FILED
United States Court of Appeals
Tenth Circuit
April 16, 2014
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
RICHARD L. DOPP,
Petitioner - Appellant,
v. No. 14-6025
(D.C. No. 5:12-CV-00703-D)
JUSTIN JONES, Director DOC; (W. D. Okla.)
RANDALL WORKMAN, Warden,
Respondent - Appellee.
ORDER DENYING
CERTIFICATE OF APPEALABILITY *
Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.
Petitioner and appellant, Richard L. Dopp, an Oklahoma state prisoner
proceeding pro se, seeks a certificate of appealability (COA) in order to appeal
the district court’s denial of his petition under 28 U.S.C. § 2241. Having
concluded that he fails to meet the standards for issuance of a COA, we deny Mr.
Dopp’s request for a COA and dismiss this matter.
*
This order is not binding precedent, except under the doctrines of law of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.
BACKGROUND
Mr. Dopp is serving a sentence of life imprisonment, without the possibility
of parole. Mr. Dopp claims that he was denied substantive and procedural due
process in connection with two disciplinary convictions, in which he was found
guilty of escape and of possession of contraband. He accordingly filed the instant
habeas petition, pursuant to 28 U.S.C. § 2241. Additionally, Mr. Dopp filed a
Motion for Preliminary Injunction and/or Temporary Restraining Order, seeking
mandated access to an adequate law library and legal materials.
Both matters were referred to a magistrate judge. With respect to the
request for injunctive relief, the magistrate judge issued a Report and
Recommendation, explaining her rationale for denying the requested relief:
Petitioner’s underlying habeas claims allege a lack of
procedural and substantive due process in prison disciplinary
proceedings and bear no relationship to Petitioner’s subsequent
alleged denial of access to a law library and legal materials.
Therefore, the undersigned finds that a preliminary injunction would
be inappropriate in the instant case and recommends that the motion
be denied.
9/19/2012 Report & Recommendation at 2.
With respect to the habeas petition, the magistrate judge “recommends that
the Petition be summarily dismissed without prejudice in accordance with Rule 4
of the Rules Governing Section 2254 Cases because even if Petitioner’s
allegations are true, the court cannot grant any effective remedy in habeas relief.”
2/7/2013 Report & Recommendation at 1.
-2-
The district court adopted each Report in separate Orders, further
explaining its reasons for agreeing with the magistrate judge’s recommendations.
It then dismissed Mr. Dopp’s habeas petition without prejudice, and denied his
motion for a preliminary injunction or temporary restraining order. The district
court subsequently denied Mr. Dopp’s motion to Alter or Amend/Reconsider.
The court did not address the availability of a COA to permit an appeal, but it did
grant Mr. Dopp’s’ motion for leave to proceed in forma pauperis on appeal,
finding that he “has made reasoned, nonfrivolous arguments in support of the
issues to be raised on appeal.” 3/10/2014 Order at 1. Mr. Dopp requests a COA
from this court to enable an appeal from the denial of his habeas petition.
DISCUSSION
A state prisoner must obtain a COA before pursuing a habeas petition.
Allen v. Zavaras, 568 F.3d 1197, 1199 (10th Cir. 2009); 28 U.S.C.
§ 2253(c)(1)(A). A COA will issue “only if the applicant has made a substantial
showing of the denial of a constitutional right,” which is accomplished when an
applicant shows “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). An applicant
denied habeas relief on procedural grounds “must also show ‘that jurists of reason
would find it debatable . . . whether the district court was correct in its procedural
-3-
ruling.’” Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008) (quoting
Slack, 529 U.S. at 484).
As indicated, Mr. Dopp is serving a life sentence without the possibility of
parole for a drug trafficking crime committed after a previous felony conviction.
Accordingly, under Oklahoma law, he is not eligible to earn time credits toward
completion of his prison term, nor is he eligible for parole. See Okla. Stat. tit. 57,
§§ 138(A), 332.7(A). This was the basis upon which the magistrate judge
recommended summary dismissal without prejudice.
In his objections to the magistrate judge’s Report, Mr. Dopp argued that the
magistrate judge had overlooked the possibility that the disciplinary convictions
might deprive him of an opportunity to obtain a commutation of his sentence. His
argument is that if the misconduct convictions remain on his record he will never
receive a favorable recommendation by the Pardon and Parole Board or any
favorable actions by the Governor on an application for commutation. Mr. Dopp
thus claims that the disciplinary convictions will inevitably affect the duration of
his sentence to some degree.
The district court conducted a de novo review of the issue, and determined
that “the possibility that Petitioner’s misconduct convictions might one day
disadvantage him with respect to a possible commutation of his sentence is too
speculative to provide a basis for a writ of habeas corpus. The cases on which
Petitioner relies are inapposite and address the issue of whether a protected
-4-
liberty interest was infringed.” 3/20/2013 Order at 2. We agree with the district
court’s analysis, as we explain further below.
