Wilson v. Jones

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
December 7, 2005
UNITED STATES COURT OF APPEALS
Clerk of Court
TENTH CIRCUIT

LARRY WILSON,

Petitioner-Appellant,
No. 02-6384
v.
JUSTIN JONES, Director of the
Oklahoma Department of
Corrections; ATTORNEY
GENERAL OF THE STATE OF
OKLAHOMA,

Respondents-Appellees. *

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CIV-02-0301-F)

Vicki Mandell-King, Assistant Federal Public Defender (Raymond P. Moore,
Federal Public Defender, and Howard A. Pincus, Assistant Federal Public
Defender, on the briefs), for Petitioner-Appellant.

Larry Wilson filed a brief pro se.

*
Pursuant to F ED .R.A PP .P. 43(c)(2), Justin Jones, Ron Ward’s successor at
the Oklahoma Department of Corrections, has been automatically substituted as a
party in this appeal.
Keeley L. Harris, Assistant Attorney General (W. A. Drew Edmondson, Attorney
General of Oklahoma, and Kellye Bates, Assistant Attorney General, with her on
the briefs), for Respondents-Appellees.

Before HENRY, HOLLOWAY, and LUCERO, Circuit Judges.

HENRY, Circuit Judge.

Larry Wilson, an Oklahoma State inmate incarcerated at the Great Plains

Correctional Facility, appeals the district court’s denial of his petition for a writ

of habeas corpus brought pursuant to 28 U.S.C. § 2241. Mr. Wilson alleges that

his due process rights were violated when a Class X misconduct conviction

caused him to be demoted from a credit-earning prisoner to a non-credit-earning

prisoner because no evidence supported the misconduct conviction. We agree

with Mr. Wilson, and reverse and remand for issuance of the writ.

I. BACKGROUND

Mr. Wilson’s problem began with what seems an innocuous or even

laudable action: he attempted to use his mandatory savings account to pay for the

costs associated with copying the court documents he needed to pursue a post-

conviction proceeding. Because of that attempt, he was charged with violating

Oklahoma law, subjected to prison disciplinary proceedings, and convicted of a

2
Class X misconduct. The Class X misconduct conviction triggered two automatic

and mandatory consequences. First, Mr. Wilson was demoted from a class-level-

four prisoner, earning 44 credits each month toward early release, to a class-level-

one prisoner, ineligible to earn any credits. Second, the Class X misconduct made

him ineligible for promotion beyond level two, where he could earn only 22

credits each month, for a period of two years. To understand fully the misconduct

conviction and its effects on Mr. Wilson, first we examine the Oklahoma law he

was accused of violating, the details of the misconduct conviction and its

consequences, and how those consequences led to Mr. Wilson’s petition in this

court.

A. Oklahoma Law Regarding Use of Mandatory Savings Accounts

Prisoners in Oklahoma are required to keep a mandatory savings account, in

which they must deposit twenty percent of the wages they earn from prison

employment. They may only access the account to pay “fees or costs in filing a

civil or criminal action as defined in Section 151 et seq. of Title 28 of the

Oklahoma Statutes.” O KLA . S TAT . tit. 57, § 549(A)(5) (2004). Section 151(A), in

turn, provides that district court clerks shall “charge and collect the fees imposed

by this title, [and] fines, costs and assessments imposed by the district court or

appellant courts.” O KLA . S TAT . tit. 28, § 151(A) (2004). Our court has recently

concluded that Oklahoma inmates can use mandatory savings accounts to pay any

3
fee, fine, cost or assessment imposed by any section of Title 28 of the Oklahoma

Statutes. Included under Title 28 and payable by a mandatory savings account are

“photocopy charges imposed by a court clerk for obtaining official records and

transcripts.” Gamble v. Calbone, 375 F.3d 1021, 1029 (10th Cir. 2004) (citing

O KLA . S TAT . tit. 28, § 31).

