F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 11 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
CALVIN L. ALEXANDER,
Petitioner - Appellant,
v. No. 97-6318
RON WARD, (D.C. No. 97-CV-728-L)
(W.D. Okla.)
Respondent - Appellee.
ORDER AND JUDGMENT*
Before BALDOCK, EBEL, and MURPHY, Circuit Judges.**
Petitioner Calvin L. Alexander seeks a certificate of appealability to appeal the
district court’s decision denying his petition for a writ of habeas corpus filed pursuant to
28 U.S.C. § 2254. We conclude Petitioner has failed to make a substantial showing of the
denial of a constitutional right. Accordingly, we deny his request for a certificate of
*
This order and judgment is not binding precedent, except under the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 three-judge panel has
determined that oral argument would not be of material assistance in the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
appealability and dismiss the appeal.
Petitioner is an inmate at the Oklahoma State Penitentiary in McAlester,
Oklahoma. While incarcerated for another offense, Petitioner pled guilty to escaping
from the Penitentiary in violation of Oklahoma law. As a result, the court sentenced
Petitioner to five additional years imprisonment. Prior to pleading guilty to escape, prison
officials revoked his good time credits and fined him $15 for the same conduct in an
institutional disciplinary proceeding. Petitioner subsequently filed a § 2254 habeas
corpus petition. Petitioner alleged that his conviction for escape violated his
constitutional right to be free from double jeopardy because he was punished twice for the
same crime. Petitioner argued that his conviction for escape violated the double jeopardy
clause because prison officials revoked his good time credits and fined him $15 for the
same conduct. Therefore, Petitioner argued that his counsel rendered constitutionally
ineffective assistance by not raising the argument. Petitioner reiterates his arguments on
appeal.
Petitioner’s arguments are patently without merit. It is well settled that “[p]rison
disciplinary hearings are not part of a criminal prosecution, and therefore do not implicate
double jeopardy concerns.” Lucero v. Gunter, 17 F.3d 1347, 1351 (10th Cir. 1994).
Thus, the district court’s order denying Petitioner’s § 2254 petition for a writ of habeas
corpus is not debatable, reasonably subject to a different outcome on appeal, or otherwise
deserving of further proceedings. See Barefoot v. Estelle, 463 U.S. 880, 893 & n.4
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(1983). Because we conclude that Petitioner has not made a substantial showing of the
denial of a constitutional right, we DENY his request for a certificate of appealability and
DISMISS the appeal. Petitioner’s motion for leave to proceed in forma pauperis is
DENIED as moot.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
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