Petition for Writ of Certiorari — Jones v. Wilson (No. 05-1618)

reme

Sup pre Court, U.S.

Oo

051618 JUN 16 206

No.

aE sacena OFFICE OF THE CLERK

In The

Supreme Court of the Anited States

+

JUSTIN JONES, Director of the Oklahoma

Department of Corrections,

Petitioner,

vs.

LARRY WILSON,

Respondent.

+

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

¢

PETITION FOR WRIT OF CERTIORARI

S

W.A. DREW EDMONDSON

Attorney General of Oklahoma

JENNIFER B. MILLER, OBA# 12074*

Assistant Attorney General

2300 N. Lincoln Blvd., Room 112

Oklahoma City, Oklahoma 73105

(405) 521-3921 FAX (405) 521-6246

Attorneys for Petitioner

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

i

QUESTION PRESENTED

Whether, in light of this Court’s decision in Sandin v.

Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418

(1995), a federal habeas court may confer a liberty interest

on a State prison inmate in a particular credit-earning

level, based on the language of a State statute and prison

regulations, where the inmate suffers nothing more than

the loss of the opportunity to earn credits toward early

release? ,

ii

TABLE OF CONTENTS

OPENID Bat OF ssrciteerteticcerassesssastivesinvscevosevevceseess

STATEMENT OF JURISDICTION ........... cece eeeseeeees

CONSTITUTIONAL, STATUTORY AND ADMINIS-

TRATIVE PROVISIONS INVOLVED................0..00.

STATESMEN G Cee Sree Get iessrsccsseveresessvesevsevesveeseseses

STAT EREBOG © Gir Peta tstictaptencssntvsnenivesenseescoceccccscess

REASONS FOR GRANTING THE WRIT.................04.

I.

THE DECISION OF THE TENTH CIRCUIT

THAT A STATE INMATE HAS A LIBERTY

INTEREST IN REMAINING AT A PARTICU-

LAR EARNED CREDIT LEVEL CONFLICTS

WITH THIS COURT'S DECISION IN SANDIN

VC aie teteendeteercavitcicecenssverescoes

A. The Tenth Circuit’s decision has violated

Sandin by parsing the language of the

regulations to find a State-created liberty

SE er ctliciadaetcawincaessvvevesseeveese

B. The Tenth Circuit’s finding that Respon-

dent lost more than an opportunity to earn

credits misinterprets the way inmates in

Oklahoma earn credits ..................cccccceseeees

C. The Tenth Circuit’s finding that Respon-

dent’s misconduct conviction inevitably af-

fected the duration of his sentence is

contrary to Sandin because it incorrectly

views the effects of the conviction in hind-

ao ow bd

13

TABLE OF CONTENTS — Continued

Page

D. The Tenth Circuit’s decision may result in

serious repercussions if left unchecked...... 18

II. THE TENTH CIRCUIT’S DECISION REPRE-

SENTS A SPLIT AMONG THE CIRCUITS AS

IT CONFLICTS WITH A DECISION OF THE

FIFTH CIRCUIT ON THE SAME IMPOR-

BERET PR Fe stinkissstrsbdsscrnnieeenieiplciopiemianaaiban 19

I i 21

TABLE OF AUTHORITIES

Page

CASES CITED

Bulger v. U.S. Bureau of Prisons, 65 F.sd 48 (5th

Ga IMI tisssstrecss dob nedecieidilintabeaabieiimiachdtebsoninaughacatinensdes 13, 16

Canady v. Reynolds, 880 P.2d 391 (Okla. Crim. App.

EE ists te cacadaeclalaeitboens th ceoictiak Guano disigiiniassbaaibianadiieseddes 15

Gamble v. Calbone, 375 F.3d 1021 (10th Cir. 2004)............ 7

Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74

Bc SPE IID siticts esti ocnctopadinonisaddacacascsueuedbialende 10, 11

Higgason v. Farley, 83 F.3d 807 (7th Cir. 1996) ......... 13, 16

Malchi v. Thaler, 211 F.3d 953 (5th Cir. 2000)....... 6, 20, 21

Montgomery v. Anderson, 262 F.3d 641 (7th Cir.

«RARER LAER" PE TRE NNSA AR VC BMI NCNG PEIN AOE 14, 15

Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800,

ee Race GO Wick ics ptcmntricteincccmintiiiccicasineennents 8

Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132

ie UE sctipnddsnatibnceeccdneebenidearceciaddincnn passim

Tomlin v. State ex rel. Department of Corrections,

814 P.2d 154 (Okla. Crim. App. 1991)... 15

Town of Castle Rock, Colo. v. Gonzales, 125 S.Ct.

BESO, NGS EB Be Be OD ovens vecinsvesnccscsncswesuvecoseeasane 18

Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96

eS fs Reet ner intr murda May Snel ke nM Fuad 8

Wilkinson v. Austin, 545 U.S. 209, 125 S.Ct. 2384,

pe Be Lk. : RR a Re ae Mann re Ons Mem ae Cree 12

Wilson v. Jones, 430 F.3d 1113 (10th Cir. 2005)......... passim

TABLE OF AUTHORITIES — Continued

Page

Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41

ne es 10, 11, 12

Zimmerman v. Tribble, 226 F.3d 568 (7th Cir. 2000)..... 13, 16

FEDERAL STATUTES CITED

SOU. BS Ra iivcsccnecsions ROTM ce APRA RAN SAPO meee re 2 1

STATE STATUTES CITED

Ce ee Oe a aie ecceobicacinkoicencal 2,16

OTHER CITES

CES Gat: Di Be iii eee 2

1

- PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully requests this Court to grant a

petition for writ of certiorari to review the Opinion of the

United States Court of Appeals for the Tenth Circuit

entered December 7, 2005. See Wilson v. Jones, 430 F.3d

1113 (10th Cir. 2005).

+

OPINIONS BELOW

The Opinion of the United States Court of Appeals for

the Tenth Circuit has been reported as Wilson v. Jones, 430

F.3d 1113 (10th Cir. 2005). It is reprinted at App. 1-22 of the

appendix. The Order of the United States Court of Appeals

for the Tenth Circuit denying rehearing, which reflects that

five judges would have granted the petition, has not been

reported and is reprinted at App. 23-24 of the appendix. The

Report and Recommendation and the Order and Judgment

of the United States District Court for the Western District

of Oklahoma from which appeal was taken by Respondent

are reprinted at App. 25-36 of the appendix.

+

STATEMENT OF JURISDICTION

The Opinion of the Tenth Circuit was entered on

December 7, 2005. Petitioner timely filed a Petition for

Rehearing and Request for En Banc Consideration on

December 20, 2005. The Order denying petition for rehear-

ing was entered on March 23, 2006, and noted that five

judges voted to grant the petition. The jurisdiction of this

Court is invoked pursuant to 28 U.S.C. § 1254(1).

+

2

CONSTITUTIONAL, STATUTORY AND

ADMINISTRATIVE PROVISIONS INVOLVED

U.S. Const. Amend. XTV, § 1:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or en-

force any law which shall abridge the privileges

or immunities of citizens of the United States;

nor shall any State deprive any person of life, lib-

erty, or property, without due process of law; nor

deny to any person within its jurisdiction the

equal protection of the laws.

Okla. Stat. tit. 57, § 138:

(B) The Department of Corrections is directed to

develop a written policy and procedure whereby

inmates shall be assigned to one (1) of four (4)

class levels determined by an adjustment review

committee of the facility to which the inmate is

assigned. The policies and procedures developed

by the Department shall include, but not be lim-

ited to, written guidelines pertaining to awarding

credits for rehabilitation, obtaining job skills and

educational enhancement, participation in and

completion of alcohol/chemical abuse programs,

incentives for inmates to accept work assignments

and jobs, work attendance and productivity, con-

duct record, participation in programs, coopera-

tive general behavior, and appearance. When

assigning inmates to a class level the adjustment

review committee shall consider all aspects of the

policy and procedure developed by the Depart-

ment, including but not limited to, the criteria for

awarding credits required by this subsection.

* * *

(D)(1)(a) Class level 1 shall include inmates

not eligible to participate in class levels 2

through 4, and shall include, but not be limited

to,... inmates subject to disciplinary action.

Oklahoma Department of Corrections Pol-

icy OP-060107(1T)(C)(2)(a)(6):

An inmate’s incarceration will be based on a level

system that determines custody level, job status,

program status, and privileges earned.

* * *

At least once every 120 days, an inmate must be

reviewed by the classification committee, with no

less than three staff members in attendance.

Staff members, at a minimum, will include the

inmate’s case manager, a correctional officer or

correctional counselor, and will be chaired by the

unit manager. In order for an inmate to promote,

he/she will meet the following requirements... ..

Inmates may be assigned to Level 1 whenever

deemed appropriate by the facility/unit classifi-

cation committee. Level 1 assignment is manda-

tory under the following circumstances:

* * *

Upon conviction of any misconduct, effective the

date of the misconduct.

+

STATEMENT OF THE CASE

This case presents this Court with the opportunity to

provide necessary guidance to the many lower courts

which must address whether a State prison inmate has a_—

constitutionally protected liberty interest in the particular

4

credit-earning level to which he is assigned. Such a deter-

mination is required to resolve the issue of whether an

inmate is entitled to due process when he is reclassified to

a lower level, where he would earn fewer credits toward

early release.