Despite the broad sweep of section 151(A) and the inclusion of copying

costs in Title 28, when Mr. Wilson followed the usual procedures and requested,

in writing from the proper prison authorities, the release of $170 from his

mandatory savings account to pay for copies of proceedings in his criminal

conviction for use in his post-conviction appeal, the private prison officials

charged him with a Class X misconduct. Any violation of city, state, or federal

law constitutes a Class X misconduct, “the most serious class of prison

misconduct.” Gamble, 375 F.3d at 1025 n.4; Okla. Dep’t of Corr. (DOC) Policy

OP-060125, Attachment A. Here, prison officials accused Mr. Wilson of

violating Okla. Stat. tit. 21, § 1541.1, which prohibits obtaining money under

false pretenses. The only evidence for the charge was the written form Mr.

Wilson had submitted to prison officials. On the form, he requested payment

from his account “to attain transcripts and court documents from Murray County

Court Clerk.” Rec. vol. I, doc. 2, Ex. B (Request to Staff, Oct. 9, 2001).

4
B. Misconduct Conviction and its Consequences

After a hearing, prison officials determined that Mr. Wilson had violated

section 1541.1 and punished him by (1) revoking 180 of his earned credits and (2)

imposing thirty days’ disciplinary segregation. For reasons unclear on this record,

Mr. Wilson’s punishments were immediately suspended for 90 days. The State

represented in its supplemental brief that, because the 90 days expired without

incident, “the 180 credits can never be revoked.” Aples’ Supl. Br. at 3 (Mar. 14,

2005).

Pursuant to DOC policy, any Class X misconduct conviction triggers

certain “[m]andatory sanctions [that] cannot be suspended.” Okla. DOC Policy

OP-060125(IV)(E) (emphasis added). Here, the Class X misconduct conviction

resulted in Mr. Wilson’s mandatory reclassification from a class-level-four

prisoner to a class-level-one prisoner, as required by the Oklahoma DOC’s

prisoner classification procedures. Okla. DOC Policy OP-060107(I)(C)(2)(a)(5)

(stating that “[l]evel I assignment is mandatory . . . [u]pon conviction for any

misconduct, effective the date of the misconduct”). While a class-level-four

prisoner, Mr. Wilson automatically earned 44 credits per month toward early

release, but as a class-level-one prisoner, Mr. Wilson was statutorily ineligible to

earn any credits. O KLA . S TAT . tit. 57, § 138(D)(2).

Mr. Wilson was required to spend thirty days at level one. Okla. DOC

5
Policy OP-060107(I)(C)(6). After that time, Mr. Wilson was promoted to level

two, where he remained for one year until he received another misconduct

conviction. Rec. vol. 1, doc. 10, Ex. A (Aples’ Resp. to Pet., filed May 7, 2002);

Aples’ Supl. Br., Ex. D.

Prisoners are automatically assigned to level two upon reception into the

prison system. Okla. DOC Policy OP-060107(I)(C)(2)(b). Ordinarily, an

adjustment review committee of at least three prison officials reviews an inmate’s

classification at least once every four months to determine whether a change in

classification is necessary because a prisoner has met (or failed to meet) certain

statutory criteria. O KLA . S TAT . tit. 57, § 138(F). The statutory classification

system provides for classification between levels one and four depending on the

factors listed in the statute, some of which are objective, such as the length of

incarceration, and some of which require an exercise of prison officials’

subjective judgment and discretion, such as whether a prisoner’s hygiene has been

“outstanding” or merely “good.” See id. § 138(D)(3)&(4). Once a prisoner is

classified at a particular level, the prisoner is statutorily entitled to earn a

specified number of credits. Id. Regardless of whether Mr. Wilson continued to

meet the statutory criteria for promotion to levels three or four, the Class X

conviction caused Mr. Wilson to become ineligible for promotion beyond class

level two for a period of two years. Okla. DOC Policy OP-060107(I)(C)(2)(c) &

6
(d); Okla. DOC Policy OP-060103(a)(M).

C. Procedural History

As a result of the misconduct conviction and its automatic, mandatory

consequences, Mr. Wilson filed a pro se petition for a writ of habeas corpus under

28 U.S.C. § 2241 to challenge the misconduct conviction. He contends that the

misconduct conviction violated his due process rights because it was unsupported

by evidence. The magistrate judge recommended that Mr. Wilson’s petition be

denied because (1) Mr. Wilson never actually lost any earned credits, and (2) the

demotion in class level did not implicate a constitutionally protected “liberty

interest sufficient to invoke the procedural protections of the due process clause.”

