Cotten vs. Ward

Filing 920060804

Opinion

United States Court of Appeals Tenth Circuit U N I T E D STATES CO U R T O F APPEALS T E N T H CIRCUIT

FILED

A u g u st 4, 2006
Elisabeth A. Shumaker C le r k of Court

G E R A L D L. COTTEN, Petitioner-Appellant, v. RON WARD, R e sp o n d e n t-A p p e lle e . N o . 06-6038 ( D . C . No. 05-CV-392-R) (W . D. Okla.)

OR D E R

B e f o r e K E L L Y , M c K A Y , and LUCERO, Circuit Judges.

A p p e l l a n t is a state prisoner, appearing pro se, seeking habeas relief p u r s u a n t to 28 U.S.C. § 2241. He is currently in the custody of the Oklahoma D e p a r t m e n t of Corrections incarcerated in the Great Plains Correctional Facility. In this action, Appellant is challenging the result of a disciplinary hearing held on A u g u s t 19, 2004. Appellant was found guilty of Individual Disruptive Behavior ( w h i c h consisted of possessing another inmate's property) in violation of Rule 022 6 , and as a result of his conviction, Appellant lost sixty days of earned credit and w a s reassigned to Level I for forty-five days. Appellant's conviction, which he a p p e a l e d , was affirmed by facility head and the Director's Designee. Appellant contends that prison officials violated his due process rights by

p u n i s h i n g him "without evidence" that he was guilty of the rule infraction with w h i c h he had been charged. Alternatively, he argues that the rule he was c o n v i c t e d of violating is "too ambiguous to provide `fair notice' to inmates of w h a t conduct is actually forbidden." Appellant also claims that prison authorities v i o l a t e d his First Amendment rights by instituting a policy which prohibits inmate l e g a l assistants from working on another inmate's legal issues outside the library. W h i l e Oklahoma inmates have a liberty interest in earned good-time c r e d i t s , and consequently Appellant is entitled to due process protection, we agree w i t h the district court that he received the due process he was due. The m a g i s t r a t e judge made a thorough recitation of the evidence presented against A p p e l l a n t during his disciplinary proceeding. See Report and Recommendation, 3 - 4 (W . D . Okla. July 26, 2005). As the district court stated, Rule 02-26 "is s u f f i c i e n t l y clear and unambiguous to provide fair notice to inmates of what c o n d u c t is prohibited[:] Possession of property belonging to another person." Order, 4 (W . D . Okla. Dec. 28, 2005). Appellant was convicted of possessing p r o p e r t y belonging to another inmate, to which he admitted. A s to Appellant's First Amendment claim, the district court, agreeing with t h e magistrate judge, determined "that this claim challenges the conditions of his c o n f i n e m e n t , and thus should be properly raised in a civil rights proceeding under T i t l e 42 U.S.C. § 1983 after exhaustion of administrative remedies. This claim d o e s not state a cognizable ground for habeas corpus relief." O r d e r , at 4. W e are -2-

i n accord with the district court's reasoning. A p p e l l a n t now seeks from this court a certificate of appealability. The i s s u e s he raises on appeal are identical to those brought before the district court. T o grant a certificate of appealability, Appellant must make a "substantial s h o w i n g of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2) (1994). To meet this burden, Appellant must demonstrate "that reasonable jurists could d e b a t e whether (or, for that matter, agree that) the petition should have been r e s o l v e d in a different manner or that the issues presented were adequate to d e s e r v e encouragement to proceed further." Slack v. M c D a n i e l , 529 U.S. 473, 4 8 4 (2000) (quotation omitted). W e have carefully reviewed Appellant's brief, the magistrate judge's r e c o m m e n d a t i o n s , the district court's disposition, and the record on appeal. Nothing in the facts, the record on appeal, or Petitioner's filing raises an issue w h i c h meets our standard for the grant of a certificate of appealability. For s u b s t a n t i a l l y the same reasons set forth by the magistrate judge in the Report and R e c o m m e n d a t i o n of July 26, 2005, and the district court's order of December 28, 2 0 0 5 , we cannot say "that reasonable jurists could debate whether (or, for that m a t t e r , agree that) the petition should have been resolved in a different manner." Id. Accordingly, we D E N Y Petitioner's request for a certificate of a p p e a l a b i l i t y and DISM I S S the appeal. W e deny Appellant's motion to proceed -3-

i n forma pauperis and remind him of his obligation to pay the filing fee. E n t e r e d for the Court

M o n r o e G. M c K a y C i r c u i t Judge

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