In his habeas petition to the United States District

Court for the Western District of Oklahoma, Respondent

raised one ground for relief, that his constitutional rights

were violated when he was convicted of a misconduct in a

prison disciplinary proceeding which was unsupported by

evidence. Petitioner argued in response that Respondent

had failed to exhaust his State court remedies; that

Respondent’s claim was moot because his punishment,

which had been suspended for 90 days, had never been

carried out; and that Respondent’s misconduct conviction

was indeed supported by sufficient evidence.

The Honorable Bana Roberts, United States Magis-

trate Judge, issued a Report and Recommendation

wherein she acknowledged Petitioner’s exhaustion argu-

ment, but found Respondent’s claim to be without merit

(App. 27-29). Magistrate Roberts found Respondent had

failed to state a claim which invoked the procedural protec-

tions of the Due Process Clause, since his claim regarding

his classification level did not state a constitutional claim

(App. 29-33). Respondent objected to the magistrate’s

findings, but the Honorable Stephen P. Friot, United States

District Judge, adopted the Report and Recommendation

and ruled in favor of Petitioner (App. 34-36).

Respondent appealed to the United States Court of

Appeals for the Tenth Circuit. The Tenth Circuit reversed

the judgment of the District Court, finding that Respon-

dent’s mandatory demotion in credit-earning status as a

result of the misconduct conviction inevitably affected the

duration of his sentence, thus giving him a liberty interest

in the disciplinary action. Wilson v. Jones, 430 F.3d 1113,

1120 (10th Cir. 2005). The Circuit Court then reviewed

Respondent’s misconduct conviction to determine whether

he had received due process. Jd. at 1123. The Tenth Circuit

concluded he had not, and ordered that the misconduct

conviction be reversed and expunged from Respondent’s

record, and that Respondent’s former status in earning

credits be restored. Jd. at 1123-24.

Respondent was scheduled to be released on Decem-

ber 22, 2005, without any ruling in his favor by the courts.

So that he could benefit from the ruling, the Tenth Court,

after briefing from the parties, issued its mandate a day

early on December 20, 2005. Respondent was released on

that date with the qualification that if Petitioner’s Petition

for Rehearing and Request for En Banc Consideration

were granted, the mandate would be recalled and a new

one would be issued. While the Petition for Rehearing was

pending, the Tenth Circuit ordered further briefing on the

issue of whether the case had been mooted by Respon-

dent’s early release. Both Petitioner and Respondent

argued the case was not moot as Respondent still had two

days of his sentence to serve should the decision be re-

versed on rehearing. The Order denying rehearing made

no further mention of the mootness issue.

+

STATEMENT OF FACTS

In a prison disciplinary proceeding on November 2,

2001, Respondent received a misconduct conviction for

attempting to obtain money by false pretenses. Wilson, 430

F.3d at 1116. His punishment, 30 days in disciplinary

segregation and the revocation of 180 earned credits, was

suspended for 90 days. Jd. When 90 days passed with no

further infraction, Respondent’s punishment was never

imposed. Jd. However, pursuant to prison regulations and

State statute Respondent was mandatorily demoted from

Earned Credit Level 4, where he earned 44 credits per

month toward early release, to Earned Credit Level 1,

where he earned no credits. Jd. This demot‘on was manda-

tory due to the misconduct conviction. Jd. (citing Okla.

DOC Policy OP-060107(1)(C)(2)(aX5)). After a month at

Level 1, Respondent was reclassified to Level 2, earning 22

credits per month, where, according to prison regulations,

he was required to remain for two years following the

misconduct conviction. Jd. at 1115-16. He remained at

Level 2 until October 2002, when he committed another

misco.iduct not at issue in this case, and was again man-

datorily demoted to Level 1. Jd. at 1116.

¢

REASONS FOR GRANTING THE WRIT

~ This Court’s review of this matter is necessary be-

cause the decision of the Tenth Circuit to confer on Re-

spondent a liberty interest in the earned credit level to

which he is assigned conflicts with this Court’s decision in

Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132

L.Ed.2d 418 (1995). The Tenth Circuit’s decision is like-

wise in sharp contrast with the decision of the United

States Court of Appeals for the Fifth Circuit on the same

important matter in Malchi v. Thaler, 211 F.3d 953 (5th

Cir. 2000), and this Court should resolve this split among

the circuits.

7

I. THE DECISION OF THE TENTH CIRCUIT

THAT A STATE INMATE HAS A LIBERTY IN-

TEREST IN REMAINING AT A PARTICULAR

EARNED CREDIT LEVEL CONFLICTS WITH

THIS COURT’S DECISION IN SANDIN V.

CONNER.

In his appeal to the Tenth Circuit, Respondent

claimed he was denied due process when he was demoted

to Earned Credit Level 1 following his misconduct convic-

tion. Relying on Sandin v. Conner, 515 U.S. 472, 115 S.Ct.

2293, 132 L.Ed.2d 418 (1995), and the Tenth Circuit’s

earlier decision in Gamble v. Calbone, 375 F.3d 1021 (10th

Cir. 2004),’ Respondent argued his automatic demotion as

a result of the misconduct conviction inevitably affected

the length of his sentence and thus gave him a liberty

interest in the disciplinary proceeding. He further argued

that because his misconduct conviction was not supported

by sufficient evidence, he had been denied due process.

The Tenth Circuit agreed with Respondent on both mat-

ters.

This Court has repeatedly counseled against undue

interference by a federal habeas court into the administra-

tion of State prisons. In Sandin, 515 U.S. at 482, 115 S.Ct.

" In Gamble, the Tenth Circuit decided an appeal brought by two

prisoners in the same prison as Respondent, convicted of the same

offense. The Tenth Circuit reversed the convictions of those two inmates

based on the lack of evidence supporting the misconduct convictions. /d.

at 1031-32. In Gamble, however, each of the inmates had lost previously

awarded earned credits in which they had a recognized liberty interest,

and their convictions, unsupported by the evidence, violated their due

process rights. Jd. at 1025, 1031-32. Respondent in this case relied on

Gamble because the Tenth Circuit ordered the restoration of the

inmates’ credit-earning status as part of the remedy. Wilson, 430 F.3d at

1120 (citing Gamble, 375 F.3d at 1031-32).

8

at 2299, this Court noted that its previous methodology in

determining how much, if any, process a prison inmate is

due in disciplinary matters had “led to the involvement of

federal courts in the day-to-day management of prisons,”

when in fact “federal courts ougl.. to afford appropriate

deference and flexibility to state officials trying to manage

a volatile environment.” Even prior to Sandin, this Court

acknowledged that

[rlunning a prison is an inordinately difficult un

dertaking that requires expertise, planning, and

the commitment of resources, all of which are pe-

culiarly within the province of the legislative and

executive branches of government. Prison admini-

stration is, moreover, a task that has been com-

mitted to the responsibility of those branches, and

separation of powers concerns counsel a policy of

judicial restraint. Where a state penal system is

involved, federal courts have . . . additional reason

to accord deference to the appropriate prison au-

thorities.

Turner v. Safley, 482 U.S. 78, 84-85, 107 S.Ct. 2254, 2259,

96 L.Ed.2d 64 (1987) (citing Procunier v. Martinez, 416

U.S. 396, 405, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974)).

Instead of affording “appropriate deference and flexibility”

to the prison authorities in this case, the Tenth Circuit’s

decision has involved the federal court in the “day-to-day

management of prisons . . . with little offsetting benefit to

anyone.” Sandin, 515 U.S. at 482, 115 S.Ct. at 2299.

In its opinion reversing the judgment of the United

States District Court for the Western District of Okla-

homa, the Tenth Circuit: noted that Respondent’s reclassi-

fication resulting from his misconduct conviction was

9

mandatory. Wilson v. Jones, 430 F.3d 1113, 1120 (10th Cir.

2005). The Circuit Court therefore found the duration of

his confinement was inevitably affected, giving him a

liberty interest in the disciplinary hearing. Jd. As a result

of finding a liberty interest, the Tenth Circuit proceeded to

review Respondent’s misconduct conviction to determine if

he had received all the process he was due. /d. at 1123.

Finding the evidence insufficient to support the miscon-

duct conviction, the Tenth Circuit ordered restoration of

Respondent’s former status in earning credits. Jd. at 1123-

24.

In conferring on Respondent a liberty interest in the

mere opportunity to earn credits, the Tenth Circuit has

rendered a decision which is contrary to this Court’s

decision in Sandin in two ways. First, contrary to Sandin,

the Circuit Court focused its inquiry on the mandatory

language found in the prison regulations in finding Re-

spondent’s misconduct conviction inevitably affected the

duration of his sentence. Second, the Circuit Court’s

decision reflects a misunderstanding of Oklahoma’s earned

credit level scheme, as the misconduct did not inevitably

affect the length of Respondent’s sentence.

A. The Tenth Circuit’s decision has violated

Sandin by parsing the language of the

regulations to find a State-created liberty

interest.

In finding Respondent had a liberty interest in this

case, the Tenth Circuit used an approach which focused on

the language of the prison regulations, which approach

was abandoned by this Court in Sandin. The Circuit Court

noted that the language of the prison regulations man-

dated Respondent’s demotion in credit levels as a result of

10

his misconduct conviction, and prohibited him from being

considered for any level higher than Level 2 for a period of

two years. Wilson, 430 F.3d at 1120. The Tenth Circuit

concluded the mandatory language stripped prison offi-

cials of any discretion in this instance and thus created a

liberty interest in Respondent’s expectation to remain at a

certain level. Jd.