Rec. vol. I, doc. 12, at 4 (Rep. & Rec., filed May 7, 2002). The district court

adopted the magistrate judge’s recommendation without further opinion. Mr.

Wilson then filed an application for a certificate of appealability (COA). See 28

U.S.C. § 2253. In 2003, we granted Mr. Wilson’s application for a COA on three

issues: (1) whether Mr. Wilson properly exhausted his state-court remedies; (2)

whether his reclassification deprived him of a constitutionally protected liberty

interest; and (3) if so, whether the reclassification violated his due process rights

because there was insufficient evidence to prove his alleged misconduct.

Subsequent to the district court’s decision, this court, in Gamble v.

Calbone, granted habeas relief to two prisoners from the same prison as Mr.

7
Wilson, who had also been convicted of the same Class X misconduct based on

the same “evidence” as Mr. Wilson. 375 F.3d 1021 (10th Cir. 2004). We ordered

that the State provide additional briefing in light of Gamble on the issue of

whether Mr. Wilson’s suspended punishment could ever be reinstated. After

receipt of the supplemental brief, we ordered oral argument and the appointment

of a federal public defender to represent Mr. Wilson.

.

II. DISCUSSION

The Fourteenth Amendment prohibits states from depriving citizens of

liberty without due process of law. Although their due process rights are defined

more narrowly, that guarantee applies to prisoners as well. Thus, in Sandin v.

Conner, 515 U.S. 472, 484, 487 (1995), the Supreme Court concluded that a

prisoner is entitled to due process before he is subjected to conditions that

“impose atypical and significant hardship on the inmate in relation to the ordinary

incidents of prison life,” or disciplinary actions that “inevitably affect the

duration of his sentence. See also Talley v. Hesse, 91 F.3d 1411, 1414 (10th Cir.

1996) (discussing these two ways of establishing a liberty interest under Sandin).

As a general rule, before officials may take actions that affect these

protected liberty interests, they must afford a prisoner (a) advance written notice

8
of the charges; (b) an opportunity, when consistent with institutional safety and

correctional goals, to call witnesses and present documentary evidence in his

defense; and (c) a written statement by the factfinder of the evidence relied upon

on and the reasons for the disciplinary action. Superintendent, Mass. Corr. Inst.

at Walpole v. Hill, 472 U.S. 445, 454 (1985). In addition, the decision must be

supported by some evidence. Id.

In this appeal, Mr. Wilson contends that: (a) requiring state-court

exhaustion in this type of habeas appeal is futile; (b) his Class X misconduct

conviction inevitably affected the length of his sentence and thus infringed a

liberty interest; and (c) no evidence supported that conviction. As a result, he

concludes, prison officials violated his due process rights. Each of these issues

involves questions of law, and our review is thus de novo. See Gamble, 375 F.3d

at 1027 (sufficiency of the evidence); Miller v. Menghini, 213 F.3d 1244, 1246

(10th Cir. 2000) (exhaustion); Harper v. Young, 64 F.3d 563, 566 (10th Cir. 1995)

(existence of a liberty interest). For the reasons set forth below, we are persuaded

by Mr. Wilson’s arguments as to all three issues.

A. Exhaustion of Remedies

A habeas petitioner seeking relief under 28 U.S.C. § 2241 is generally

required to exhaust state remedies. Montez v. McKinna, 208 F.3d 862, 865 (10th

9
Cir. 2000). However, that requirement is not applicable when the prisoner has no

adequate remedy such that exhaustion would be futile. Gamble, 375 F.3d at 1026.

In Gamble, we explained that a prisoner “seeking speedier . . . release due

to alleged errors in calculating earned or good-time credits does not have an

adequate habeas remedy under Oklahoma law, and that requiring state exhaustion

would be futile.” Id. at 1026 (citing Wallace v. Cody, 951 F.2d 1170, 1172 (10th

Cir. 1991)). Moreover, prisoners in Oklahoma cannot file a direct judicial appeal

to the state courts challenging a disciplinary board decision regarding their

earned-credit status. Id. (citing Canady v. Reynolds, 880 P.2d 391, 396-97 & n.4

(Okla. Crim. App. 1994)). As a result, we concluded that the prisoners there were

not required to seek relief in state court, and we therefore proceeded to the merits

of their due process claims.

