FILED
United States Court of Appeals
Tenth Circuit
April 13, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JAMES KELVIN COOPER,
Petitioner-Appellant,
v. No. 10-6003
JUSTIN JONES, Director (D.C. No. 09-CV-00410-HE)
(W.D. Okla.)
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before TACHA, BRISCOE, and O’BRIEN, Circuit Judges.
James Kelvin Cooper, a state prisoner proceeding pro se, requests a
certificate of appealability (COA) to appeal the district court’s order denying his
28 U.S.C. § 2241 1 petition for writ of habeas corpus. Cooper also seeks leave to
proceed in forma pauperis (IFP). We deny his request for a COA and IFP status,
and we dismiss this matter.
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
1
Although Cooper filed his petition on a form labeled § 2254, the district
court correctly recognized that the petition was pursuant to § 2241. See McIntosh
v. United States Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997) (§ 2241
petitions are used to challenge the execution of a sentence, including “deprivation
of good-time credits”).
I
Cooper is a state prisoner at the Lawton Correctional Facility in Lawton,
Oklahoma. On February 13, 2008, correctional officers found a cell phone in
Cooper’s cell, on his bed. On March 7, 2008, a disciplinary hearing was held.
The disciplinary hearing officer reviewed the misconduct report, and Cooper
presented written statements that the cell phone belonged to his cell mate,
including a declaration from his cell mate. The disciplinary hearing officer found
Cooper guilty of possession of a cell phone and revoked 365 earned credits
toward earlier release.
Cooper unsuccessfully appealed this disciplinary decision through the
prison administrative process, and Oklahoma State courts. He subsequently filed
this petition for habeas corpus in federal district court, arguing that he was
deprived of his right to due process. The magistrate judge recommended that the
petition be denied, and the district court adopted the recommendation and denied
the petition. The district court subsequently denied Cooper’s request for a COA
and denied his motion to proceed IFP.
II
State prisoners may appeal the denial of a § 2241 petition only if a COA is
issued. See 28 U.S.C. § 2253(c)(2); Montez v. McKinna, 208 F.3d 862, 869 (10th
Cir. 2000). A COA will issue only if Cooper makes “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order to make this
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showing, he must demonstrate that “reasonable jurists could debate whether . . .
the petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” See
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations omitted).
Cooper argues that he was denied his right to due process at the prison
disciplinary hearing.
Where a prison disciplinary hearing may result in the loss of good time
credits, . . . . [an] inmate must receive: (1) advance written notice of the
disciplinary charges; (2) an opportunity, when consistent with
institutional safety and correctional goals, to call witnesses and present
documentary evidence in his defense; and (3) a written statement by the
factfinder of the evidence relied on and the reasons for the disciplinary
action.
Superintendent, Mass. Corr. Inst., Walpole v. Hill 472 U.S. 445, 454 (1985).
Further, due process requires “some evidence in the record” supporting the
charge. Id. This requirement may be satisfied even if the supporting evidence is
“meager.” Id. at 457. After reviewing the record, we conclude that reasonable
jurists could not debate that these minimal procedural requirements were
satisfied.
Cooper contends that he provided evidence that the cell phone belonged to
his cell mate, and therefore, the disciplinary decision violated his right to due
process, citing Meeks v. McBride, 81 F.3d 717 (7th Cir. 1996). Cooper’s reliance
on Meeks is misplaced. In Meeks, the Seventh Circuit held that “where a prison
inmate produces exculpatory evidence that directly undermines the reliability of
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the evidence in the record pointing to his guilt, he is entitled to an explanation of
why the disciplinary board disregarded the exculpatory evidence and refused to
find it persuasive.” Id. at 720 (quotation and alterations omitted). In the case at
bar, however, Cooper’s exculpatory evidence does not undermine the reliability of
the incident report, i.e., the evidence relied upon by the disciplinary hearing
officer. Accordingly, Meeks is inapposite.
Additionally, Cooper argues that under the prison’s policy, he was
supposed to receive a copy of the prison’s incident report. However, because
Cooper first raised this issue in his objections to the magistrate judge’s report and
recommendation, that argument has been waived. See United States v. Garfinkle,
261 F.3d 1030, 1031 (10th Cir. 2001). Moreover, this argument fails to raise a
due process violation. Prison regulations are “primarily designed to guide
correctional officials in the administration of a prison. [They are] not designed to
confer rights on inmates.” Sandin v. Conner, 515 U.S. 472, 481–82 (1995). The
process due here is measured by the Due Process Clause of the United States
Constitution, not the internal policies of the prison. See Shakur v. Selsky, 391
F.3d 106, 119 (2d Cir. 2004) (“[R]egardless of state procedural guarantees, the
only process due an inmate is that minimal process guaranteed by the
Constitution.”); see also Brown v. Rios, 196 F. App’x 681, 683 (10th Cir. 2006)
(unpublished) (same). Cooper received all the process that he was due. See Hill
472 U.S. at 454–57.
4
Because Cooper has failed to make a substantial showing of the denial of a
constitutional right, we DENY his application for a COA. We also DENY his
request to proceed IFP, and DISMISS this matter.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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