F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 24 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
FRED CRELEY,
Petitioner-Appellant,
v. No. 97-2310
TIM LEMASTER, Warden, New Mexico (D.C. No. CIV-97-1063-LH)
State Penitentiary, and ATTORNEY (D. N.M.)
GENERAL FOR THE
STATE OF NEW MEXICO,
Respondents-Appellees.
ORDER AND JUDGMENT*
Before BALDOCK, EBEL, and MURPHY, Circuit Judges.**
Petitioner Fred Creley, appearing pro se, appeals the district court’s dismissal of
his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court,
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and appellate record, this panel has determined
that oral argument would not materially assist the determination of this appeal. See Fed.
R. App. P. 34(a); 10th Cir. 34.1.9. The case is therefore ordered submitted without oral
argument.
pursuant to Rule 4, Rules Governing Habeas Corpus Cases Under § 2254, concluded that
the petitioner was not entitled to any relief and dismissed the petition with prejudice.1
Our jurisdiction arises under 28 U.S.C. § 2253.2 We review a Rule 4 dismissal de novo.
Hamburg v. Attorney General of the State of Wyoming, 1994 WL 413258 (10th Cir.
1994) (unpublished) . Applying this standard, we affirm.
Petitioner, who was apprehended after escaping from a New Mexico state prison,
was convicted of escape from custody. Petitioner was also subjected to prison
disciplinary proceedings because of the escape, resulting in the loss of his accrued good
time credits. On August 12, 1997, petitioner filed an application for a writ of habeas
corpus in the district court alleging that multiple punishments had been imposed for the
same offense in violation of the Double Jeopardy Clause of the Fifth Amendment. The
district court determined that Petitioner’s criminal conviction coupled with the prison
disciplinary action did not violate the Double Jeopardy Clause and dismissed the
complaint.
We have reviewed the parties’ briefs, pleadings and the entire record before us
and agree with the decision of the district court. Double jeopardy protections do not
apply to prison disciplinary proceedings. Lucero v. Gunter, 17 F.3d 1347, 1351 (10th Cir.
1
Rule 4 provides that a 28 U.S.C. § 2254 petition shall be dismissed “if it plainly
appears from the face of the petition and any exhibits annexed to it that the petitioner is
not entitled to relief in the district court....” Rules Governing Habeas Corpus Cases
Under § 2254.
2
We grant Petitioner’s request for issuance of a certificate of appealability.
2
1994). Furthermore, administrative punishment imposed by prison officials does not
render a subsequent criminal proceeding violative of double jeopardy. United States v.
Rising, 867 F.2d 1255, 1259 (10th Cir. 1989). Accordingly, the judgment of the district
court is
AFFIRMED.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
3