FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT June 13, 2013
Elisabeth A. Shumaker
Clerk of Court
BILL CATHEY,
Petitioner – Appellant,
No. 13-7010
v. (D.C. No. 6:12-CV-00264-FHS-KEW)
(D. E.D. Okla.)
RANDY WORKMAN, Warden,
Respondent – Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY
AND DISMISSING APPEAL
Before HARTZ, O'BRIEN, and GORSUCH, Circuit Judges.
Bill Cathey, an Oklahoma state prisoner, seeks to appeal from the denial of his 28
U.S.C. § 2241 habeas petition.1 He failed to exhaust his state remedies so the district
judge dismissed his petition. We deny his request for a certificate of appealability
(COA).
I. Background and Procedural History
Cathey filed a § 2254 habeas petition on May 4, 2012, which the district judge
correctly construed as a § 2241 petition. He claimed prison officials conducted a
“pretextual shakedown” of his cell and he was cited for possession of contraband. (R. at
1
His request for a COA was also denied. In this Court, he has renewed his
request and has also requested to appeal without prepayment of fees.
9.) He contends none of the items were contraband. Cathey was issued an Offense
Report and was convicted the next day, April 27, 2010.2 The conviction resulted in his
loss of earned good behavior credits. He claims he was not allowed to attend the
disciplinary hearing, present exculpatory evidence, or call witnesses, all in violation of
his due process rights. He also says he did not learn the hearing had been conducted until
sometime in February 2011, despite repeated, but unanswered, requests for an official
record of the hearing.
The Oklahoma Department of Corrections (DOC) moved to dismiss the petition
because Cathey had failed to exhaust his administrative and state judicial remedies. The
relevant DOC records showed Cathey did not file a misconduct appeal related to the
offense. He did file numerous requests for information regarding the conviction.
Morever, in Oklahoma, when earned credits are revoked in a prison disciplinary hearing,
an Oklahoma inmate can pursue a judicial appeal process. See Okla. Stat. tit. 57, § 564.1
(effective May 10, 2005). The statute requires the state court to determine whether due
process was provided. Id. § 564.1(D). The inmate must file within 90 days of the date he
was notified of the DOC’s final decision in the disciplinary appeal process. Id. §
564.1(A)(1). Cathey does not claim to have filed a request for judicial review.
In response, he says he complied with the prison’s administrative procedures. He
submitted a misconduct appeal form dated February 28, 2011, and an appeal to the
2
The record is unclear whether he was convicted of not cooperating with the
investigation because he allegedly tore up his citation, or whether his conduct was
construed as a guilty plea to the original charge.
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Administrative Review Authority dated April 1, 2011. He also argued he was not
required to exhaust the judicial remedy in Oklahoma to file a federal claim.
In the alternative, the DOC claimed Cathey’s petition was time-barred under the
one-year limitation period in the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). Cathey asserts the time for filing was tolled because he had raised it in an
action under 42 U.S.C. § 1983, and the dismissal of that claim, without prejudice, did not
occur until March 29, 2012. See Cathey v. Jones, No. 10-220, 2012 WL 1068882 *3
(E.D.Okla. Mar. 29, 2012) (unpublished), aff’d 505 F. App’x 730 (10th Cir. 2012)
(unpublished).
Relying on our decision in Magar v. Parker, 490 F.3d 816, 819 (10th Cir. 2007),
the district judge decided Cathey’s failure to seek judicial review under the Oklahoma
statute barred federal habeas review. Further, “[e]ven accepting petitioner’s completely
unsubstantiated allegation that he was not made aware of the misconduct conviction until
[February 2011], . . . the petition still is barred by [AEDPA’s] one-year statute of
limitations.” (R. at 161.) Since Cathey’s tolling claim was unsupported by any authority,
the judge dismissed his petition and denied a COA.
II. Discussion
A COA is a jurisdictional prerequisite to our review of a 28 U.S.C. § 2241
petition. 28 U.S.C. § 2253(a), (c)(2); Dulworth v. Jones, 496 F.3d 1133, 1135 (10th Cir.
2007). Where the district judge has denied a COA on procedural grounds, we will issue a
COA only if “jurists of reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right and that jurists of reason would find it
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debatable whether the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (emphasis added). Even viewing Cathey’s COA
request with the magnanimity due pro se filings, see Andrews v. Heaton, 483 F.3d 1070,
1076 (10th Cir. 2007), he does not come close to demonstrating the district judge’s
procedural ruling is debatable.
“Congress has emphatically directed us that habeas petitioners seeking relief in
federal court must first exhaust all available state court remedies—that is, unless doing so
would be futile because of ‘an absence of available State corrective process’ or because
‘circumstances exist that render such process ineffective to protect the rights of the
applicant.’” Magar, 490 F.3d at 818 (quoting 28 U.S.C. § 2254(b)(1)); see also Montez
v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000) (recognizing the exhaustion
requirements contained in § 2254 apply to petitions brought under § 2241). Here, Cathey
concedes he did not seek relief through the judicial process in Oklahoma, but provides no
grounds to excuse his procedural default. We need not consider other arguments
because, on this basis alone, the propriety of the district court’s decision is not debatable.
We have reviewed Cathey’s filings and perceive no error in the district judge’s
assessment. We DENY Cathey’s application for a COA and DISMISS the matter.
Because he has not shown “the existence of a reasoned, nonfrivolous argument on the
law and facts in support of the issues raised,” DeBardeleben v. Quinlan, 937 F.2d 502,
505 (10th Cir.1991), we also DENY his motion to proceed without prepayment of costs
and fees. Any unpaid amounts of the filing and docketing fees are now due. If he fails to
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immediately pay the fees to the clerk of the district court, he is required to continue
making periodic payments.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
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