FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
December 13, 2007
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
PATRICK JOSEPH TERRY,
Petitioner-Appellant, No. 07-6099
v. (D.C. No. 06–CV–840–F )
JUSTIN JONES; ATTORNEY (W.D. Okla. )
GENERAL OF THE STATE OF
OKLAHOMA,
Respondents-Appellees.
ORDER *
Before BRISCOE, McKAY, and McCONNELL, Circuit Judges.
Pro se petitioner Patrick Joseph Terry, an Oklahoma state inmate, seeks a
certificate of appealability to appeal the district court’s denial of his petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241. After a prison disciplinary
hearing, Petitioner was found guilty of possessing drugs not prescribed by
medical staff, which resulted in his losing 365 good time credits and affected his
classification level. The district court adopted the magistrate judge’s report and
recommendation and denied Petitioner’s habeas petition. The district court also
denied Petitioner’s application for a temporary restraining order. Petitioner now
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
brings this appeal seeking a certificate of appealability. 2
Petitioner must obtain a certificate of appealability to challenge the district
court’s denial of his habeas corpus petition. See Montez v. McKinna, 208 F.3d
862, 867 (10th Cir. 2000). To obtain a certificate of appealability, Petitioner
must make a “substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2) (2006). 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 issues presented
were adequate to deserve encouragement to proceed further.” Slack v. McDaniel,
529 U.S. 473, 484 (2000) (internal quotation marks omitted).
Prisoners possess a liberty interest in their statutorily provided good time
credits. See Wolff v. McDonnell, 418 U.S. 539, 557 (1974); see also Brown v.
Smith, 828 F.2d 1493, 1494 (10th Cir. 1987). The government may not deprive a
prisoner of those credits without due process. Id. However, “[p]rison
disciplinary proceedings are not part of a criminal prosecution, and the full
2
In his brief on appeal, Petitioner alleges the district court improperly: (1)
deprived him of due process, (2) concluded there was sufficient evidence for the
disciplinary findings, (3) concluded Petitioner had no valid equal protection claim
under the Fourteenth Amendment, (4) considered Petitioner’s significant
hardship, (5) concluded the disciplinary hearing was conducted properly, (6)
denied Petitioner’s request for discovery, (7) dismissed Petitioner’s claim for
relief under Oklahoma law, Okla. Stat. tit. 57, § 564.1 (2007), and (8) dismissed
Petitioner’s application for a temporary restraining order without allowing for an
answer.
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panoply of rights due a defendant in such proceedings does not apply.” Wolff,
418 U.S. at 556. The decision to revoke a prisoner’s good time credits need only
be supported by “some evidence,” even if that evidence might be characterized as
meager. Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455,
457 (1985). “Ascertaining 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. “The fundamental fairness guaranteed by
the Due Process Clause does not require courts to set aside decisions of prison
administrators that have some basis in fact.” Id. at 456. Only if the record is
devoid of evidence, providing no support for a disciplinary board’s decision,
would a decision to revoke good time credits violate due process. See id. at 457.
In Hill, three inmates lost their good times credits for allegedly assaulting a
fellow inmate. Id. at 447–48. Two of the inmates claimed innocence at their
disciplinary hearing, and the assaulted inmate gave written statements claiming
none of the three inmates under scrutiny had caused his injuries. Id. at 448.
However, the disciplinary board received evidence from a prison guard stating he
discovered the lone, assaulted inmate with only three inmates nearby fleeing in
plain view. Id. at 456. Even though there was evidence pointing to the inmates’
innocence, the inmates lost their good time credits. Id. at 448. After multiple
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state court appeals and on a writ of certiorari from the Massachusetts Attorney
General, the Supreme Court ultimately upheld the prison officials’ decision to
revoke the inmates’ good time credits because the record included some evidence
supporting the outcome, even though it was meager. Id. at 457.
In the instant case, the prison initiated a disciplinary proceeding against
Petitioner because a prison official found two packs of rolling papers, two bags of
tobacco, two Stacker 2 pills, one Neurontin, one Baclofen, one small white pill,
and one small pink pill in Petitioner’s cell. If liberally construed, see Hunt v.
Uphoff, 199 F.3d 1220, 1223 (10th Cir. 1999), Petitioner argues that he is
factually innocent because he had a prescription for the Neurontin and Baclofen
pills and possibly had prescriptions for the other unidentified pills and thus could
not be convicted under Section 09-3. A conviction under Section 09-3 requires:
Possession/introduction of any drug, narcotic, intoxicant, chemical,
to include paperwork or documentation containing information for
the manufacture of intoxicants/drugs/illegal substances, drug
paraphernalia, not prescribed by medical staff, or failure to take
medication as prescribed.
Department Inmate Disciplinary Procedures, OP-060125, § 09-3, available at
http://www.doc.state.ok.us/offtech/060125aa.pdf.
Petitioner misunderstands the nature of our review. We uphold a
revocation of good time credits where there is some evidence to support the
disciplinary findings at the time. Even if Petitioner could now prove he had
prescriptions for the unidentified pills, that evidence was not on the record when
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the prison officials were making their decision to revoke his good time credits. In
fact, there was evidence on the record that a prison nurse “stated she could not
[identify] the small white or pink pill” and that Petitioner “did not have a
prescription for these pills.” (R. Doc. No. 8, Petr.’s App. III, Attach. B.) As in
Hill, we need only examine whether the prison officials found some evidence to
support their disciplinary findings. Here, the record at the disciplinary hearing
did not include Petitioner’s actual prescription information. However, prison
officials did have two reporting officers’ statements of items they discovered
during a “shakedown” of Petitioner’s cell and the nurse’s statement. These
statements meet our standard of some evidence. The findings were not arbitrary.
We have carefully reviewed Petitioner’s brief, the magistrate judge’s report
and recommendation, the district court’s rulings, and the record on appeal. We
find both as to the claim of factual innocence and the balance of his claims on
appeal nothing that meets our standard for granting a certificate of appealability.
For substantially the reasons set forth in the magistrate judge’s report and
recommendation and in the district court’s orders, 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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