The Tenth Circuit’s decision in this case is very

similar to the decision of the United States Court of

Appeals for the Ninth Circuit which was overturned by

this Court in Sandin, where an inmate claimed a liberty

interest in a right to be free from disciplinary segregation.

At issue in Sandin was a Hawaii prison regulation which

instructed “the committee to find guilt when a charge of

misconduct is supported by substantial evidence.” Sandin,

515 U.S. at 476-77, 115 S.Ct. at 2296. From this language

the Ninth Circuit reasoned “that the committee’s duty to

find guilt was nondiscretionary”, drawing “a negative

inference that the committee may not impose segregation

if it does not find substantial evidence of misconduct.” Id.,

515 U.S. at 477, 115 S.Ct. at 2297. As such, the Ninth

Circuit found the petitioner had a liberty interest in

remaining free from disciplinary segregation and was

therefore entitled to due process in the committee’s deci-

sion to punish him in that manner. Jd., 515 U.S. at 476-77,

115 S.Ct. at 2296-97.

The Ninth Circuit’s decision prompted this Court in

Sandin to revisit its prior cases addressing State-created

liberty interests in shortened prison sentences, including

Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41

L.Ed.2d 935 (1974), and Hewitt v. Helms, 459 U.S. 460,

103 S.Ct. 864, 74 L.Ed.2d 675 (1983). At issue in Wolff was

a Nebraska statute “that bestowed mandatory sentence

11

reductions for good behavior ... revocable only for ‘fla-

grant or serious misconduct.’” Sandin, 515 U.S. at 477,

115 S.Ct. at 2297 (quoting Wolff, 418 U.S. at 545-46, 94

S.Ct. at 2969-70, n. 5-6). Because the earned credits in

Wolff were revocable only upon a finding that the inmate

was guilty of serious misconduct, the Court found the

statute had created a liberty interest as the inmate’s

interest in a shortened sentence was one of “‘real sub-

stance’”. Sandin, 515 U.S. at 478, 115 S.Ct. at 2297

(quoting Wolff, 418 U.S. at 557, 94 S.Ct. at 2975).

The Sandin Court went on to review its decision in

Hewitt, in which the Court had adopted a “mandatory

language” approach to determine whether prison regula-

tions conferred any liberty interest on inmates. Sandin, 515

U.S. at 480, 115 S.Ct. at 2298 (citing Hewitt, 459 U.S. at

471-72, 103 S.Ct. at 871). The Sandin Court noted that,

instead of focusing on whether the State had created an

interest of “real substance” as in Wolff, the decision in

Hewitt focused on whether the guidelines at issue “used

language of an unmistakably mandatory character’ such

that the incursion on liberty would not occur ‘absent speci-

fied substantive predicates.’” Sandin, 515 U.S. at 480, 115

S.Ct. at 2298 (quoting Hewitt, 459 U.S. at 471-72, 103 S.Ct.

at 871).

The Sandin Court abandoned such an approach in

determining whether prison regulations bestowed inmates

with any State-created liberty interests, finding that “the

search for a negative implication from mandatory lan-

guage in prison regulations has strayed from the real

concerns undergirding the liberty protected by the Due

Process Clause.” Sandin, 515 U.S. at 483, 115 S.Ct. at

12

2300.* The Court went on to reiterate that while States

may in certain circumstances create liberty interests

protected by due process, “these interests will be generally

limited to freedom from restraint wiuich ... imposes

atypical and significant hardship or ‘hs: inmate in relation

to the ordinary incidents of prison life” or “where the

State’s action will inevitably affect the duration of his

sentence.” Jd., 515 U.S. at 483-84, 487, 115 S.Ct. at 2300,

2302. See also Wolff, 418 U.S. at 557, 94 S.Ct. at 2975

(“[T]he Constitution itself does not guarantee good-time

credit for satisfactory behavior while in prison”.). It is the

latter situation which the Tenth Circuit referenced to find

a liberty interest in this case; however, the Circuit Court’s

finding is in reality based on the mandatory language of

the regulations, and is therefore improper, as such a

finding is in violation of Sandin.

The Tenth Circuit purported to base its finding of a

liberty interest on the nature of the deprivation by em-

ploying language from Sandin that “the misconduct

conviction infringed a liberty interest because it reduced

his credit earning class in a manner that ‘inevitably

affect[ed] the duration of his sentence.’” Wilson, 430 F.3d

at 1120 (quoting Sandin, 515 U.S. at 487, 115 S.Ct. at

2302). However, the Tenth Circuit’s application of this

standard focused almost entirely on the ‘anguage of the

* This Court recently reaffirmed the abe yment of the manda-

tory language approach in Wilkinson v. Austin, 5 U.S. 209, __, 125

S.Ct. 2384, 2393-94, 162 L.Ed.2d 174 (2005) (“In Sandin, we criticized

this methodology as creating a disincentive for States to promulgate

procedures for prison management, and as involving federal courts in

the day-to-day management of prisons.... For these reasons, we

abrogated the methodology of parsing the language of particular

regulations.”).

13

regulations at issue, and is thus contrary to this Court’s

abandonment of such an approach in Sandin, 515 USS. at

483-84, 115 S.Ct. at 2300. This conclusion is made fully

apparent below, wherein Petitioner establishes that, in

light of Sandin and the regulations at issue, Respondent’s

misconduct conviction did not inevitably affect the dura-

tion of his sentence. Contrary to the Tenth Circuit’s deci-

sion, Sandin requires this Court to find Respondent has no

liberty interest in the opportunity to earn credits.

B. The Tenth Circuit’s finding that Respon-

dent lost more than an opportunity to earn

credits misinterprets the way inmates in

Oklahoma earn credits.

The Tenth Circuit in this case concluded that Respon-

dent’s misconduct conviction “‘inevitably affected] the

duration of his sentence’” and therefore triggered the

protections of the Due Process Clause. Wilson, 430 F.3d at

1120 (quoting Sandin, 515 U.S. at 487, 115 S.Ct. at 2302).

In so finding, the Circuit Court cited cases wherein other

courts found that a transfer to another facility, a refusal to

participate in a program or a loss of a prison job, and the

resulting loss of opportunity to earn credits, did not

implicate a protected liberty interest. Wilson, 480 F.3d at

1119 (citing Zimmerman v. Tribble, 226 F.3d 568, 571-72

(7th Cir. 2000); Higgason v. Farley, 83 F.3d 807, 809-10

(7th Cir. 1996); Bulger v. U.S. Bureau of Prisons, 65 F.3d

48, 50 (5th Cir. 1995)). The Tenth Circuit distinguished the

instant case by finding Respondent “lost more than a mere

opportunity to earn credits upon satisfactory completion of

a job or program in the future.” Jd. at 1120. This statement

stems from a misunderstanding of the way credits are

earned by Oklahoma inmates, and this misunderstanding

14

is evidenced by the Circuit Court’s citation to Montgomery

v. Anderson, 262 F.3d 641 (7th Cir. 2001).

In Montgomery, 262 F.3d at 645, the United States

Court of Appeals for the Seventh Circuit found the Indiana

statute in question afforded inmates a liberty interest in

their earned credit level. The Tenth Circuit noted with

approval language from Montgomery that the statute

“required prisoners to be assigned to a credit-earning class

unless certain events occurred, thus ‘curtail[ing] adminis-

trators’ discretion and ... giviing] prisoners more than a

subjective hope of receiving day-for-day credit.’” Wilson,

430 F.3d at 1121 (quoting Montgomery, 262 F.3d at 645)

(emphasis added). The statute at issue in Montgomery,

however, is instantly distinguishable from the regulations

in the instant case. As acknowledged by the Circuit Court,

the Indiana inmates in Montgomery had a right to remain

at a certain level in the absence of certain events. Mont-

gomery, 262 F.3d at 645. The regulations at issue in this

case, however, create no such right for Oklahoma inmates.

Petitioner acknowledges that the Tenth Circuit’s

initial discussion of Oklahoma’s earned credit scheme is

correct:

Prisoners are automatically assigned to level

two upon reception into the prison system. Okla.

DOC Policy OP-060107(I(C)\(2)(b). Ordinarily, an

adjustment review committee of at least three

prison officials reviews an inmate’s classification

at least once every four months to determine

whether a change in classification is necessary be-

cause a prisoner has met (or failed to meet) cer-

tain statutory criteria. Okla. Stat. tit. 57, § 138(F).

The statutory classification system provides for

classification between levels one and four

15

depending on the factors listed in the statute,

some of which are objective, such as the length of

incarceration, and some of which require an ex-

ercise of prison officials’ subjective judgment and

discretion, such as whether a prisoner’s hygiene

has been “outstanding” or merely “good.” See id.

§ 138(D)(3)&(4). Once a prisoner is classified at a-

particular level, the prisoner is statutorily enti-

tled to earn a specified number of credits. Id.

Wilson, 430 F.3d at 1116. What the above recitation im-

plies, but does not explicitly acknowledge, is that which

the Oklahoma Court of Criminal Appeals has long recog-

nized: that while Oklahoma confers on an inmate the right

to earn the number of credits which corresponds to the

level to which he is assigned, he has no right or expecta-

tion to be assigned to any particular level, or to remain at

a particular level once assigned. Canady v. Reynolds, 880

P.2d 391, 397 (Okla. Crim. App. 1994) (acknowledging the

discretion inherent in Section 138); Tomlin v. State ex rel.

