F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
March 6, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
DEMICHAEL MCCAULEY,
Petitioner - Appellant, No. 05-6319
v. (W.D. Oklahoma)
RON WARD, (D.C. No. 04-CV-1698-C)
Respondent - Appellee.
ORDER
Before TACHA, Chief Circuit Judge, HARTZ, and TYMKOVICH, Circuit
Judges.
Demichael McCauley, an Oklahoma state prisoner assigned to the
Oklahoma City Community Corrections Center (OKC/CCC), was found guilty of
escape in a disciplinary hearing on April 26, 2004. On December 14, 2004, he
filed in the United States District Court for the Western District of Oklahoma an
application for a writ of habeas corpus under 28 U.S.C. § 2241, arguing that the
disciplinary proceeding violated his due process rights. The district court,
following the recommendation of the magistrate judge, denied the application and
denied a certificate of appealability (COA), see 28 U.S.C. § 2253(c)(1) (requiring
COA); Montez v. McKinna, 208 F.3d 862, 869 (10th Cir. 2000) (COA required for
state prisoners seeking relief under § 2241). Mr. McCauley now seeks a COA
from this court. He also seeks leave to proceed in forma pauperis (IFP). We deny
a COA and IFP status.
I. BACKGROUND
On April 16, 2004, Mr. McCauley, who was assigned to the OKC/CCC, was
working at a facility in Oklahoma City referred to as “Property Distribution.”
Mr. McCauley’s supervisor was unable to locate him after the lunch break, and at
1:15 p.m. received a call informing him that Mr. McCauley was in the custody of
the Oklahoma City police. Mr. McCauley was charged with the offense of escape
by the Oklahoma Department of Corrections (DOC). He was provided a copy of
the offense report, the investigator’s report, the Oklahoma City police report, the
sign-out sheet for Property Distribution, and the Property Distribution incident
report. He was also advised of his rights in connection with the disciplinary
charge. At a hearing on April 26, 2004, Mr. McCauley was found guilty of
escape. Mr. McCauley appealed through the disciplinary system, but the
conviction was affirmed.
In his § 2241 application Mr. McCauley alleged three violations of his
procedural due process rights: (1) the notice he received of the charges against
him was too vague and ambiguous to afford due process; (2) he could be charged
with escape only if he was gone for more than 24 hours; and (3) no evidence
supported the charge of escape. The magistrate judge found that the “offense
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report clearly states that [he] was being charged with violation code 16-1, ‘escape
from the custody of the DOC,’” and explained that he had left work premises
when signed out to work at Property Distribution. R. Doc. 16 at 5 (internal
brackets omitted). He said that this notice satisfied the requirements of Wolff v.
McDonnell, 418 U.S. 539, 563-67 (1974).
The magistrate judge also rejected Mr. McCauley’s assertion that he could
not be charged with escape unless he was absent for more than 24 hours because
“the 24-hour absence from custody requirement as set forth in Okla. Stat. tit. 21, §
443(C) applies only to a criminal charge of felony escape under that section, a
separate issue from a prison disciplinary misconduct for escape.” R. Doc. 16 at 6
n.6. And with regard to Mr. McCauley’s claim that the charge of escape was not
supported by any evidence, the magistrate judge found that some evidence
supported Mr. McCauley’s disciplinary conviction. The incident reports showing
that Mr. McCauley “‘left the premises of confinement at his work location’” and
Mr. McCauley’s admission that “he left the premises where he was assigned to
work” were adequate to support the outcome of the disciplinary hearing. Id. at 8.
The district court affirmed the Report and Recommendation of the
magistrate judge and denied Mr. McCauley’s § 2241 application.
On appeal Mr. McCauley contends that his procedural due process rights
were violated when he was convicted of the disciplinary violation of escape
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although he had been absent less than 24 hours. He also appears to challenge the
use of the some-evidence standard in convicting him of the disciplinary charge.
Finally, he contends that he is entitled to an evidentiary hearing.
II. DISCUSSION
State prisoners filing for habeas relief under § 2241 must obtain a COA in
order to appeal the denial of their application. Montez, 208 F.3d at 869. A COA
will issue “only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a
demonstration that . . . includes showing that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in
a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(internal quotation marks omitted). In other words, the applicant must show that
the district court’s resolution of the constitutional claim was either “debatable or
wrong.” Id.
Mr. McCauley contends that his due process rights were violated when he
was charged with escape in the disciplinary hearing, because Okla. Stat. tit. 21,
§ 443(C) provides that an inmate assigned to an alternative to incarceration
cannot be charged with the felony of escape unless he is absent for more than 24
hours. But even assuming that he has properly construed § 443(C), the Oklahoma
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statute, as both the magistrate judge and district court correctly pointed out, deals
only with the felony crime of escape, and not with the definition of escape for
purposes of a disciplinary proceeding. Mr. McCauley has not directed us to any
prison regulation indicating that disciplinary charges for escape cannot be brought
unless a prisoner is absent more than 24 hours. This challenge therefore must
fail.
Mr. McCauley also appears to challenge the use of the some-evidence
standard in determining his guilt at the disciplinary proceedings. But the United
States Supreme Court has held that although prisoners retain due process rights
during disciplinary hearings, “[p]rison disciplinary proceedings are not part of a
criminal prosecution, and the full panoply of rights due a defendant in such
proceedings does not apply.” Wolff, 418 U.S. at 556. Due process is satisfied in
a prison disciplinary hearing if “some evidence” supports the decision.
Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455 (1985). Furthermore,
“[a]scertaining whether this standard is satisfied does not require examination of
the entire record, independent assessment of the credibility of witnesses, or
weighing of the evidence. Instead, the relevant question is whether there is any
evidence in the record that could support the conclusion reached by the
disciplinary board.” Id. at 455-56. That standard was met here.
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Finally, Mr. McCauley contends that he was entitled to an evidentiary
hearing in district court. But he has failed to point to any relevant factual issue
that could be illuminated at such a hearing.
In short, no reasonable jurist could determine that the district court erred in
denying Mr. McCauley’s due process claims. Moreover, because Mr. McCauley
has not shown "the existence of a reasoned, nonfrivolous argument on the law and
facts in support of the issues raised on appeal," we deny his application to
proceed IFP. See DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991).
We DENY Mr. McCauley’s application for a COA, DENY his request to
proceed IFP, and DISMISS the appeal.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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