F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 10 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
DAVID ROBIN WHITMORE,
Petitioner - Appellant,
No. 99-6015
v.
(D.C. No. 98-CV-464)
(Western District of Oklahoma)
STEVEN KAISER,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before BRORBY, EBEL and LUCERO, Circuit Judges.
Petitioner David Whitmore, an inmate within the Oklahoma state prison
system, seeks a certificate of appealability to appeal the district court’s denial of
his pro se 28 U.S.C. § 2254 habeas petition. Whitmore’s habeas petition stems
from a decision by the Oklahoma Department of Corrections to revoke 720 days
of earned credits as a sanction for Whitmore’s participation in a prison riot. The
district court denied Whitmore’s petition, which essentially consists of due
*
The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
process claims, finding that it is procedurally barred and lacks merit. Pursuant to
28 U.S.C. § 2253(c)(2), we deny a certificate of appealability.
Whitmore appears to argue that he was denied due process at his prison
disciplinary hearing and before the district court. Specifically, Whitmore asserts
that the hearing officer disregarded his evidence and disregarded applicable
procedural rules. See Wolff v. McDonnell, 418 U.S. 539, 563-66 (1974)
(identifying due process protections applicable to a prison disciplinary
proceeding). He claims that prison officials abused their discretion, acted with
bad faith and malice, lied when they accused him of this offense, and had
insufficient evidence to convict him. He asserts that a legal assistant lied in a
sworn affidavit submitted to the district court. Finally, he claims that the district
court improperly deprived him of an opportunity to prove his actual innocence,
denied various discovery and other motions, and held him to a stringent pleading
requirement.
We agree with the district court’s determination that Whitmore’s claims
concerning the process that he was afforded at the disciplinary hearing are
procedurally barred. Whitmore failed to provide the Oklahoma Court of Criminal
Appeals with certified records necessary to support his claim for relief in
violation of Rule 10.1(C) of the Rules of the Oklahoma Court of Criminal
Appeals. Accordingly, the Oklahoma Court of Criminal Appeals denied relief for
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Whitmore’s failure to comply with procedural rules. This is an independent and
adequate state ground that bars federal habeas review. See Coleman v.
Thompson, 501 U.S. 722, 750 (1991).
The district court correctly concluded that “[t]he Petitioner has not shown
that any objective, external factor impeded his efforts to comply with the state’s
procedural rules; thus, he has not met the cause and prejudice standard” for
overcoming this procedural bar. D. Mem. Op. at 5 (citing Coleman, 501 U.S. at
753). Whitmore is also unable to demonstrate the potential for a fundamental
miscarriage of justice so as to overcome the procedural bar, see Murray v. Carrier,
477 U.S. 478, 495-96 (1986), because he cannot prove his innocence of the
offense alleged. The fact that he was on the telephone until approximately 11:00
p.m. does not preclude him from having joined in the riot thereafter. Nor does
Whitmore’s telephone defense, plus his disputed assertion that the riot did not last
beyond 11:00 p.m., demonstrate his innocence.
Moreover, Whitmore’s claims lack merit. While Whitmore was entitled to
some due process at his prison disciplinary proceeding, see Mitchell v. Maynard,
80 F.3d 1433, 1444-45 (10th Cir. 1996), prison disciplinary proceedings do not
implicate the full range of due process rights that apply to a criminal prosecution.
Id. at 1445. Instead, the Constitution requires only that a prisoner receive
advance written notice of the charges against him, the right to call witnesses and
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present evidence if doing so does not jeopardize institutional safety or correction
goals, and a written statement of the evidence relied on and the reasons for the
disciplinary action. See Superintendent, Mass. Correctional Inst. v. Hill, 472 U.S.
445, 454 (1985). The revocation of good time credits requires only the support of
“some evidence in the record.” Id. Upon review of the record, we agree with the
magistrate’s conclusion, adopted by the district court, that Whitmore was afforded
all the process he was due.
We further reject Whitmore’s claim that his rights were somehow violated
by introduction into the record of an affidavit by legal assistant Johnanna
Oblesby. Respondents filed Oblesby’s affidavit in response to Whitmore’s
assertion that Oblesby told him that the warden knew he did not participate in the
riot. In her affidavit, Oblesby disputes making such a statement. Contrary to
Whitmore’s assertion, the district court sufficiently inquired into Whitmore’s
allegation regarding this statement by directing respondents to respond.
Moreover, the district court did not violate Whitmore’s constitutional rights by
crediting this affidavit rather than Whitmore’s allegation.
Whitmore’s suggestion that the district court violated his due process or
other rights in any other respect during these proceedings lacks merit. The
district court acted within its discretion when it adopted the magistrate’s
conclusion that Whitmore was afforded the procedural protections to which he is
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entitled. The district court did not violate Whitmore’s constitutional rights by
denying his discovery requests and other motions in light of its determination that
Whitmore’s claims are procedurally barred and lack merit. Nor does the record
support a conclusion that the district court held petitioner to an improperly
stringent pleading requirement.
We conclude that Whitmore has not made a substantial showing of the
denial of a constitutional right and deny a certificate of appealability. See 28
U.S.C. § 2253(c)(2); Barefoot v. Estelle, 463 U.S. 880 (1983); Fed. R. App. P. 22.
We deny leave to proceed in forma pauperis.
This appeal is DISMISSED. The mandate shall issue forthwith.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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