Dep't of Corrections, 814 P.2d 154, 156 (Okla. Crim. App.

1991) (“the award of earned time credits is based upon the

Department of Corrections’ assessment of an inmate’s

compliance with guidelines and is thus discretionary”).

Unlike the situation in Montgomery, where, once

assigned to a particular level, inmates cannot be demoted

in the absence of certain circumstances, Oklahoma in-

mates must maintain their eligibility for a certain level

and neither statute nor prison regulations confer any

expectation that they will remain at that level unless a

specified event occurs. Canady, 880 P.2d at 397; Tomlin,

814 P.2d at 156. Instead, because prison officials retain

such wide discretion in the up and down classification of

inmates among the credit levels, Oklahoma inmates have

16

nothing more than a subjective hope of remaining at any

certain level once assigned.

As used in Section 138 and the corresponding regula-

tions, the term mandatory does not mean it was manda-

tory that Respondent remain at a certain level in the

absence of some underlying event. Based =» the discre-

tionary nature of assignment to a level, Respondent had

no legitimate expectation of remaining at a particular

level once assigned. Okla. Stat. tit. 57, § 138(D)(3), (4)

(2001). The fact that Respondent’s demotion was manda-

tory in this instance does nothing to solidify his subjective

hope of remaining at a certain level into a constitutionally

protected interest. Thus, contrary to the Tenth Circuit’s

finding, the only thing Respondent lost with his demotion

was the mere opportunity to earn credits upon his contin-

ued eligibility to remain at a higher credit level, which

other circuits have repeatedly found does not confer a

liberty interest. See Zimmerman, 226 F.3d at 571-72;

Higgason, 83 F.3d at 809-10; Bulger, 65 F.3d at 50. Any

other conclusion, as shown in Sub-Proposition D, infra,

could have serious repercussions.

C. The Tenth Circuit’s finding that Respon-

dent’s misconduct conviction inevitably af-

fected the duration of his sentence is

contrary to Sandin because it incorrectly

views the effects of the conviction in hind- -

sight.

In finding Respondent’s demotion to Level 1 inevitably

affected the length of his sentence, the Tenth Circuit

looked at the misconduct conviction from the improper

viewpoint. Whether an action inevitably affects the dura-

tion of confinement must be viewed not in hindsight, as

17

Petitioner asserts the Circuit Court did, but from the point

in time when the action is taken. This is the point of view

this Court took in Sandin, where it considered whether

the inmate’s misconduct conviction would inevitably affect

his chances of parole in the future. Sandin, 515 U.S. at

487, 115 S.Ct. at 2302. Considering Respondent’s demotion

from this proper point of view, just as in Sandin, it is

entirely speculative whether the misconduct conviction

and its resulting demotion in earned credit levels would

inevitably affect his sentence; therefore, the demotion is

too attenuated to state a liberty interest.

By focusing on the mandatory language of the regula-

tion, the Circuit Court ignored the many other discretion-

ary decisions that could have been made at that time

based on any number of factors which could have resulted

in Respondent’s demotion to Level 1 absent any finding of

misconduct on his part. Okla. Stat. tit. 57, § 138(D)(3), (4).

Because of the wide discretion afforded prison employees

in classifying inmates among credit levels, it is impossible

to know whether Respondent would have maintained his

eligibility to remain at Level 4 or even Level 3 in the

absence of this misconduct. The only certainty in this case

is that Respondent remained eligible to earn credits at

Level 2 from the month following his November 2001

misconduct until he received another misconduct not at

issue in October 2002. Any statement beyond that regard-

ing how many credits Respondent could have earned in

those eleven months is pure speculation, just as specula-

tive as the effect of the Sandin petitioner’s misconduct on

his chances of parole which this Court found “simply too

attenuated to invoke the procedural guarantees of the Due

18

Process Clause.” Sandin, 515 U.S. at 487, 115 S.Ct. at

2302.

D. The Tenth Circuit's decision may result in

serious repercussions if left unchecked.

Should the Tenth Circuit’s decision stand, Petitioner

asserts it may have the effect of conferring on inmates a

liberty interest where none has as yet been found, based

on the language of prison regulations. In addition to

contradicting Sandin in the manner discussed above, this

effect would also run afoul of this Court’s instruction that

prison regulations are “not designed to confer rights on

inmates” and “are not set forth solely to benefit the pris-

oner. They also aspire to instruct subordinate employees

how to exercise discretion vested by the State in the

warden, and to confine the authority of prison personnel in

order to avoid widely different treatment of similar inci-

dents.” Sandin, 515 U.S. at 482, 115 S.Ct. at 2299. See also

Town of Castle Rock, Colo. v. Gonzales, ___. U.S. ___, 125

S.Ct. 2796, 2808, 162 L.Ed.2d 658 (2005) (“Making the

actions of government employees obligatory can serve

various legitimate ends other than the conferral of a

benefit on a specific class of people.”) (citing Sandin, 515

U.S. at 482, 115 S.Ct. at 2299).

The foreseeable expansion of the Tenth Circuit’s

decision will result in requiring a hearing which complies

with due process in every situation in which an inmate is

° As shown in Part II, infra, the Tenth Circuit’s finding that the

disciplinary action inevitably affected the length of Respondent’s

sentence likewise presents a split among the circuits, which this Court

should take the opportunity to resolve.

19

reclassified to a different earned credit level. Petitioner

acknowledges that the Circuit Court’s decision attempts to

prevent such a result with the statement that Respondent

“lost more than a mere opportunity to earn credits upon

satisfactory completion of a job or program in the future.”

Wilson, 430 F.3d at 1121. Such a distinction will be one

without a difference, however, when Wilson is taken to its

logical conclusion. The reality is that each of the situations

cited by the Tenth Circuit, as well as Respondent’s situa-

tion, involves some triggering event, usually a finding by a

prison employee, which results in an inmate’s demotion.

The result that a hearing could eventually be required

with any reclassification is foreseeable, and strips the

“state officials trying to manage a volatile environment” of

the “appropriate deference and flexibility” this Court

directed federal courts to afford them. Sandin, 515 U.S. at

482, 115 S.Ct. at 2299 (citing Woi/ff, 418 U.S. at 561-63, 94

S.Ct. at 2977-78). Petitioner asserts that the Tenth Cir-

cuit’s decision reflects exactly the type of “involvement of

federal courts in the day-to-day management of prisons”

which “creates disincentives for States to codify prison

management procedures in the interest of uniform treat-

ment” about which this Court warned. Id.

—

II. THE TENTH CIRCUIT'S DECISION REPRE-

SENTS A SPLIT AMONG THE CIRCUITS AS IT

CONFLICTS WITH A DECISION OF THE FIFTH

CIRCUIT ON THE SAME IMPORTANT MATTER.

In addition to contradicting Sandin in the manner

discussed above, the Tenth Circuit’s finding that the

demotion inevitably affected the duration of Respondent’s

sentence likewise represents a split among the circuit

courts, as it conflicts with the Fifth Circuit’s decision in

20

Malchi v. Thaler, 211 F.3d 953 (5th Cir. 2000), on the same

important matter.

In Malchi, a Texas State inmate was convicted of a

misconduct in a prison disciplinary hearing and was

punished by a “30-day loss of commissary privileges, 30-

day cell restriction and the reduction of his good-time-

earning status”. Jd. at 955. The federal district court ruled

in favor of the inmate based on insufficient evidence to

support his misconduct conviction, and ordered the resto-

ration of the petitioner’s “time-earning status and all lost

good time resulting from the disciplinary conviction”. Id.

at 956. On appeal, the warden noted that the inmate’s

punishment did not include revocation of any previously

earned credits, but only reduced his status in earning such

credits, which delayed his projeeted release date on man-

datory supervision for more than six months. Jd. at 958.

The warden also argued that the inmate could have

“without reference to this or any other disciplinary action,

fail{ed] to earn the full measure of good-time credit avail-

able at [his former] status”, making his projected release

date too speculative. Id. The Fifth Circuit in Malchi noted

that an inmate’s “lalssignment to a particular time-

earning status depends on a wide variety of factors”, just

as it does in Oklahoma. Jd. at 959. In sharp contrast to the

Tenth Circuit’s decision in Wilson, after discussing Sandin,

the Fifth Circuit reversed the judgment of the federal

district court, holding that while the inmate’s status in

earning credits “is less attenuated from his mandatory

release than release on parole, we nonetheless conclude

that the timing of Malchi’s release is too speculative to

afford him a constitutionally cognizable claim to the ‘right’

to a particular time-earning status, which the Texas

legislature has specifi« .''y denied creating.” Id.

21

The Tenth Circuit’s conclusion in Wilson directly

conflicts with the Fifth Circuit’s decision in Malchi on a

materially indistinguishable factual situation. Moreover,

both circuit courts reached their decisions regarding the

existence of a liberty interest by relying on this Court’s

decision in Sandin. Wilson, 430 F.3d at 1120; Malchi, 211

F.3d at 959. Because these two circuit courts have relied

on the same decision of this Court to reach opposite

conclusions on the same important matter, this Court

should take this opportunity to resolve this split among

the circuits and find that a State prison inmate has no

liberty interest in the particular credit level to which he is

assigned. tes

,%

vv

CONCLUSION

For the reasons stated above, Petitioner respectfully

requests this Court grant the Petition for Writ of Certio-

rari.

