In the

United States Court of Appeals

For the Seventh Circuit

No. 01-2611

Clyde Piggie,

Petitioner-Appellant,

v.

Daniel McBride, Superintendent,

Respondent-Appellee.

Appeal from the United States District Court 

for the Northern District of Indiana, South Bend Division.

No. 99 C 561--Allen Sharp, Judge.

Submitted December 18, 2001--Decided January 17, 2002

 Before Posner, Manion, and Rovner, Circuit

Judges.

 Per Curiam. Clyde Piggie, an Indiana

state prisoner, filed a petition for writ

of habeas corpus under sec. 2254, arguing

that he was denied due process of law in

a prison disciplinary hearing. The

district court denied Piggie’s petition.

We vacate the district court’s judgment

and remand this case to the district

court for further proceedings.

Background

 On May 7, 1999, correctional officer

LaDonna Ellis wrote a conduct report

charging Piggie with sexual assault for

squeezing her buttocks when he was

passing her in a prison hallway. On May

10, 1999, Piggie was given written notice

of a hearing before the prison’s Conduct

Adjustment Board (or "CAB"), as reflected

in a screening report prepared by Officer

Jason Nowatzke. The screening report also

noted that Piggie requested a lay

advocate to represent him and that he be

permitted to call Officer Ellis as a

witness at the hearing. Piggie contends

that he also told Officer Nowatzke during

the screening interview that he wished to

have the CAB view the videotape from the

prison’s surveillance camera that may

have recorded the incident. But, he says,

Nowatzke responded that the tape could
not be viewed without a court order. The

screening report did not reflect Piggie’s

request for the tape.

 Piggie pleaded not guilty and attended

the disciplinary hearing on May 12, 1999.

At the hearing Piggie denied squeezing

Officer Ellis’s buttocks but stated that

he may have accidentally touched her when

he passed by her in the hallway. Ellis

did not testify but instead submitted a

statement in which she asserted that her

conduct report "stands as written."

According to Piggie, at the hearing he

again requested that the CAB view the

surveillance tape, and he handed a

written statement repeating that request

to the CAB chairman. But, Piggie

contends, the chairman told him there was

no tape. The report of the hearing does

not mention Piggie’s request or state any

reasons why the CAB did not view the

tape. According to the state, the

prison’s policy was to reuse the

surveillance tapes soon after they were

recorded, and the tape no longer exists.

 Based on Officer Ellis’s report, the CAB

found Piggie guilty of sexual assault.

The CAB sentenced him to two years in

disciplinary segregation and demoted him

from good-time credit class II to credit

class III. Piggie first appealed the

CAB’s decision to the prison

superintendent, raising a number of

issues including the CAB’s failure to

review the surveillance tape. In that

regard he stated, "[i]f someone would

please review the videotape of that date

and time, it will show with no doubt the

[sic] he is not guilty . . . . In a case

like this one . . . it should be ’Manda

tory’ to review the video camera!" The

superintendent affirmed the CAB’s

decision, stating that "the surveillance

camera was not the basis for the

generation of this conduct report, and it

is noted that this issue was not raised

during your screening nor at the time of

your hearing." Piggie then appealed to

the final reviewing authority of the

Indiana Department of Corrections, and

again he raised the videotape issue. This

time he asserted that "upon being

screened Piggie requested the videotape,

but was denied!" The final reviewing

authority also affirmed the CAB’s

decision.

 Piggie then filed a petition for writ of
habeas corpus asserting seven grounds for

relief. The district court initially

granted his petition, holding that the

CAB’s denial of Piggie’s timely request

to have the videotape reviewed violated

his due process rights under Wolff v.

McDonnell, 418 U.S. 539, 566 (1974). The

court therefore ordered that a new

hearing be conducted with the tape, or if

the tape no longer existed, that the IDOC

reinstate Piggie’s good-time credit

earning classification and restore the

credits he lost as a result of the

demotion. The state, however, asked the

district court to vacate its judgment

pursuant to Federal Rule of Civil

Procedure 59 on grounds that the prison

superintendent’s finding that Piggie

failed to timely request the tape was

binding on federal habeas review. In

support of its motion to vacate, the

state also submitted an affidavit from

Officer Nowatzke asserting that if Piggie

had requested the tape, he would have

recorded Piggie’s request on the

screening report. In response Piggie

reiterated that he made his request to

Officer Nowatzke before the hearing and

again to the CAB at the hearing. He also

submitted an affidavit from his lay

advocate who attested to having seen

Piggie at the hearing provide the CAB

with his written statement requesting

that the CAB view the tape. The district

court granted the state’s motion and

denied Piggie’s petition on May 30, 2001.