Here, the State conceded during oral argument that Mr. Wilson has

exhausted his administrative remedies, and in its briefs, argued only that Mr.

Wilson had not exhausted his state-court remedies. Because of our holding in

Gamble that requiring state exhaustion is “futile,” Mr. Wilson has satisfied all

exhaustion requirements associated with this type of habeas claim and his petition

is properly before this court. Therefore, we proceed to the merits of his due

process claim.

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 B. Liberty Interest

Invoking Sandin, Mr. Wilson argues that his Class X misconduct conviction

“inevitably affect[ed] the duration of [his] sentence,” 515 U.S. at 487, and thus

implicated a liberty interest. He reasons that the conviction mandatorily reduced

the rate at which he earned good time credits, and argues that this impact was

sufficient for this court to grant relief in Gamble. In response, the State contends

that despite Mr. Wilson’s improper Class X misconduct conviction, prison

officials retained discretion to change his classification—and the resulting rate at

which he would earn good time credits. According to the State, that discretion

demonstrates that the effect of the Class X misconduct conviction was not

inevitable and that, as a result, no liberty interest was implicated. Resolution of

this issue requires an examination of Sandin, subsequent decisions applying it,

and other Tenth Circuit due process cases.

1. Sandin

Sandin involved an inmate from Hawaii’s state prison who alleged that two

misconduct convictions violated his due process rights. 515 U.S. at 475-76. He

was convicted of one “high misconduct” and one “low moderate misconduct,” and

the high misconduct charge was later reversed and expunged from his record. Id.

at 475-76, 487 n.10. The Court noted that the Hawaii parole board was not

11
required to deny parole as a result of the misconduct charges: “even though

misconduct is by regulation a relevant consideration, . . . [t]he decision to release

a prisoner rests on a myriad of considerations.” Id. at 487. Therefore, the Court

reasoned, the misconduct conviction did not inevitably affect the duration of the

prisoner’s sentence: “[t]he chance that a finding of misconduct will alter the

balance is simply too attenuated to invoke the procedural guarantees of the Due

Process Clause.” Id. The Court implied that if the parole board had been

required to take particular actions as a result of the misconduct charge, its

decision might have been different: “we note that Hawaii expunged [the inmate’s]

record with respect to the ‘high misconduct’ charge, so he personally has no

chance of receiving a delayed release as a direct result of that allegation.” Id. at

487 n.10.

As the Fifth Circuit has noted, “a host of administrative or disciplinary

decisions made by prison authorities might somehow affect the timing of a

prisoner’s release.” See Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995).

However, many of these decisions do not trigger the protections of the due

process clause. For example, applying Sandin, a number of courts have

concluded that a decision that a particular prisoner is ineligible to participate in

certain programs does not implicate a protected liberty interest, even though

participation in those programs would have provided him with an opportunity to

12
earn good time credits at a higher rate. In these courts’ view, the effect of the

challenged decisions on the length of the prisoner’s sentence is “too attenuated”

to implicate a liberty interest. See, e.g, Zimmerman v. Tribble, 226 F.3d 568,

571-72 (7th Cir. 2000) (holding that a prisoner’s transfer to a facility that did not

offer vocational training and substance abuse programs did not implicate a liberty

interest, even though the transfer resulting in the loss of an opportunity to earn

good time credits); Higgason v. Farley, 83 F.3d 807, 809-10 (7th Cir. 1996)

(holding that a prisoner’s placement in segregation, which resulted in the loss of

access to educational programs and the resulting opportunity to earn good time

credits did not implicate liberty interest, reasoning that “even if [the prisoner”]

has been given the opportunity, it was not inevitable that he would complete an

educational program and earn good time credits”); Bulger v. U.S. Bureau of

Prisons, 65 F.3d 48, 50 (5th Cir. 1995) (holding that the loss of a prison job did

not implicate a prisoner’s liberty interest even though the prisoner lost the ability

to automatically accrue good-time credits).