Respectfully submitted,

W.A. DREW EDMONDSON

Attorney General of Oklahoma

JENNIFER B. MILLER, OBA# 12074*

Assistant Attorney General

2300 N. Lincoln Blvd., Room 112

Oklahoma City, Oklahoma 73105

(405) 521-3921 FAX (405) 521-6246

Attorneys for Petitioner

*Counsel of Record

App. 1

430 F.3d 1113

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

uARRY WILSON,

Petitioner-Appellant,

v. No. 02-6384

JUSTIN JONES, Director of

the Oklahoma Department of

Corrections; ATTORNEY

GENERAL OF THE STATE

OF OKLAHOMA,

Respondents-Appellees.*

APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

(D.C. No. CIV-02-0301-F)

(Filed December 7, 2005)

Vicki Mandell-King, Assistant Federal Public Defender

(Raymond P. Moore, Federal Public Defender, and Howard

A. Pincus, Assistant Federal Public Defender, on the

briefs), for Petitioner-Appellant.

Larry Wilson filed a brief pro se.

* Pursuant to FED.R.APP.P. 43(cX2), Justin Jones, Ron Ward’s

successor at the Oklahoma Department of Corrections, has been

automatically substituted as a party in this appeal.

App. 2

Keeley L. Harris, Assistant Attorney General (W.A. Drew

Edmondson, Attorney General of Oklahoma, and Kellye

Bates, Assistant Attorney General, with her on the briefs),

for Respondents-Appellees.

Before HENRY, HOLLOWAY, and LUCERO, Circuit

Judges.

HENRY, Circuit Judge.

Larry Wilson, an Oklahoma State inmate incarcerated

at the Great Plains Correctional Facility, appeals the

district court’s denial of his petition for a writ of habeas

corpus brought pursuant to 28 U.S.C. § 2241. Mr. Wilson

alleges that his due process rights were violated when a

Class X misconduct conviction caused him to be demoted

from a credit-earning prisoner to a non-credit-earning

prisoner because no evidence supported the misconduct

conviction. We agree with Mr. Wilson, and reverse and

remand for issuance of the writ. 3

I. BACKGROUND

Mr. Wilson’s problem began with what seems an

innocuous or even laudable action: he attempted to use his

mandatory savings account to pay for the costs associated

with copying the court documents he needed to pursue a

post-conviction proceeding. Because of that attempt, he

was charged with violating Oklahoma law, subjected to

prison disciplinary proceedings, and convicted of a Class X

misconduct. The Class X misconduct conviction triggered

App. 3

two automatic and mandatory consequences. First, Mr.

Wilson was demoted from a class-level-four prisoner,

earning 44 credits each month toward early release, to a

class-level-one prisoner, ineligible to earn any credits.

Second, the Class X misconduct made him ineligible for

promotion beyond level two, where he could earn only 22

credits each month, for a period of two years. To under-

stand fully the misconduct conviction and its effects on Mr.

Wilson, first we examine the Oklahoma law he was ac-

cused of violating, the details of the misconduct conviction

and its consequences, and how those consequences led to

Mr. Wilson’s petition in this court.

A. Oklahoma Law Regarding Use of Manda-

tory Savings Accounts

Prisoners in Oklahoma are required to keep a manda-

tory savings account, in which they must deposit twenty

percent of the wages they earn from prison employment.

They may only access the account to pay “fees or costs in

filing a civil or criminal action as defined in Section 151 et

seq. of Title 28 of the Oklahoma Statutes.” OKLA. STAT. tit.

57, § 549(A)(5) (2004). Section 151(A), in turn, provides

that district court clerks shall “charge and collect the fees

imposed by this title, [and] fines, costs and assessments

imposed by the district court or appellant courts.” OKLA.

STAT. tit. 28, § 151(A) (2004). Our court has recently con-

cluded that Oklahoma inmates can use mandatory savings

accounts to pay any fee, fine, cost or assessment imposed by

any section of Title 28 of the Oklahoma Statutes. Included

under Title 28 and payable by a mandatory savings

account are “photocopy charges imposed by a court clerk

for obtaining official records and transcripts.” Gamble v.

\

App. 4

Calbone, 375 F.3d 1021, 1029 (10th Cir. 2004) (citing OKLA.

STAT. tit. 28, § 31).

Despite the broad sweep of section 151(A) and the

inclusion of copying costs in Title 28, when Mr. Wilson

followed the usual procedures and requested, in writing

from the proper prison authorities, the release of $170

from his mandatory savings account to pay for copies of

proceedings in his criminal conviction for use in his post-

conviction appeal, the private prison officials charged him

with a Class X misconduct. Any violation of city, state, or

federal law constitutes a Class X misconduct, “the most

serious class of prison misconduct.” Gamble, 375 F.3d at

1025 n.4; Okla. Dep’t of Corr. (DOC) Policy OP-060125,

Attachment A. Here, prison officials accused Mr. Wilson of

violating OKLA. STAT. tit. 21, § 1541.1, which prohibits

obtaining money under false pretenses. The only evidence

for the charge was the written form Mr. Wilson had

submitted to prison officials. On the form, he requested

payment from his account “to attain transcripts and court

documents from Murray County Court Clerk.” Rec. vol. I,

doc. 2, Ex. B (Request to Staff, Oct. 9, 2001).

B. Misconduct Conviction and its Consequences

After a hearing, prison officials determined that Mr.

Wilson had violated section 1541.1 and punished him by

(1) revoking 180 of his earned credits and (2) imposing

thirty days’ disciplinary segregation. For reasons unclear

on this record, Mr. Wilson’s punishments were immedi-

ately suspended for 90 days. The State represented in its

supplemental brief that, because the 90 days expired

without incident, “the 180 credits can never be revoked.”

Aples’ Supl. Br. at 3 (Mar. 14, 2005).

App. 5

Pursuant to DOC policy, any Class X misconduct

conviction triggers certain “/mjandatory sanctions [that]

cannot be suspended.” Okla. DOC Policy OP-060125(IV)(E)

(emphasis added). Here, the Class X misconduct conviction

resulted in Mr. Wilson’s mandatory reclassification from a

class-level-four prisoner to a class-level-one prisoner, as

required by the Oklahoma DOC’s prisoner classification

procedures. Okla. DOC Policy OP-060107(I)(C)(2)(a)(5)

(stating that “[lJevel I assignment is mandatory .. . [u]pon

conviction for any misconduct, effective the date of the

misconduct”). While a class-level-four prisoner, Mr. Wilson

automatically earned 44 credits per month toward early

release, but as a class-level-one prisoner, Mr. Wilson was

statutorily ineligible to earn any credits. OKLA. STAT. tit.

57, § 138(D)(2).

Mr. Wilson was required to spend thirty days at level

one. Okla. DOC Policy OP-060107(I)(C)(6). After that time,

Mr. Wilson was promoted to level two, where he remained

for one year until he received another misconduct convic-

tion. Rec. vol. 1, doc. 10, Ex. A (Aples’ Resp. to Pet., filed

May 7, 2002); Aples’ Supl. Br., Ex. D.

Prisoners are automatically assigned to level two upon

reception into the prison system. Okla. DOC Policy OP-

060107(I(C)(2)(b). Ordinarily, an adjustment review |

committee of at least three prison officials reviews an

inmate’s classification at least once every four months to

determine whether a change in classification is necessary

because a prisoner has met (or failed to meet) certain

statutory criteria. OKLA. STAT. tit. 57, § 138(F). The statu-

tory classification system provides for classification

between levels one and four depending on the factors

listed in the statute, some of which are objective, such as

the length of incarceration, and some of which require an

App. 6

exercise of prison officials’ subjective judgment and discre-

tion, such as whether a prisoner’s hygiene has been

“outstanding” or merely “good.” See id. § 138(D)(3) & (4).

Once a prisoner is classified at a particular level, the

prisoner is statutorily entitled to earn a specified number

of credits. Jd. Regardless of whether Mr. Wilson continued

to meet the statutory criteria for promotion to levels three or

four, the Class X conviction caused Mr. Wilson to become

ineligible for promotion beyond class level two for a period of

two years. Okla. DOC Policy OP-060107(I(C)(2)(c) & (d);

Okla. DOC Policy OP-060103(a)(M).

C. Procedural History

As a result of the misconduct conviction and its

automatic, mandatory consequences, Mr. Wilson filed a pro

se petition for a writ of habeas corpus under 28 U.S.C.

§ 2241 to challenge the misconduct conviction. He con-

tends that the misconduct conviction violated his due

process rights because it was unsupported by evidence.

The magistrate judge recommended that Mr. Wilson’s

petition be denied because (1) Mr. Wilson never actually

lost any earned credits, and (2) the demotion in class level

did not implicate . constitutionally protected “liberty

interest sufficient to invoke the procedural protections of

the due process clause.” Rec. vol. I, doc. 12, at 4 (Rep. &

Rec., filed May 7, 2002). The district court adopted the

magistrate judges recommendation without further

opinion. Mr. Wilson then‘filed an application for a certifi-

cate of appealability (COA). See 28 U.S.C. § 2253. In 2003,

we granted Mr. Wilson’s application for a COA on three

issues: (1) whether Mr. Wilson properly exhausted his state-

court remedies; (2) whether his reclassification deprived

him of a constitutionally protected liberty interest; and

App. 7

(3) if so, whether the reclassification violated his due

process rights because there was insufficient evidence to

prove his alleged misconduct.