Analysis

 Piggie argues that the district court

should not have denied habeas relief

because his due process rights were

violated by the CAB’s refusal to view, or

permit him access to, the surveillance

tape that he says would have exculpated

him. Indiana prisoners possess a liberty

interest in good-time credits, and

Indiana therefore must afford due process

before reducing a prisoner’s creditearning class. Montgomery v. Anderson,

262 F.3d 641, 645 (7th Cir. 2001).

TheSupreme Court has held that procedural

due process requires, among other

safeguards, that a prisoner "facing

disciplinary proceedings should be

allowed to call witnesses and present

documentary evidence when permitting him

to do so will not be unduly hazardous to

institutional safety or correctional

goals." Wolff, 418 U.S. at 566. Wolff
does not, however, guarantee prisoners

the unfettered right to call any witness

or present any evidence they wish

regardless of its relevance or necessity.

Id.; see also Forbes v. Trigg, 976 F.2d

308, 318 (7th Cir. 1992) (due process did

not require calling witness whose

"testimony could have added little"). But

the CAB "may not arbitrarily refuse to

consider exculpatory evidence simply

because other evidence in the record

suggests guilt." Whitford v. Boglino, 63

F.3d 527, 536 (7th Cir. 1995) (quoting

Viens v. Daniels, 871 F.2d 1328, 1336 n.2

(7th Cir. 1989)). And prisoners are

entitled to have exculpatory evidence

disclosed unless its disclosure would

unduly threaten institutional concerns.

Campbell v. Henman, 931 F.2d 1212, 1214-

15 (7th Cir. 1991); Chavis v. Rowe, 643

F.2d 1281, 1286 (7th Cir. 1981).

 Although the CAB need not explain at the

hearing why it denied an inmate’s request

for witnesses or potentially exculpatory

evidence, the CAB has the burden of

proving that its denial was not arbitrary

or capricious. See Ponte v. Real, 471

U.S. 491, 498-99 (1985). In its hearing

report, however, the CAB said nothing

about why it refused to view the

surveillance tape. And the state has not

suggested that the CAB’s review of the

tape, or the tape’s disclosure to Piggie,

would have jeopardized any institutional

or correctional goals. To the contrary,

the state concedes that the "security

tape is documentary evidence that the CAB

would be required to review if Piggie had

requested the tape. Failure to do so

would deprive Piggie of due process and

would warrant relief in this action." The

state instead argues that Piggie’s due

process rights were not violated because

he did not request the tape prior to his

CAB hearing. We agree that if Piggie

failed to make such a request either

before or at the hearing, then the CAB

could not have denied him due process by

not considering the request. McPherson v.

McBride, 188 F.3d 784, 786 (7th Cir.

1999) (due process does not require "the

consideration of evidence that could have

been but was not presented at the

hearing.").

 We disagree, however, with the state’s

contention that the prison

superintendent’s finding on appeal that

Piggie failed to timely request the tape
is binding on federal habeas review under

28 U.S.C. sec. 2254(e)(1). Section

2254(e)(1) speaks specifically of

determinations made by "state courts,"

and not by prison disciplinary boards:

In a proceeding instituted by an

application for a writ of habeas corpus

by a person in custody pursuant to the

judgment of a State court, a

determination of a factual issue made by

a state court shall be presumed to be

correct. The applicant shall have the

burden of rebutting the presumption of

correctness by clear and convincing

evidence.

(Emphasis added.) This court has not yet

addressed whether prison disciplinary

boards may be considered "state courts"

for purposes of sec. 2254(e)(1), and thus

whether the state may benefit from the

presumption of correctness. We have,

however, recently addressed whether

prison disciplinary boards are "courts"

for purposes of 28 U.S.C. sec. 2254(d),

and held that they are not. White v.

Indiana Parole Board, 266 F.3d 759, 765-

66 (7th Cir. 2001); see also Walker v.

O’Brien, 216 F.3d 626, 637 (7th Cir.

2000) (holding that state prisoners

challenging prison disciplinary

proceedings need not obtain a certificate

of appealability because the challenged

detention does not "arise[ ] out of

process issued by a State court."). But

cf. Markham v. Clark, 978 F.2d 993, 994-

95 (7th Cir. 1992) (CAB is tantamount to

"state court" for purposes of sec.

2254(b) requirement of exhausting

available state remedies). Because

Indiana has chosen not to makejudicial

process available to review prison

disciplinary board decisions, we

explained, the state may not benefit from

sec. 2254(d)’s limitation on the scope of

collateral attack with respect to those

decisions. See White, 266 F.3d at 766.

Our reasoning in White applies equally to

sec. 2254(e)(1), which expressly limits

applicability of the presumption of

correctness to a "determination of a

factual issue made by a state court."

Accordingly, we hold that the state may

not benefit from sec. 2254(e)(1)’s

presumption of correctness in appeals

from prison disciplinary proceedings.

Because the district court applied that

presumption in vacating its judgment and

denying habeas relief in this case, we
remand the case to the district court to

determine (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. If the district court

finds that Piggie made his request either

before or at the CAB hearing and that the

tape still existed at the time of his

request, then, as the state concedes,

relief should be granted.

 Accordingly, we VACATE the district

court’s judgment and REMAND the case to

the district court for further

proceedings consistent with this opinion.