2. Tenth Circuit Decisions

This circuit has indicated that the connection between a disciplinary

decision and the length of a prisoner’s sentence may be sufficient to establish a

liberty interest when the prisoner establishes that the decision was the only factor

13
that lengthened the sentence. See Reed v. McKune, 298 F.3d 946, 954 (10th Cir.

2002) (noting that, under Sandin, “deprivations of process impacting on parole

decisions may be ‘too attenuated to invoke the procedural guarantees of the Due

Process Clause,’” but that “[petitioner’s] claim that he is being denied parole

solely on the basis of his failure to participate in [a treatment program] is not so

attenuated” and that, as a result, the petitioner “might, therefore, potentially state

a due process violation”) (quoting Sandin, 515 U.S. at 487) (emphasis added).

We have also held that there are circumstances in which the reduction of

the rate at which a prisoner earns good time credits may trigger due process

protections. For example, in Chambers v. Colorado Dep’t of Corrections, 205

F.3d 1237, 1242 (10th. Cir. 2000), Colorado prison officials classified the

petitioner as a sex offender for five years but then reduced the rate at which he

earned good time credits after he refused to participate in a treatment program.

We concluded that “[prison officials] provided [the petitioner] [with] a liberty

interest in the consequences of the mandatory label which they then arbitrarily

removed without affording him any opportunity to a hearing to challenge the

label.” Id. at 1243 (emphasis deleted). We characterized “the consequences of the

[sex offender] label,” (i e., the opportunity to earn good time credits at a higher

rate) as “a benefit that cannot be taken away without some process.” Id.

In Gamble we found due process protections implicated in circumstances

14
closely resembling the facts here. The petitioners, both inmates from the Great

Plains Correctional Facility, had attempted to use their mandatory savings

accounts to pay for costs associated with the appeals of their criminal convictions.

Gamble, 375 F.3d at 1032. Like Mr. Wilson, the petitioners had been convicted

of a Class X law violation, “[o]btaining money under false pretenses,” and the

only evidence against each of them was a copy of the inmates’ check requests.

See id. at 1024-25. Unlike Mr. Wilson, neither of the Gamble inmates’

punishments was suspended and both inmates lost earned credits as a result of the

misconduct conviction. However, one of the petitioners had additionally

complained that the misconduct conviction resulted in his demotion from level

four to level one. Id. at 1025.

We concluded that the Class X violation was supported by no evidence and

that, as a result, the petitioners’ due process rights had been violated. See id. at

1031-32. Significantly, as a remedy for this due process violation, we directed

prison officials to reverse the misconduct convictions, expunge the convictions

from the petitioners’ records, restore all earned credits that had been revoked, and

restore “their former statuses in earning credits.” Id. at 1032.

In Gamble, we did not discuss whether the revocation of earned credits or

the reduction in credit-earning status (from level four to level one) implicated the

petitioners’ liberty interests. “It is well settled” that an inmate must be afforded

15
due process prior to the revocation of his earned credits. Mitchell v. Maynard, 80

F.3d 1433, 1444 (10th Cir. 1996). Mr. Wilson contends that, because we

additionally restored the prisoners’ pre-misconduct classification statuses in

Gamble, we implicitly held that a prisoner’s mandatory classification demotion

constitutes a liberty deprivation. Although we disagree with Mr. Wilson’s

characterization of our holding in Gamble, we believe that the remedy we granted

does assist our analysis of Mr. Wilson’s claim under Sandin. Given that the

Gamble prisoners filed a § 2241 habeas petition, our restoration of credit-earning

status suggests that a demotion resulting from a misconduct conviction has a

direct, unattenuated impact on the duration of a prisoner’s confinement. See 28

U.S.C. § 2241(c)(3) (“The writ of habeas corpus shall not extend to a prisoner

unless . . . [h]e is in custody in violation of the Constitution or laws or treaties of

the United States”); see also McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812

(10th Cir. 1997) (explaining that a habeas petition under § 2241 may be granted

only if the challenged state action “affect[ed] the . . . duration of the petitioner’s

custody”).

