FILED
United States Court of Appeals
Tenth Circuit
October 23, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
DAVID WHITMORE,
Petitioner - Appellant,
No. 13-6162
v. (D.C. No. 5:12-CV-01408-M)
(W.D. Okla.)
JANET DOWLING, Warden,
Respondent - Appellee.
ORDER DENYING
CERTIFICATE OF APPEALABILITY *
Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.
David Whitmore, a state prisoner proceeding pro se, applied for relief
under 28 U.S.C. § 2241 in the United States District Court for the Western
District of Oklahoma. The district court denied the application. Mr. Whitmore
now seeks a certificate of appealability (“COA”) from this court so that he may
appeal the district court’s denial. See Montez v. McKinna, 208 F.3d 862, 868-69
(10th Cir. 2000) (requiring a COA to appeal dismissal of habeas petition brought
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
by state prisoner under 28 U.S.C. § 2241). We deny Mr. Whitmore a COA and
dismiss this matter.
BACKGROUND
Mr. Whitmore is serving a 35-year sentence, entered in February 1989, for
his conviction on a first degree manslaughter charge. He is currently incarcerated
at the Joseph Harp Correctional Center located in Lexington, Oklahoma. The
disciplinary proceeding that was the subject of the § 2241 petition below and is
the subject of this appeal was conducted at the Lawton Correctional Facility
(“LCF”) where Mr. Whitmore was previously confined.
As described by the district court, the relevant facts are as follows: On
July 28, 2009, an LCF official, Mr. Parham, authored an Offense Report in which
Mr. Whitmore was charged with the misconduct offense of assault/battery with
injury. In his description of the offense, Mr. Parham stated that, “after further
interview with the offender it was determined that offender Whitmore was
involved in a physical altercation with another offender causing injury to the
other offender . . .” Supp. Report & Recommendation at 2 (adopted by the
district court), R. Vol. 1 at 90. Mr. Whitmore’s handwritten statement, dated
July 28, 2009, and written on a form titled “T.A.S.K. Conflict Resolution Form
100,” described the event as follows:
-2-
[m]y younger Homie and another guy from a rival gang got into at
breakest, one from the rival gang dissed . . . my young Homie from
PLAYBOY GANGSTA CRIP, by saying pass the peanut butter, they
started arguing, his homies started talking loud, so I interject into the
convo. and tried to take controll of the situation, and did a pretty
good, well one of the guy didn’t like what I was saying and they
started cussing me out, one got in my face, the other pushed his tray
into me, and told me to stay out of it. Well I didn’t, because I knew
the history of the two gangs and I didn’t want it to be gang against
gang fight. The Hoovers had been running wild and this little thing
could have set it off. While trying to talk to the guy from Hoover,
they started fighting, and I’m trying to break them up and got hit.
But when it was all said and done I was able to keep it from getting
out of hand, and spreading to another housing unit.
Id.
LCF Investigating Officer Kirkpatrick completed an Investigator’s Report
dated August 7, 2009. This report indicates that Mr. Whitmore requested to call
two witnesses, inmate “King,” who supposedly would testify that Mr. Whitmore
“was not fighting,” and the alleged victim, who would testify that he (Mr.
Whitmore) “did not assault him [the victim].” Id. at 91. Mr. Whitmore also
requested a “video” as documentary evidence. Officer Kirkpatrick determined
that “King” was not qualified to be a witness because there were three inmates
with that last name in the housing unit in which Mr. Whitmore stated “King” was
confined, and Mr. Whitmore “could not be more specific as to which offender
King it was.” Id. Officer Kirkpatrick elected to take a statement from the alleged
victim, but the victim refused to give a statement.
-3-
Mr. Whitmore received a copy of the offense report on September 16, 2009,
and he requested a hearing. In the disciplinary hearing conducted on
September 18, 2009, Mr. Whitmore presented a written statement by another
inmate who denied that Mr. Whitmore was involved in the “fight” but admitted
that Mr. Whitmore was “hit in the eyes by somebody else” while “trying to break
up the fight that day.” Id. at 91. Medical records presented at the hearing
indicated that three inmates, including Mr. Whitmore, sustained injuries in the
incident. Mr. Whitmore’s handwritten statement was also presented at the
hearing.
Mr. Whitmore was found guilty of the offense. To support the finding of
guilt, the disciplinary hearing officer explained in his written report of the hearing
that, “Sgt. Parham states that on 28 July 2009 at 0700 hours a 10-10 offender on
offender fight was called in House 2 E pod. After further interview with [Mr.
Whitmore] it was determined that [Mr. Whitmore] was involved in a physical
altercation with [the alleged victim],” “[b]ody sheets show injuries to both
offenders, as well as injuries to [a third offender],” and “staff has nothing to gain
by fabricating the event.” Id. at 92. As punishment, Mr. Whitmore was
sentenced to disciplinary segregation for thirty days, a loss of 365 earned credits
and a reduction to classification level 1 for 90 days. The head of the facility
(LCF) affirmed the misconduct finding and the punishment.
-4-
Mr. Whitmore appealed the misconduct to LCF Warden Miller. Mr.
Whitmore claimed there was insufficient evidence to support the misconduct
finding and that he never received a written statement supporting the guilty
finding. Mr. Whitmore further averred that he “never said that he was involved in
any fight, ONLY that he was trying to prevent a potential gang fight between 2
other inmates,” and “the injury report [described] injuries that he received getting
in between some offenders that were fighting.” Id. Mr. Whitmore also claimed
that the disciplinary hearing officer “did not do any fact finding, all he done was
record keeping.” Id. Warden Miller affirmed the misconduct finding and the
punishment imposed.