Subsequent to the district court’s decision, this court,

in Gamble v. Calbone, granted habeas relief to two prison-

ers from the same prison as Mr. Wilson, who had also been

convicted of the same Class X misconduct based on the

same “evidence” as Mr. Wilson. 375 F.3d 1021 (10th Cir.

2004). We ordered that the State provide additional

briefing in light of Gamble on the issue of whether Mr.

Wilson’s suspended punishment could ever be reinstated.

After receipt of the supplemental brief, we ordered oral

argument and the appointment of a federal public de-

fender to represent Mr. Wilson.

II. DISCUSSION

The Fourteenth Amendment prohibits states from

depriving citizens of liberty without due process of law.

Although their due process rights are defined more nar-

rowly, that guarantee applies to prisoners as well. Thus, in

Sandin v. Conner, 515 U.S. 472, 484, 487 (1995), the

Supreme Court concluded that a prisoner is entitled to due

process before he is subjected to conditions that “impose

atypical and significant hardship on the inmate in relation

to the ordinary incidents of prison life,” or disciplinary

actions that “inevitably affect the duration of his sen-

tence.” See also Talley v. Hesse, 91 F.3d 1411, 1414 (10th

Cir. 1996) (discussing these two ways of establishing a

liberty interest under Sandin ).

As a general rule, before officials may take actions

that affect these protected liberty interests, they must

afford a prisoner (a) advance written notice of the charges;

App. 8

(b) an opportunity, when consistent with institutional

safety and correctional goals, to call witnesses and present

documentary evidence in his defense; and (c) a written

statement by the factfinder of the evidence relied upon on

and the reasons for the disciplinary action. Superinten-

dent, Mass. Corr. Inst. at Walpole v. Hill, 472 U.S. 445, 454

(1985). In addition, the decision must be supported by

some evidence. Id.

In this appeal, Mr. Wilson contends that: (a) requiring

state-court exhaustion in this type of habeas appeal is

futile; (b) his Class X misconduct conviction inevitably

affected the length of his sentence and thus infringed a

liberty interest; and (c) no evidence supported that convic-

tion. As a result, he concludes, prison officials violated his

due process rights. Each of these issues involves questions

of law, and our review is thus de novo. See Gamble, 375

F.3d at 1027 (sufficiency of the evidence); Miller v. Men-

ghini, 213 F.3d 1244, 1246 (10th Cir. 2000) (exhaustion);

Harper v. Young, 64 F.3d 563, 566 (10th Cir. 1995) (exis-

tence of a liberty interest). For the reasons set forth below,

we are persuaded by Mr. Wilson’s arguments as to all

three issues.

A. Exhaustion of Remedies

A habeas petitioner seeking relief under 28 U.S.C.

§ 2241 is generally required to exhaust state remedies.

Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000).

However, that requirement is not applicable when the

prisoner has no adequate remedy such that exhaustion

would be futile. Gamble, 375 F.3d at 1026.

In Gamble, we explained that a prisoner “seeking

speedier ... release due to alleged errors in calculating

App. 9

earned or good-time credits does not have an adequate

habeas remedy under Oklahoma law, and that requiring

state exhaustion would be futile.” Jd. at 1026 (citing

Wallace v. Cody, 951 F.2d 1170, 1172 (10th Cir. 1991)).

Moreover, prisoners in Oklahoma cannot file a direct

judicial appeal to the state courts challenging a discipli-

nary board decision regarding their earned-credit status.

Id. (citing Canady v. Reynolds, 880 P.2d 391, 396-97 & n.4

(Okla. Crim. App. 1994)). As a result, we concluded that

the prisoners there were not required to seek relief in

state court, and we therefore proceeded to the merits of

their due process claims.

Here, the State conceded during oral argument that

Mr. Wilson has exhausted his administrative remedies,

and in its briefs, argued only that Mr. Wilson had not

exhausted his state-court remedies. Because of our holding

in Gamble that requiring state exhaustion is “futile,” Mr.

Wilson has satisfied all exhaustion requirements associ-

ated with this type of habeas claim and his petition is

properly before this court. Therefore, we proceed to the

merits of his due process claim. |

B. Liberty Interest

Invoking Sandin, Mr. Wilson argues that his Class X

misconduct conviction “inevitably affect[ed] the duration of

{his} sentence,” 515 U.S. at 487, and thus implicated a

liberty interest. He reasons that the conviction mandato-

rily reduced the rate at which he earned good time credits,

and argues that this impact was sufficient for this court to

grant relief in Gamble. In response, the State contends

that despite Mr. Wilson’s improper Class X misconduct

conviction, prison officials retained discretion to change

App. 10

his classification —- and the resulting rate at which he

would earn good time credits. According to the State, that

discretion demonstrates that the effect of the Class X

misconduct conviction was not inevitable and that, as a

result, no liberty interest was implicated. Resolution of

this issue requires an examination of Sandin, subsequent

decisions applying it, and other Tenth Circuit due process

cases.

1. Sandin

__ Sandin involved an inmate from Hawaii's state prison

who alleged that two misconduct convictions violated his

due process rights. 515 U.S. at 475-76. He was convicted of

one “high misconduct” and one “low moderate misconduct,”

and the high misconduct charge was later reversed and

expunged from his record. Jd. at 475-76, 487 n.10. The

Court noted that the Hawaii parole board was not required

to deny parole as a result of the misconduct charges: “even

though misconduct is by regulation a relevant considera-

tion, ... [t]he decision to release a prisoner rests on a

myriad of considerations.” Id. at 487. Therefore, the Court

reasoned, the misconduct conviction did not inevitably

affect the duration of the prisoner’s sentence: “[t]he chance

that a finding of misconduct will alter the balance is

simply too attenuated to invoke the procedural guarantees

of the Due Process Clause.” Jd. The Court implied that if

the parole board had been required to take particular

actions as a result of the misconduct charge, its decision

might have been different: “we note that Hawaii expunged

{the inmate’s] record with respect to the ‘high misconduct’

charge, so he personally has no chance of receiving a

delayed release as a direct result of that allegation.” Jd. at

487 n.10.

App. 11

As the Fifth Circuit has noted, “a host of administra-

tive or disciplinary decisions made by prison authorities

might somehow affect the timing of a prisoner’s release.”

See Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995). How-

ever, many of these decisions do not trigger the protections

of the due process clause. For example, applying Sandin, a

number of courts have concluded that a decision that a

particular prisoner is ineligible to participate in certain

programs does not implicate a protected liberty interest,

even though participation in those programs would have

provided him with an opportunity to earn good time

credits at a higher rate. In these courts’ view, the effect of

the challenged decisions on the length of the prisoner’s

sentence is “too attenuated” to implicate a liberty interest.

See, e.g., Zimmerman v. Tribble, 226 F.3d 568, 571-72 (7th

Cir. 2000) (holding that a prisoner’s transfer to a facility

that did not offer vocational training and substance abuse

programs did not implicate a liberty interest, even though

the transfer resulting in the loss of an opportunity to earn

good time credits); Higgason v. Farley, 83 F.3d 807, 809-10

(7th Cir. 1996) (holding that a prisoner’s placement in

segregation, which resulted in the loss of access to educa-

tional programs and the resulting opportunity to earn

good time credits did not implicate liberty interest, reason-

ing that “even if [the prisoner] has been given the oppor-

tunity, it was not inevitable that he would complete an

educational program and earn good time credits”); Bulger

v. U.S. Bureau of Prisons, 65 F.3d 48, 50 (5th Cir. 1995)

(holding that the loss of a prison job did not implicate a

prisoner’s liberty interest even though the prisoner lost

the ability to automatically accrue good-time credits).

App. 12

2. Tenth Circuit Decisions

This circuit has indicated that the connection between

a disciplinary decision and the length of a prisoner’s

sentence may be sufficient to establish a liberty interest

when the prisoner establishes that the decision was the

only factor that lengthened the sentence. See Reed v.

McKune, 298 F.3d 946, 954 (10th Cir. 2002) (noting that,

under Sandin, “deprivations of process impacting on

parole decisions may be ‘too attenuated to invoke the

procedural guarantees of the Due Process Clause,” but

that “[petitioner’s] claim that he is being denied parole

solely on the basis of his failure to participate in [a treat-

ment program] is not so attenuated” and that, as a result,

the petitioner “might, therefore, potentially state a due

process violation”) (quoting Sandin, 515 U.S. at 487)

(emphasis added).

We have also held that there are circumstances in

which the reduction of the rate at which a prisoner earns

good time credits may trigger due process protections. For

example, in Chambers v. Colorado Dep't of Corrections, 205

F.3d 1237, 1242 (10th. Cir. 2000), Colorado prison officials

classified the petitioner as a sex offender for five years but

then reduced the rate at which he earned good time credits

after he refused to participate in a treatment program. We

concluded that “(prison officials] provided [the petitioner]

[with] a liberty interest in the consequences of the manda-

tory label which they then arbitrarily removed without

affording him any opportunity to a hearing to challenge

the label.” Jd. at 1243 (emphasis deleted). We character-

ized “the consequences of the [sex offender] label,” (i.e., the

opportunity to earn good time credits at a higher rate) as

“a benefit that cannot be taken away without some proc-

ess.” Id.

App. 13

In Gamble we found due process protections impli-

- cated in circumstances closely resembling the facts here.