3. Mr. Wilson’s Misconduct Conviction

Upon review of Mr. Wilson’s Class X misconduct conviction, we now

expressly adopt the conclusion that Gamble suggests and Sandin requires: the

16
misconduct conviction infringed a liberty interest because it reduced his credit

earning class in a manner that “inevitably affect[ed] the duration of his sentence.

Sandin, 515 U.S. at 487. As we have noted, as a direct result of the Class X

misconduct conviction, Mr. Wilson was automatically demoted from a level-four

credit earning classification to level one. Moreover, Oklahoma DOC policy

prohibited Mr. Wilson from being considered for promotion beyond level two for

a period of two years. Prison officials exercised absolutely no discretion over the

imposition of these two punishments and had no discretion to allow Mr. Wilson to

avoid them. Okla. DOC Policies OP-060107(I)(C)(2)(a)(5); OP-

060107(I)(C)(2)(c) & (d); OP-060103(a)(M). Thus, Mr. Wilson lost more than a

mere opportunity to earn credits upon satisfactory completion of a job or program

in the future. See Zimmerman v. Tribble, 226 F.3d at 571-72; Higgason, 83 F.3d

at 809-10; Bulger, 65 F.3d at 50.

That lack of discretion contrasts markedly with the discretionary effect on

the prisoner’s chances of parole in Sandin, where the disciplinary infraction was

only one of “a myriad of considerations,” 515 U.S. at 487, that could affect

whether the prisoner received an early release. In Mr. Wilson’s case, the only

consideration in his demotion and prevention from promotion was the misconduct

conviction. These effects were not the result of prison officials’ discretion after

they considered a number of factors; rather they occurred solely, automatically,

17
and mandatorily because of the misconduct conviction. This “but for” causation

is the kind of “direct result” that Sandin requires for a disciplinary action to have

an inevitable effect on a sentence. See 515 U.S. at 487 n.10.

We find additional support for this conclusion in the Seventh Circuit’s

opinion in Montgomery v. Anderson, 262 F.3d 641 (7th Cir. 2001). There, the

Seventh Circuit held that Indiana prisoners are deprived of liberty when demoted

to a lower credit-earning status. The court cited Supreme Court decisions holding

that prisoners may have a liberty interest in the expectation of parole where the

parole boards’ discretion is limited by mandatory language in a statute or a

regulation. Writing for the panel, Judge Easterbrook analogized the opportunity

to earn credits toward early release to those parole cases, noting that “[a] hope to

be released before the expiration of one’s term on good-time credits is no

different in principle from a hope to be released on parole.” Id. at 645. Judge

Easterbrook examined the statute at issue and noted that it required prisoners to

be assigned to a credit-earning class unless certain events occurred, thus

“curtail[ing] administrators’ discretion and . . . giv[ing] prisoners more than a

subjective hope of receiving day-for-day credit.” Id. The impact of a demotion in

class level on the prisoner’s sentence was directly traceable and clearly evident:

but for the demotion, the prisoner would have continued to earn credits. See id.

Thus, the Indiana statute created a liberty interest.

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4. The State’s Arguments

In maintaining that Mr. Wilson’s conviction did not implicate a liberty

interest, the State advances several arguments. We find none of them persuasive.

First, the State notes that prison officials have discretion to change an

inmate’s classification status. It contends that prison officials could have used

that discretion to change Mr. Wilson’s classification at any time and that, as a

result, the misconduct conviction did not inevitably affect his sentence. In our

view, the State ignores the fact that Mr. Wilson’s conviction resulted in a

mandatory change in credit-earning status. In light of that mandatory effect, the

fact that prison officials have discretion to change a prisoner’s classification when

considering other conduct is irrelevant. As Judge Easterbrook observed in

Montgomery, states have been held to create liberty interests in the expectation of

early release even where the statute at issue “afforded plenty of discretion” to

prison administrators. Id.; see also Bd. of Pardons v. Allen, 482 U.S. 369, 375-76

(1987) (explaining that an official “has discretion if his duty is defined by

standards that reasonable [people] can interpret in different ways” and that “the

presence of official discretion in this sense is not incompatible with the existence

of a liberty interest in parole release when release is required after the Board

determines (in its broad discretion) that the necessary prerequisites exist”)

19
(quotation marks omitted) (alteration in original).

