F.3d at 925 (citing McPherson v. McBride, 188 F.3d 784, 786 (7th Cir.1999) (rejecting contention that due process requires later "consideration of evidence that could have been but was not presented at the hearing")).

On appeal Piggie maintains that he did, in fact, make a timely request for the tape. We review the district court's factual determinations for clear error, and under that standard we will affirm so long as the district court's account is plausible in light of the evidence. White v. Godinez, 301 F.3d 796, 801 (7th Cir.2002) (citing Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)). Special deference is given to determinations based on credibility findings, which "can virtually never be clear error." Anderson, 470 U.S. at 575, 105 S.Ct. 1504. In spite of this deferential standard, Piggie argues that the district court should have believed him instead of the prison officials. He contends that the district court clearly erred because the court purportedly found the same screening officer and CAB chairman's testimony incredible in a nearly identical case concerning a pre-hearing request for a surveillance tape. See Mayers v. Anderson, 93 F.Supp.2d 962 (N.D.Ind.2000) (Sharp, J.). Indeed, in that case the prisoner, Darnell Mayers, likewise asserted that the CAB refused to view a surveillance tape of the incident despite his requests at his screening interview and again at the CAB hearing. The state contended that Mayers did not mention the tape until his initial administrative appeal, pointing to the absence of any notation of the alleged request on the screening or hearing reports. Id. at 967. Specifically, Chairman Forestieri averred that he did not recall Mayers' case but that his usual practice was to record such requests. The district court, however, was unconvinced, noting that neither the screening nor the hearing report had sections concerning documentary or other types of evidence. Id. at 966-67. Without holding an evidentiary hearing, the court found that Mayers indeed had made a timely request for the tape and granted the writ. Id. at 967-68.

The fact that the district court reached a different conclusion in Piggie's case does not render its determination clearly erroneous. In Piggie's case the court conducted an evidentiary hearing, and evidence adduced at that hearing supports the court's conclusion. In particular, we note that here, unlike in Mayers, the state corroborated Nowatzke and the CAB members' testimony with reports from other cases in which prisoner requests for surveillance tapes were noted. And in Piggie's case the CAB members specifically recalled that Piggie did not request the tape at the hearing. Piggie contends that it is unbelievable that the CAB members could remember his hearing but not Mayers'. But the district court found the CAB members' testimony credible, and we do not second-guess the district judge on matters of credibility. See Anderson, 470 U.S. at 575, 105 S.Ct. 1504; United States v. Stokes, 211 F.3d 1039, 1045 (7th Cir.2000). Based on the record in this case, we see no reason to disturb the district court's decision to credit the prison officials' testimony over Piggie's.

Piggie next attacks the proceedings on remand, arguing that he is entitled to a new hearing because the district court improperly placed the burden of proof on him and his appointed counsel was ineffective. These attacks also are unavailing. Although the court noted, correctly we think, see Farmer v. Litscher, 303 F.3d 840, 845 (7th Cir.2002), that a habeas corpus petitioner generally bears the burden of establishing that he or she is entitled to relief under § 2254, the district court did not put the burden on Piggie on remand. To the contrary, the court went on to assume that, in this case, ...