The petitioners, both inmates from the Great Plains

Correctional Facility, had attempted to use their manda-

tory savings accounts to pay for costs associated with the

appeals of their criminal convictions. Gamble, 375 F.3d at

1032. Like Mr. Wilson, the petitioners had been convicted

of a Class X law violation, “[o]btaining money under false

pretenses,” and the only evidence against each of them

was a copy of the inmates’ check requests. See id. at 1024-

25. Unlike Mr. Wilson, neither of the Gamble inmates’

punishments was suspended and both inmates lost earned

credits as a result of the misconduct conviction. However,

one of the petitioners had additionally complained that the

misconduct conviction resulted in his demotion from level

four to level one. Jd. at 1025.

We concluded that the Class X violation was sup-

ported by no evidence and that, as a result, the petitioners’

due process rights had been violated. See id. at 1031-32.

Significantly, as a remedy for this due process violation,

we directed prison officials to reverse the misconduct

convictions, expunge the convictions from the petitioners’

records, restore all earned credits that had been revoked,

and restore “their former statuses in earning credits.” Jd.

at 1032.

In Gamble, we did not discuss whether the revocation

of earned credits or the reduction in credit-earning status

(from level four to level one) implicated the petitioners’

liberty interests. “It is well settled” that an inmate must be

afforded due process prior to the revocation of his earned

credits. Mitchell v. Maynard, 80 F.3d 1433, 1444 (10th Cir.

1996). Mr. Wilson contends that, because we additionally

restored the prisoners’ pre-misconduct classification

App. 14

statuses in Gamble, we implicitly held that a prisoner’s

mandatory classification demotion constitutes a liberty

deprivation. Although we disagree with Mr. Wilson’s

characterization of our holding in Gamble, we believe that

the remedy we granted does assist our analysis of Mr.

Wilson’s claim under Sandin. Given that the Gamble

prisoners filed a § 2241 habeas petition, our restoration of

credit-earning status suggests that a demotion resulting

from a misconduct conviction has a direct, unattenuated

impact on the duration of a prisoner’s confinement. See 28

U.S.C. § 2241(cX3) (“The writ of habeas corpus shall not

extend to a prisoner unless ... fhle is in custody in viola-

tion of the Constitution or laws or treaties of the United

States”); see also McIntosh v. U.S. Parole Comm’n, 115

F.3d 809, 812 (10th Cir. 1997) (explaining that a habeas

vetition under § 2241 may be granted only if the chal-

lenged state action “affectled] the ... duration of the

petitioner’s custody”).

3. Mr. Wilson’s Misconduct Conviction

Upon review of Mr. Wilson’s Class X misconduct

conviction, we now expressly adopt the conclusion that

Gamble suggests and Sandin requires: the misconduct

conviction infringed a liberty interest because it reduced

his credit earning class in a manner that “inevitably

affect[ed] the duration of his sentence.” Sandin, 515 U.S.

at 487. As we have noted, as a direct result of the Class X

misconduct conviction, Mr. Wilson was automatically

demoted from a level-four credit earning classification to

level one. Moreover, Oklahoma DOC policy prohibited Mr.

Wilson from being considered for promotion beyond level

two for a period of two years. Prison officials exercised

absolutely no discretion over the imposition of these two

App. 15

punishments and had no discretion to allow Mr. Wilson to

avoid them. Okla. DOC Policies OP-060107(I)(C)(2)(a)(5);

OP-060107(IXC)\(2)(c) & (d); OP-060103(a)(M). Thus, Mr.

Wilson lost more than a mere opportunity to earn credits

upon satisfactory completion of a job or program in the

future. See Zimmerman v. Tribble, 226 F.3d at 571-72;

Higgason, 83 F.3d at 809-10; Bulger, 65 F.3d at 50.

That ‘ack of discretion contrasts markedly with the

discretionary effect on the prisoner’s chances of parole in

Sandin, where the disciplinary infraction was only one of

“a myriad of considerations,” 515 U.S. at 487, that could

affect whether the prisoner received an early release. In

Mr. Wilson’s case, the only consideration in his demotion

and prevention from promotion was the misconduct

conviction. These effects were not the result of prison

officials’ discretion after they considered a number of

factors; rather they occurred solely, automatically, and

mandatorily because of the misconduct conviction. This

“but for” causation is the kind of “direct result” that

Sandin requires for a disciplinary action to have an

inevitable effect on a sentence. See 515 U.S. at 487 n.10.

We find additional support for this conclusion in the

Seventh Circuit’s opinion in Montgomery v. Anderson, 262

F.3d 641 (7th Cir. 2001). There, the Seventh Circuit held

that Indiana prisoners are deprived of liberty when

demoted to a lower credit-earning status. The court cited

Supreme Court decisions holding that prisoners may have

a liberty interest in the expectation of parole where the

parole boards’ discretion is limited by mandatory language

in a statute or a regulation. Writing for the panel, Judge

Easterbrook analogized the opportunity to earn credits

toward early release to those parole cases, noting that “[a]

hope to be released before the expiration of one’s term on

App. 16

good-time credits is no different in principle from a hope to

be released on parole.” Id. at 645. Judge Easterbrook

examined the statute at issue and noted that it required

prisoners to be assigned to a credit-earning class unless

certain events occurred, thus “curtail[ing] administrators’

discretion and ... givling] prisoners more than a subjec-

tive hope of receiving day-for-day credit.” Id. The impact of

a demotion in class level on the prisoner’s sentence was

directly traceable and clearly evident: but for the demo-

tion, the prisoner would have continued to earn credits.

See id. Thus, the Indiana statute created a liberty interest.

4. The State’s Arguments

In maintaining that Mr. Wilson’s conviction did not

implicate a liberty interest, the State advances several

arguments. We find none of them persuasive.

First, the State notes that prison officials have discre-

tion to change an inmate’s classification status. It con-

tends that prison officials could have used that discretion

to change Mr. Wilson’s classification at any time and that,

as a result, the misconduct conviction did not inevitably

affect his sentence. In our view, the State ignores the fact

that Mr. Wilson’s conviction resulted in a mandatory

change in credit-earning status. In light of that mandatory

effect, the fact that prison officials have discretion to

change a prisoner’s classification when considering other

conduct is irrelevant. As Judge Easterbrook observed in

Montgomery, states have been held to create liberty

interests in the expectation of early release even where the

statute at issue “afforded plenty of discretion” to prison

administrators. Id.; see also Bd. of Pardons v. Allen, 482

U.S. 369, 375-76 (1987) (explaining that an official “has

App. 17

discretion if his duty is defined by standards that reason-

able [people] can interpret in different ways” and that “the

presence of official discretion in this sense is not incom-

patible with the existence of a liberty interest in parole

release when release is required after the Board deter-

mines (in its broad discretion) that the necessary prereq-

uisites exist”) (quotation marks omitted) (alteration in

original).

The State also directs us to a number of unpublished

cases in this circuit that are somewhat similar to Mr._

Wilson’s case, although all but one pre-date Gamble. Those

cases generally hold that a demotion in classification

status does not necessarily implicate a liberty interest.

Although we are not bound by these unpublished orders,

we believe that they are distinguishable from the present

case.

In Hudson v. Ward, the one post-Gamble case that the

State cites, the classification demotion did not occur

mandatorily as a result of a misconduct conviction but

rather resulted from an ordinary exercise of prison offi-

cials’ discretion. 124 F. App’x 599, 601-02 (10th Cir. Feb. 14,

2005) (unpublished); see also Smith v. Okla. Dep't of Corr.,

98 F.3d 1350 (10th Cir. Oct. 8, 1996) (unpublished) (hold-

ing that a loss of job for unsatisfactory performance, which

resulted in a demotion in credit-earning status, does not

implicate a liberty interest); Brown v. Champion, 61 F.3d

915 (10th Cir. July 24, 1995) (unpublished) (stating that

the reclassification that resulted from a misconduct

conviction was “entirely discretionary with prison offi-

cials”). Davis v. Ward presents a situation that is much

like Mr. Wilson’s case, but Davis was a pre-Gamble deci-

sion that could not take into account the published opin-

ion’s decision to restore prisoners’ former credit-earning

App. 18

statuses, nor did it consider the mandatory character of

the prison regulation that removes discretion from prison

officials." 92 F.App’x 634, 635-36 (10th Cir. Feb. 9, 2004)

(unpublished).

Finally, the State urges us to follow Templeman v.

Gunter, 16 F.3d 367 (10th Cir. 1994), a published case that

the magistrate judge cited in her recommendation that Mr.

Wilson did not suffer a liberty deprivation. Templeman

analyzed Colorado law and held that when a prisoner was

transferred to administrative segregation, he was not

deprived of a liberty interest because the regulation

governing such a transfer stated that transfer was within”

“the sound exercise of discretion by the classification

officer.” Id. at 369. The prison regulation listed a few

factors officials should consider prior to transfer, but

specified that “the list is not exhaustive and includes any

other reasons of similar magnitude deemed sufficient.” Jd.

(citation and quotation omitted). Again, because prison

officials had the discretion to reclassify the prisoner into

administrative segregation, and “[o]nce there, Templeman

did not meet the criteria for receiving earned time,” the

prisoner was not deprived of a liberty interest. Id. at 370.