The State also directs us to a number of unpublished cases in this circuit

that are somewhat similar to Mr. Wilson’s case, although all but one pre-date

Gamble. Those cases generally hold that a demotion in classification status does

not necessarily implicate a liberty interest. Although we are not bound by these

unpublished orders, we believe that they are distinguishable from the present

case.

In Hudson v. Ward, the one post-Gamble case that the State cites, the

classification demotion did not occur mandatorily as a result of a misconduct

conviction but rather resulted from an ordinary exercise of prison officials’

discretion. 124 F.App’x 599, 601-02 (10th Cir. Feb. 14, 2005) (unpublished); see

also Smith v. Okla. Dep’t of Corr., 98 F.3d 1350 (10th Cir. Oct. 8, 1996)

(unpublished) (holding that a loss of job for unsatisfactory performance, which

resulted in a demotion in credit-earning status, does not implicate a liberty

interest); Brown v. Champion, 61 F.3d 915 (10th Cir. July 24, 1995)

(unpublished) (stating that the reclassification that resulted from a misconduct

conviction was “entirely discretionary with prison officials”). Davis v. Ward

presents a situation that is much like Mr. Wilson’s case, but Davis was a pre-

Gamble decision that could not take into account the published opinion’s decision

to restore prisoners’ former credit-earning statuses, nor did it consider the

20
mandatory character of the prison regulation that removes discretion from prison

officials. 1 92 F.App’x 634, 635-36 (10th Cir. Feb. 9, 2004) (unpublished).

Finally, the State urges us to follow Templeman v. Gunter, 16 F.3d 367

(10th Cir. 1994), a published case that the magistrate judge cited in her

recommendation that Mr. Wilson did not suffer a liberty deprivation. Templeman

analyzed Colorado law and held that when a prisoner was transferred to

administrative segregation, he was not deprived of a liberty interest because the

regulation governing such a transfer stated that transfer was within “the sound

exercise of discretion by the classification officer.” Id. at 369. The prison

regulation listed a few factors officials should consider prior to transfer, but

specified that “the list is not exhaustive and includes any other reasons of similar

magnitude deemed sufficient.” Id. (citation and quotation omitted). Again,

because prison officials had the discretion to reclassify the prisoner into

administrative segregation, and “[o]nce there, Templeman did not meet the

criteria for receiving earned time,” the prisoner was not deprived of a liberty

interest. Id. at 370.

1
Another unpublished decision not cited by the State implied that
Gamble’s remedy should impact an analysis of whether a reclassification that
results from an improper misconduct conviction deprives a prisoner of a liberty
interest. See Cook v. Ward, 122 F.App’x. 935, 937 n.5 (10th Cir. Dec. 14, 2004)
(unpublished) (instructing prisoner to seek “administrative relief with respect to
retroactive reinstatement of level 4 credits” and noting that “in Gamble . . . this
court awarded a full restoration of benefits upon a finding of the denial of due
process and no evidence to support misconduct convictions”).

21
 Templeman is significantly different from the instant case in several

respects. First, Templeman analyzed an entirely different set of regulations than

those that Oklahoma prison officials use. Second, unlike in Colorado, where

officials had nearly unbridled discretion to transfer the prisoner, Oklahoma’s

prison officials must follow statutory and regulatory criteria when deciding

whether to reclassify a prisoner. Finally, this court in Templeman relied upon the

fact that the Colorado officials “reasonably concluded that inmates in

administrative segregation do not meet . . . the criteria for receiving earned time.”

Id. Certainly prison officials’ exercises of discretion should generally be

respected, as “federal courts ought to afford appropriate deference and flexibility

to state officials trying to manage a volatile environment.” Sandin, 515 U.S. at

482. Nonetheless, as we have repeatedly stressed, Mr. Wilson’s reclassification

did not occur because of an exercise of discretion, but rather was an automatic

and mandatory sanction resulting from an erroneous misconduct conviction.

