Tyrence D. Downey v. Fernando Garza

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 20, 2024 *
Decided November 21, 2024
Before
FRANK H. EASTERBROOK, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 24-1124
TYRENCE D. DOWNEY,
Petitioner-Appellant,
v.
FERNANDO GARZA,
Respondent-Appellee.
Appeal from the United States District
Court for the Northern District of
Illinois, Western Division.
No. 21 C 50196
Iain D. Johnston,
Judge.
O R D E R
* Since filing his petition in the district court, Downey has been transferred to USP Canaan
(located in Pennsylvania). Thus, we substitute Downey’s current warden, Fernando Garza, for Brian
Lammer, the previously named warden. See F ED . R. A PP. P. 43(c); Bridges v. Chambers, 425 F.3d 1048, 1050
(7th Cir. 2005) (citing Rumsfeld v. Padilla, 542 U.S. 426, 434–35 (2004)). We have agreed to decide the case
without oral argument because the briefs and record adequately present the facts and legal arguments,
and oral argument would not significantly aid the court. F ED . R. APP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 24-1124 Page 2
Tyrence Downey, a federal prisoner, appeals the denial of his petition under
28 U.S.C. § 2241 challenging the revocation of his good-conduct credit arising out of a
disciplinary incident at his prison. The district court denied his petition because
Downey failed to show that his due process rights were violated. We affirm.
In 2019, while Downey was housed at USP Victorville in California, 1 a female
correctional officer accused him of breaking prison disciplinary rules by leering at her
in a sexual manner. Downey responded that the officer was mistaken about who leered
at her, as he was in a different part of the prison at the time. Three weeks later, the
investigating correctional officer filed an incident report and scheduled Downey for a
disciplinary hearing about the episode.
Downey sought evidence to support his defense at the upcoming hearing.
Believing that the incident had been captured by a security camera, he requested that
the prison provide him with the video so he could prove that the officer had confused
him with another prisoner. The investigating officer responded that in accordance with
the Bureau of Prisons’s standard policy, the video was deleted 14 days after the
incident.
An annotation that Downey made to the incident report reflects two other ways
that he apparently intended to support his mistaken-identity defense: (1) doorway-scan
records, which would verify whether he had used his identification card to access the
area at the time the incident occurred; and (2) alibi testimony from two other prisoners,
who, he believed, could place him in a different part of the prison at the time of the
incident. But Downey never requested the doorway access records, and he later waived
his right to present witness testimony at the disciplinary hearing.
At his disciplinary hearing, Downey only testified from a prepared statement.
The hearing administrator credited the officer’s story over Downey’s because of her
familiarity with the prisoners. Downey was sanctioned with the loss of 27 days of good-
conduct time.
1 Downey was later transferred to FCI Thomson (a prison in this circuit), where he filed his §
2241 petition. The district court had jurisdiction over the petition, despite the incident taking place in
California, because only the district in which a petitioner is detained has jurisdiction to consider a § 2241
petition. E.g., Gamboa v. Daniels, 26 F.4th 410, 414 (7th Cir. 2022) (citing Rumsfeld, 542 U.S. at 435).
Although Downey was later transferred to USP Canaan, the district court retained jurisdiction to enter
judgment on the petition, and we have jurisdiction over the appeal. Id.

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No. 24-1124 Page 3
Downey then petitioned for a writ of habeas corpus under § 2241, alleging that
the prison violated his due process rights by deleting the video of the incident. The
district court denied the petition. The court expressed “deep[] concern[]” that the
officers may have acted in bad faith by delaying issuance of the incident report beyond
the standard videorecording retention period, see Arizona v. Youngblood, 488 U.S. 51, 58
(1988), but concluded that Downey’s rights were not violated because he could have
obtained comparable evidence to the videorecording from the doorway-access records
or alibi witness testimony, as he had proposed, see California v. Trombetta, 467 U.S. 479,
489–90 (1984).
On appeal, Downey challenges the district court’s conclusion that the alternative
evidence was comparable to the video. He argues that the video evidence was
“indisputable” and the only evidence of significance, given the inherent bias of a
disciplinary hearing officer in favor of the accusing correctional officer. He also
contends that requiring him to present comparable evidence unjustly invites the bad-
faith destruction of evidence without consequence.
Due process in a disciplinary hearing, among other protections, requires that the
prisoner be allowed to present evidence in his or her defense, Wolff v. McDonnell,
418 U.S. 539, 556 (1974), and that the prison disclose material exculpatory evidence to
the prisoner, Piggie v. Cotton, 344 F.3d 674, 678 (7th Cir. 2003) (citing Brady v. Maryland,
373 U.S. 83, 87 (1963)). A prison’s failure to preserve exculpatory evidence does not
deprive a prisoner of due process unless (1) the evidence was lost because of bad faith,
(2) the exculpatory nature of the evidence was apparent before its loss, and (3) the
prisoner could not have obtained comparable evidence anywhere else. Youngblood,
488 U.S. at 58; Trombetta, 467 U.S. at 489.
Downey’s claim fails on the third element. As the district court pointed out, both
the doorway records and the alibi witnesses would have achieved the same goal as the
video. His alibi witnesses would have testified that he was in a different part of the
prison, and the doorway-access records would have shown that he had not entered the
area where the encounter took place. Although the video might have allowed Downey
to make his argument “more force[fully],” the other evidence available to him was
sufficiently comparable under Youngblood because it provided “a basis for arguing” that
this was a case of mistaken identity. United States v. Kimoto, 588 F.3d 464, 490–91
(7th Cir. 2009).
Downey further argues that the district court should have excused his failure to
provide alternative evidence because allowing the correctional officers to act (he

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No. 24-1124 Page 4
alleges) in bad faith without consequence encourages officers to tilt the scales in their
favor at disciplinary hearings. But even if we assume that the officers acted in bad faith
and delayed issuing the incident report until the video was deleted, Trombetta instructs
that there is no due process violation so long as comparable evidence may be obtained
by reasonably available means, 467 U.S. at 489, as was the case here.
AFFIRMED

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