“The Fourteenth Amendment prohibits states from depriving citizens of
liberty without due process of law.” Wilson v. Jones, 430 F.3d 1113, 1117 (10th
Cir. 2005); see Sandin v. Conner, 515 U.S. 472 (1995) (holding that prisoners are
entitled to due process before being subjected to disciplinary conduct that
inevitably affects the duration of their sentence). “A liberty interest may arise
from the Constitution itself, by reason of guarantees implicit in the word ‘liberty,’
or it may arise from an expectation of interest created by state laws or polices.”
Wilkinson v. Austin, 545 U.S. 209, 221 (2005); see also Ky, Dep’t of Corr. v.
Thompson, 490 U.S. 454, 461 (1989) (“[S]tate law may create enforceable liberty
interests in the prison setting.”).
In Wilson, the plaintiff, an Oklahoma state prisoner, was convicted of a
Class X misconduct, which required his classification level to be reduced from
four to one. That mandatory reduction implicated a liberty interest because
“[p]rison officials exercised absolutely no discretion over the imposition of [the
punishment] and had no discretion to allow [the plaintiff/prisoner] to avoid
[punishment].” Wilson, 430 F.3d at 1120-21. Because the misconduct conviction
“‘inevitably affect[ed] the duration of [the prisoner’s] sentence,’” id. at 1120
(quoting Sandin, 515 U.S. at 487), he was entitled to the due-process protections
of Wolff v. McDonnell, 418 U.S. 539, 557 (1974). Wilson, 430 F.3d at 1124.
-5-
By contrast, in Cardoso v. Calbone, 490 F.3d 1194, 1198 (10th Cir. 2007),
we held that a prisoner’s reduction in classification was “not mandatory” and
therefore did not implicate a liberty interest. Wilson and Cardoso thus indicated
that if the prisoner’s demotion was not discretionary and did inevitably affect the
duration of his sentence, he had a liberty interest in his credit-earning
classification level. That is not the case here, where Mr. Dopp has no liberty
interest in maintaining an incident-free disciplinary record, so that he might
possibly (indeed, entirely speculatively) receive favorable commutation
consideration.
Furthermore, the district court observed that the magistrate judge’s
recommendation for dismissal of Mr. Dopp’s habeas petition was “not based on
the lack of a protected liberty interest but the unavailability of a habeas remedy.”
3/20/2013 Order at 3. As the court noted, “[i]n this circuit, a prisoner who
challenges the fact or duration of his confinement and seeks immediate release or
a shortened period of confinement, must do so through an application for habeas
corpus.” Id. (quoting Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir.
2012) (citing McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811 (10th Cir.
1997))). By contrast, a request for “a change in the place of confinement is
properly construed as a challenge to the conditions of confinement” and must be
brought as a civil rights action. Id. Similarly, a request or a “challenge to a
transfer from one security level to another or from one prison to another is
-6-
cognizable under § 1983.” Boutwell v. Keating, 399 F.3d 1203, 1209 (10th Cir.
2005).
In sum, expungement of Mr. Dopp’s misconduct convictions in this case
would not result in a speedier release from prison, because it implicates no liberty
interest nor does it affect his right to earn time credits or be considered for parole,
as he has no such right. As the district court stated, “[t]he only effect of
expungement would be to increase Petitioner’s inmate classification and improve
his housing assignment under maximum security at OSP; in other words, the relief
he seeks would affect only his conditions of confinement. Under the
circumstances, Plaintiff’s remedy is a civil action for relief under § 1983.”
3/20/2013 Order at 3. The court accordingly adopted the Report and dismissed
the 28 U.S.C. § 2241 petition without prejudice to refiling.
Finally, we note that Mr. Dopp argues in his request for a COA that he
should have been permitted to amend his petition prior to dismissal. This is the
first time Mr. Dopp suggests he might want to amend his petition, or claims that
the district court erred in failing to spontaneously grant such amendment.
Generally, we decline to consider issues raised for the first time on appeal. See
United States v. Mora, 293 F.3d 1213, 1216 (10th Cir. 2002). And, while we
construe Mr. Dopp’s pro se pleadings liberally, we do not excuse him from
following “the same rules of procedure that govern other litigants.” Garrett v.
Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
-7-
We therefore do not consider Mr. Dopp’s argument that he should have
been permitted to amend his petition. We do note, however, that the dismissal of
his petition is without prejudice to refiling.
CONCLUSION
For the foregoing reasons, we DENY Mr. Dopp a COA and DISMISS this
matter.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
-8-