Accordingly, following Sandin, and for the reasons reviewed above, we

hold that the Class X misconduct inevitably affected the duration of Mr. Wilson’s

sentence and therefore deprived him of a liberty interest. Because of this

deprivation, we now examine whether the underlying misconduct conviction

comported with due process

22
 C. Misconduct Conviction

The Supreme Court has instructed that, when reviewing a prison

disciplinary proceeding, courts should determine whether “any evidence in the

record . . . could support the conclusion reached by the disciplinary board.” Hill,

472 U.S. at 455-56. We applied this deferential standard of review in Gamble and

held that no evidence supported the petitioners’ misconduct convictions. After

examining section 1541.1, we concluded that, in order to affirm the misconduct

conviction for obtaining money by false pretenses under the “any evidence”

standard, “there must be evidence that the inmates attempted to obtain money by

means of a trick, deception, or false representation. It is necessary that they knew

it was a trick, deception, or false representation, and that they had the intent to

cheat and defraud.” Gamble, 375 F.3d at 1028.

The State has agreed that the decision in Gamble controls here and has

acknowledged that no evidence exists to support Mr. Wilson’s conviction. We

appreciate this concession and hope that, in light of Gamble and the instant

matter, the Oklahoma DOC will carefully oversee disciplinary proceedings and

review its policies for ambiguities and contradictions so that such clearly

problematic disciplinary actions are cured in an administrative setting, as they

should be. As we noted in Gamble, “[t]he inmates’ understanding that requesting

disbursement from their mandatory savings for the costs of obtaining their

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transcripts was a legal request is justified under Oklahoma case precedent and

legislative history.” Id. at 1030.

The Oklahoma DOC policy in effect in 2001 regarding the use of a

mandatory savings account was contradictory and confusing, especially in light of

the state legislature’s specific allowance for this one class of expenditures from

mandatory savings accounts. 2 Indeed, amendments that the state legislature made

in 1995, permitting inmates to use mandatory savings accounts for costs

associated with criminal cases and requiring courts to consider the availability of

a mandatory savings account prior to granting in forma pauperis, “‘compel[] a

prisoner to weigh the validity of a lawsuit against the cost of pursuing it.’” Id. at

1031 (quoting Smith v. Moore, 50 P.3d 215, 218 n.4 (Okla. 2002)). The

legislature’s policy makes good sense: it alleviates public subsidization of court

costs and deters prisoners from filing frivolous lawsuits, as they must use the

small amount of savings they would have upon release from prison to pay for

costs associated with their appeals. See id. Furthermore, “[i]t would make little

sense to allow savings account monies to be used to file a case and then forbid

their use to provide courts with materials useful in resolving that case.” Id. at

2
The policy stated correctly that “allowable fees are defined in O.S. 28,
Section 151 et seq” but later, narrowed the range of allowable fees by calling
them simply “filing fees,” implying that filing fees were the only acceptable costs
that could be paid from a mandatory savings account. Okla. DOC Policy OP-
120230.

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1033 (Henry, J., concurring).

Due process in a prison setting is very limited, but some safeguards remain

to ensure that the few rights prisoners do retain are not violated by prison

officials’ arbitrary exercise of their power. See Wolff v. McDonnell, 418 U.S. 539

(1974) (explaining that limited due process rights apply in a prison disciplinary

setting because “there must be mutual accommodation between institutional needs

and objectives and the provisions of the Constitution that are of general

application”). Among these safeguards is the requirement that disciplinary

convictions that mandatorily affect time served be supported by some evidence,

which is a minimal but nonetheless important standard.

III. CONCLUSION

We hold that the State’s action here deprived Mr. Wilson of a liberty

interest because the mandatory and automatic consequences of the Class X

misconduct conviction inevitably affected the duration of his sentence.

Therefore, Mr. Wilson’s due process rights were violated when he was convicted

of misconduct without any evidence. The misconduct conviction must be

reversed and expunged from his record, and his former status in earning credits

must be restored.

The judgement of the district court is REVERSED and this matter is

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REMANDED for issuance of the writ.

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