Mr. Whitmore appealed that decision to the Oklahoma Department of
Corrections’ Administrative Review Authority (“ARA”). Mr. Whitmore again
asserted that he was not fighting but was merely “breaking up a fight between two
offenders” and that “[b]oth of these inmates plead guilty to their offense reports.”
Id. at 92-93. In a decision dated December 7, 2009, the ARA denied the appeal
based upon the finding that there was sufficient evidence to support the battery
misconduct and that Mr. Whitmore was provided with a written statement of the
evidence supporting the determination of guilt.
In accordance with Okla. Stat. tit. 57, § 564.1, Mr. Whitmore filed a
petition for judicial review of the disciplinary decision in the District Court of
-5-
Oklahoma County, and the petition was denied. The Oklahoma Court of Criminal
Appeals affirmed the district court’s order denying relief.
Mr. Whitmore then sought relief in the federal district court, which initially
referred the matter to a magistrate judge. The magistrate judge noted that its
“records reflect that Petitioner has filed fourteen 28 U.S.C. § 2241 and 42 U.S.C.
§ 1983 actions in this court in the past three years, most of which challenge
institutional disciplinary proceedings.” Supp. Report & Recommendation at 5
n.2, R. Vol. 1 at 93. Mr. Whitmore claimed he had been denied due process
because: there was not “some evidence” to support the finding of guilt in the
disciplinary proceeding; there was no eyewitness to the incident; there was no
evidence of his anger of hostile intent to commit a battery; and he did not admit
to being actively involved in the altercation. As a second ground for relief, Mr.
Whitmore claims he was denied the opportunity to call his witness “King.” As a
third ground for relief, Mr. Whitman alleges (similarly to his first ground for
relief) that the written statement by the disciplinary hearing officer was
inadequate because “it amounted to ‘record keeping’ not ‘fact finding,’” it failed
to explain why the officer discredited Mr. Whitman’s evidence, and it failed to
explain on “what part of the interview” the officer relied in finding him guilty.
The district court (having adopted the magistrate judge’s report and
recommendation) noted that, although it appears that Mr. Whitmore failed to raise
the issue concerning the denial of his opportunity to present a witness in either his
-6-
administrative grievance process or in his state court petition for review, the
defendant in this case has expressly waived any exhaustion defense. We
accordingly deem this matter exhausted. See Williams v. Jones, 571 F.3d 1086,
1089 (10th Cir. 2009) (recognizing that the state may waive exhaustion defense
with express waiver through counsel).
Turning to the merits of Mr. Whitmore’s petition, the court denied him
habeas relief, finding that “the evidence is sufficient to provide the ‘modicum of
evidence’ necessary to support the finding of guilt.” Supp. Report &
Recommendation at 8, R. Vol.1 at 96 (adopted by the district court). The court
also found that Mr. Whitmore was given the opportunity to present witnesses in
his defense, and the statement of reasons entered by the disciplinary hearing
officer was adequate to establish the finding of Mr. Whitmore’s guilt. As the
court concluded, Mr. Whitmore “was not denied due process in connection with
the disciplinary proceeding, [and] he is not entitled to habeas relief.” Id. at 97.
Mr. Whitmore now seeks a COA to enable him to appeal that adverse decision.
DISCUSSION
Mr. Whitmore may not appeal the district court’s decision without a COA.
See Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); Clark v. Oklahoma, 468
F.3d 711, 713 (10th Cir. 2006). To obtain a COA, Mr. Whitmore must make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C.
-7-
§ 2253(c)(2). “To make such a showing, an applicant must demonstrate ‘that
reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” Harris v.
Dinwiddie, 642 F.3d 902, 906 (10th Cir. 2011) (quoting Slack v. McDaniel, 529
U.S. 473, 484 (2000)).
Mr. Whitmore does nothing more in his application for a COA than recite
the procedural history and then press a point he barely presented in his habeas
petition below—i.e., that he was a member (he says a Board Member) of an
organization called “T.A.S.K. (Teaching and Saving Kids) . . . a pilot program . . .
[i]mplemented by the Warden. . . . The main purpose [of T.A.S.K.] at the time in
question was to stop the gang/racial violence that had become rampant in the
D.O.C.” Appellant’s Op. Br. and App. for COA at 2. He further claims now that
he “was acting up under the guise or authorization of this pilot program” such that
he “is pleading an ‘actual innocence’ claim, as one would that was charged with
an ass[a]ult and battery, but was only defending his person. The required intent
to cause bodily harm is missing.” Id.
The district court observed that, “[b]ecause prison disciplinary proceedings
‘are not part of a criminal prosecution,’ inmates are not entitled to the full extent
of the due process rights due to defendants in criminal prosecutions.” Supp.
Report & Recommendation at 6 (quoting Wolff v. McDonnell, 418 U.S. 539, 556
-8-
(1974)), R. Vol. 1 at 94. The court then properly analyzed the evidence presented
in light of the standard for determining when the requirements of due process
have been satisfied in prison disciplinary proceedings which may, as did Mr.
Whitmore’s, result in the loss of earned credits. Thus, the court considered
“‘whether the three steps mandated by Wolff were followed and whether there
was some evidence to support the disciplinary [hearing officer’s] findings.’” Id.
at 95 (quoting Mitchell v. Maynard, 80 F.3d 1433, 1445 (10th Cir. 1996)).
The district court carefully and fully explained why Mr. Whitmore’s
petition did not merit relief. Reasonable jurists could not dispute the propriety of
the court’s analysis and conclusions.
CONCLUSION
For the foregoing reasons, we DENY Mr. Whitmore a COA and DISMISS
this matter.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
-9-
Whitmore v. Dowling
Court: Court of Appeals for the Tenth Circuit
Date filed: 2013-10-23
Citations: 543 F. App'x 781
Copy Citations