* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 12 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

JOHN GRIFFIN,

Petitioner-Appellant,

v. JOSEPH BROOKS,

Respondent-Appellee. No. 00-1081 (D.C. No. 99-Z-2429) (D. Colo.)

ORDER AND JUDGMENT *

Before EBEL , ANDERSON , and KELLY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he 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 hab eas corpus brought pursuant to-2-

28 U.S.C. § 2241. The petition challenges Mr. Grif fin’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 arise s under 28 U.S.C. § 2253(a), and we affirm.
I. Background facts and proceedings The petition, supporting documents, and videotape o f 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 sh ows that, while he was embracing her from behind (with the front of his bo dy facing her back), Mr. Griffin’s wife reached behind her back, struggl ed 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 fa ce 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 embracin g 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 fema le visitor,” stated they “found no evidence of semen stains.” R. Doc. 4, Ex. 6. M r. Griffin was placed in1 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- administrative segregation and later charged with aCode 205 violation for engaging in sexual activity. See § 541.13 Table 3. The incident report recommended a loss of 120 days visitation privilege s 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 purportedl y gave the DHO a written statement in which he admitted that his wife unzipp ed his pants and attempted to touch him. 1 He apparently stated, however, that she could nottouch his penis due to the layers of clothing in the way, became di scouraged, and stopped. He apologized for the incident. R. Doc. 4, Ex. 7. Th e DHO’s report also submitted that Mr. Griffin orally stated that “[h]is wife onl y 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 c lothing 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. Griff in’s behavior constituted “engaging in a sexual act” in violation of Code 205 and imposed sanctions of-4-

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 habe as petition is appropriate means by which to restore good-time cre dits). 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 d istrict court entered judgment sua sponte in favor of respondent, dismissing the amended pet ition 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 fr om the application that the petitioner is not entitled to such an order).

II. Discussion Mr. Griffin’s amended habeas petition raises two co ntentions: (1) the BOP violated his procedural due process rights by not a llowing 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 upo n request violates due process where the evidence is material either to guilt or t o punishment”); and (2) his substantive due process rights were violated becaus e the evidence on which the2 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- DHO relied supported only a violation of either BOP Code 407 (conduct with a visitor in violation of Bureau regulations) or 40 9 (unauthorized physical contact like kissing, embracing), and not a violati on 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 notic e of the charges, a hearing, and a written statement of the reasons for the BOP’s de cision, and some evidence existed in the record to support the conviction forviolating Code 205. R. Doc. 5, at 3; see Mitchell v. Maynard , 80 F.3d 1433, 1444 (10th Cir. 1996) (discussing d ue process requirements for hearings resulting in revo cation of good-time credits). The court did not, however, address either Mr. Grif fin’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 recor d with a copy of the videotape for our in camera review and informed the court that a copy of the t ape had also voluntarily been sent to the facility wher e Mr. Griffin is incarcerated, where he would be given an opportunity to view the tape. 2We granted the motion2 (...continued)

encountered some administrative delays. The court expects the respondent to fulfill his commitment; but, for the reasons statedabove, the disposition of this appeal is not contingent on the petitioner’s interp retation of the tape. -6- 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 cred its, 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 p risoner access to relevant materials, the challenge is one of procedural due p rocess 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 off icials to prove the commission of an offense may infringe an inmate’s right to kno w 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 fi rst asserts that the videotape is exculpatory because it shows that he and his wif e did not actually engage in a sexual act, but only attempted to do so. He requ ested to see the videotape so that-7-

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 onto find guilt) to determine whether or not exculpatory information existed.” Campbell v. Henman , 931 F.2d 1212, 1215 (7th Cir. 1991). As mentioned above, th e district court did not address the alleged Brady violation or require the respondent to respond andproduce the videotape for in camera examination. The district court’s dismissal of th e habeas petition without examining the videotape for exculp atory material, however, is harmless error. Mr. Griffin admits that his wife put her hand in hi s open pants so that she could attempt to masturbate him. It is unquest ionable 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 th e offense itself .” § 541.13(b) (emphasis in original). Because Mr . Griffin allowed his wife to touch his genital area (even through his boxer s horts) so that she could attempt to masturbate him, he attempted to engage in a sexu al act, which is considered under the regulations to be the same as actually en gaging in the sexual act and is-8-

punishable in the same manner. The videotape showi ng only an attempt, therefore, cannot exculpate Mr. Griffin, and the BOP’s allegedrefusal 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 pr ocess claim that he should have only been charged with vi olation of visitation codes of conduct that carry lesser sanctions. Because his b ehavior was an attempt to engage in sexual activity that is expressly prohibi ted under Code 205, it fits into the higher offense category and was therefore permi ssible 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 und uly harsh in relation to the severity of the offense he admittedly committed andthe other offenses in that category, we hesitate to interfere with prison offi cials’ decisions concerning the day-to-day administration of prisons, to which we m ust 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 gro unds for which there is a record-9-

sufficient to permit conclusions of law, even groun ds not relied upon by the district court.”) (quotations omitted).
III. Payment of fees Mr. Griffin has moved for leave to proceed on appea l without prepayment of fees under 28 U.S.C. § 1915(b), and has consente d 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 appea l in this case. In either event, Mr. Griffin’s custodian shall forw ard payments from his account equal to 20% of the preceding month’s incom e each time the account exceeds $10.00 until the filing fees are paid in fu ll. The district court clerk for the District of Colorado is directed to serve a cop y of this order on Mr. Griffin’s custodian forthwith.-10-

The judgment of the United States District Court fo r the District of Colorado is AFFIRMED.

Entered for the Court

Stephen H. Anderson Circuit Judge