F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
March 16, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JAMES C. MOORE,
Petitioner-Appellant, No. 05-6277
v. (D.C. No. 04-CV-1735-F)
HASKELL HIGGINS, Warden, (W.D. Okla.)
Respondent-Appellee.
ORDER
Before KELLY, McKAY, and LUCERO, Circuit Judges.
Petitioner, a state prisoner appearing pro se, filed this action seeking a writ
of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner is currently in the
custody of the Oklahoma Department of Corrections. He challenged the result of
a prison disciplinary hearing at which he was found guilty of Group Disruptive
Behavior. Because of the disciplinary action, Petitioner lost 365 days of earned
credit and was reassigned to a more restrictive incarceration level. Petitioner
contends that the prison officials failed to provide evidence to support the
conviction, that the prison authorities violated his First Amendment right to
freedom of speech by punishing him for voicing his opinion, that his due process
rights were violated when he was denied a staff representative to assist with the
preparation of his defense, and that he was denied access to the courts when he
was placed in segregation without access to legal materials. The magistrate judge
recommended that Petitioner’s habeas petition be denied and that his First
Amendment claim be dismissed without prejudice because it would properly be
raised in a civil rights action under 28 U.S.C. § 1983. After consideration of
Petitioner’s objections, the district court adopted the magistrate judge’s
recommendation, and Petitioner now appeals from the district court’s order.
The magistrate judge acknowledged that Petitioner was entitled to due
process protection in his prison disciplinary proceeding. See Report and
Recommendation, 3 (W.D. Okla. July 20, 2005). However, the magistrate judge
reasoned that the evidence presented supported Petitioner’s conviction: “In this
case, the finding of guilt was based on statement by two reporting officers who
reported that the inmate population became restless after Petitioner challenged the
first reporting officer in a loud voice regarding whether the inmates would be
served breakfast before they had to report to work.” Id. at 4.
As to Petitioner’s claims that he was not granted access to legal material
while in segregation and that no counsel was appointed to assist him in
preparation of his defense, the magistrate judge did not determine that due
process had been violated. “In [Wolff v. McDonnell, 418 U.S. 539, 570 (1974)],
however, the Court refused to find that prisoners have the right to counsel in
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prison disciplinary proceedings . . . . Under the circumstances in this case,
Petitioner received the due process he was due.” Id. at 5-6 (internal citations
omitted).
The district court adopted the recommendations of the magistrate judge in
an order of August 11, 2005. The district court also issued an order denying a
certificate of appealability on August 29, 2005. The issues Petitioner raises on
appeal are identical to those brought before the district court.
To grant a certificate of appealability, Petitioner must make a “substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (1994).
To meet this burden, Petitioner must demonstrate “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) (quotation omitted).
We have carefully reviewed Petitioner’s brief, the district court’s
disposition, the magistrate judge’s recommendation, and the record on appeal.
Nothing in the facts, the record on appeal, or Petitioner’s filing raises an issue
which meets our standard for the grant of a certificate of appealability. For
substantially the same reasons set forth by the magistrate judge and adopted by
the district court in its orders of August 11 and 29, 2005, we cannot say “that
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reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner.” Id.
We DENY Petitioner’s request for a certificate of appealability and
DISMISS the appeal.
Entered for the Court
Monroe G. McKay
Circuit Judge
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