Templeman is significantly different from the instant

case in several respects. First, Templeman analyzed an

* Another unpublished decision not cited by the State implied that

Gamble’s remedy should impact an analysis of whether a reclassifica-

tion that results from an improper misconduct conviction deprives a

prisoner of a liberty interest. See Cook v. Ward, 122 F.App’x 935, 937 n.5

(10th Cir. Dec. 14, 2004) (unpublished) (instructing prisoner to seek

“administrative relief with respect to retroactive reinstatement of level

4 credits” and noting that “in Gamble ... this court awarded a full

restoration of benefits upon a finding of the denial of due process and

no evidence to support misconduct convictions”).

App. 19

entirely different set of regulations than those that Okla-

homa prison officials use. Second, unlike in Colorado,

where officials had nearly unbridled discretion to transfer

the prisoner, Oklahoma’s prison officials must follow

statutory and regulatory criteria when deciding whether

to reclassify a prisoner. Finally, this court in Templeman

relied upon the fact that the Colorado officials “reasonably

concluded that inmates in administrative segregation do

not meet ... the criteria for receiving earned time.” Id.

Certainly prison officials’ exercises of discretion should

generally be respected, as “federal courts ought to afford

appropriate deference and flexibility to state officials

trying to manage a volatile environment.” Sandin, 515

U.S. at 482. Nonetheless, as we have repeatedly stressed,

Mr. Wilson’s reclassification did not occur because of an

exercise of discretion, but rather was an automatic and

mandatory sanction resulting from an erroneous miscon-

duct conviction.

Accordingly, following Sandin, and for the reasons

reviewed above, we hold that the Class X misconduct

inevitably affected the duration of Mr. Wilson’s sentence

and therefore deprived him of a liberty interest. Because of

this deprivation, we now examine whether the underlying

misconduct conviction comported with due process

C. Misconduct Conviction

The Supreme Court has instructed that, when review-

ing a prison disciplinary proceeding, courts should deter-

mine whether “any evidence in the record ... could

support the conclusion reached by the disciplinary board.”

Hill, 472 U.S. at 455-56. We applied this deferential

standard of review in Gamble and held that no evidence

App. 20

supported the petitioners’ misconduct convictions. After

examining section 1541.1, we concluded that, in order to

affirm the misconduct conviction for obtaining money by

false pretenses under the “any evidence” standard, “there

must be evidence that the inmates attempted to obtain

money by means of a trick, deception, or false representa-

tion. It is necessary that they knew it was a trick, decep-

tion, or false representation, and that they had the intent

to cheat and defraud.” Gamble, 375 F.3d at 1028.

The State has agreed that the decision in Gamble

controls here and has acknowledged that no evidence

exists to support Mr. Wilson’s conviction. We appreciate

this concession and hope that, in light of Gamble and the

instant matter, ths Oklahoma DOC will carefully oversee

disciplinary proceedings and review its policies for ambi-

guities and contradictions so that such clearly problematic

disciplinary actions are cured in an administrative setting,

as they should be. As we noted in Gamble, “(t]he inmates’

understanding that requesting disbursement from their

mandatory savings for the costs of obtaining their tran-

scripts was a legal request is justified under Oklahoma

case precedent and legislative history.” Id. at 1030.

The Oklahoma DOC policy in effect in 2001 regarding

‘the use of a mandatory savings account was contradictory

and confusing, especially in light of the state legislature’s

specific allowance for this one class of expenditures from

mandatory savings accounts.’ Indeed, amendments that

The policy stated correctly that “allowable fees are defined in

O.S. 28, Section 151 et seq” but later, narrowed the range of allowable

fees by calling them simply “filing fees,” implying that filing fees were

the only acceptable costs that could be paid from a mandatory savings

account. Okla. DOC Policy OP-120230.

App. 21

the state legislature made in 1995, permitting inmates to

use mandatory savings accounts for costs associated with

criminal cases and requiring courts to consider the avail-

ability of a mandatory savings account prior to granting in

forma pauperis, “‘compel[] a prisoner to weigh the validity

of a lawsuit against the cost of pursuing it.’” Jd. at 1031

(quoting Smith v. Moore, 50 P.3d 215, 218 n.4 (Okla.

2002)). The legislature’s policy makes good sense: it

alleviates public subsidization of court costs and deters

prisoners from filing frivolous lawsuits, as they must use

the small amount of savings they would have upon release

from prison to pay for costs associated with their appeals.

See id. Furthermore, “[iJt would make little sense to allow

savings account monies to be used to file a case and then

forbid their use to provide courts with materials useful in

resolving that case.” Jd. at 1033 (Henry, J., concurring).

Due process in a prison setting is very limited, but

some safeguards remain to ensure that the few rights

prisoners do retain are not violated by prison officials’

arbitrary exercise of their power. See Wolff v. McDonnell,

418 U.S. 539 (1974) (explaining that limited due process

rights apply in a prison disciplinary setting because “there

must be mutual accommodation between institutional

needs and objectives and the provisions of the Constitution

that are of general application”). Among these safeguards

is the requirement that disciplinary convictions that

mandatorily affect time served be supported by some

evidence, which is a minimal but nonetheless important

standard.

App. 22

iI. CONCLUSION

We hold that the State’s action here deprived Mr.

Wilson of a liberty interest because the mandatory and

automatic consequences of the Class X misconduct convic-

tion inevitably affected the duration of his sentence.

Therefore, Mr. Wilson’s due process rights were violated

when he was convicted of misconduct without any evi-

dence. The misconduct conviction must be reversed and

expunged from his record, and his former status in earn-

ing credits must be restored.

The judgement of the district court is REVERSED and

this matter is REMANDED for issuance of the writ.

App. 23

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

LARRY WILSON,

Petitioner-Appellant,

v.

JUSTIN JONES, Director of

the Oklahoma Department of

Corrections; ATTORNEY

GENERAL OF THE

STATE OF OKLAHOMA,

Respondents-Appellees.

No. 02-6384

ORDER

Filed March 23, 2006

Before HENRY, Circuit J udge, HOLLOWAY, Senior

Circuit Judge, and LUCERO, Circuit Judge.

The appellee’s petition for rehearing is denied by the

panel that rendered the decision.

The petition for rehearing en banc was transmitted to

all of the judges of the court who are in regular active

service. A poll was requested and a majority of the active

judges voted to deny rehearing en banc.

App. 24

Judges Tacha, Kelly, Briscoe, O’Brien, and Tymkovich

all voted to grant the petition.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk

by: /s/ [Ilegible]

Deputy Clerk

App. 25

IN THE UNITED STATES

DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

LARRY WILSON, )

Petitioner, .

vs. ) CIV-02-301-F

RON WARD,

Respondent.’ )

REPORT AND RECOMMENDATION

(Filed Nov. 7, 2002)

Petitioner, a state prisoner appearing pro se, brings

this action pursuant to 28 U.S.C. § 2241, seeking a writ of

habeas corpus. Pursuant to an order entered by United

States District Judge Stephen P. Friot, the matter has

been referred to the undersigned Magistrate Judge for

* Sam Calbone, Warden of the Great Plains Correctional Facility

(GPCF) where Petitioner is incarcerated, was named by Petitioner as

Respondent. GPCF, a private prison, is under contract with the

Oklahoma Department of Corrections (DOC) to house inmates. The

DOC bears responsibility for the “custody” and “supervision” of inmates

housed in private prisons. See Okla. Stat. tit. 57, § 561(A). Therefore,

Ron Ward, Director of DOC, who is the state officer having custody of

Petitioner, has been substituted as the proper respondent. See Rule 2,

Rules Governing Section 2254 Cases in the United States District

Courts.

* Petitioner initiated this action on a form for proceedings involv-

ing 28 U.S.C. § 2254. However, he recognizes in his brief that because

he is challenging the execution of his Oklahoma sentence, the action

arises under 28 U.S.C. § 2241 rather than § 2254. Montez v. McKinna,

208 F.3d 862, 865 (10th Cir. 2000); see also Hamm v. Saffle, 300 F.3d

1213, 1216 (10th Cir. 2002) (construing a challenge to disciplinary

sanctions “as a § 2241 petition”).

App. 26

initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B).

A response to the petition has been filed, and Petitioner

has replied. Thus, the case is at issue. For the reasons set

forth below, the undersigned recommends that the petition

be denied.

Petitioner is currently serving a twenty-year sentence

for first degree robbery in Case No. CRF-95-152, District

Court of Murray County. However, he is not challenging

either his conviction or sentence here. Rather, he contends

that his conviction of a prison misconduct violated his

rights under the First, Fifth, Sixth, and Fourteenth

Amendments.

Background

On October 24, 2001, Petitioner-was charged with a

disciplinary misconduct, specifically, a law violation —

obtaining money under false pretense in violation of Okla.

Stat. tit. 21, § 1541.1. Petitioner’s Brief in Support of

Petition for Writ of Habeas Corpus (Brief), Ex. C. Follow-

ing a hearing on November 2, 2001, Petitioner was found

guilty of the offense. Jd., Ex. F. As punishment for this

disciplinary offense, prison officials imposed sanctions of

30 days in disciplinary segregation and forfeiture of 180

days of earned credits with both sanctions suspended for

90 days. Id.

In a single ground for relief, Petitioner contends that

his due process rights have been violated because the

evidence was insufficient to prove the alleged offense.

According to Petitioner, the violation has “subject[{ed] [him]

to cruel and unusual punishment under the 8th Amend-

ment by having to serve a ‘lengthier’ prison sentence by

App. 27

being deprived of earned credits levels and earned cred-

its. ...” Petitioner’s Brief at 7.

Respondents contend that Petitioner has failed to

exhaust his available state court remedies, and alterna-

tively, that his claim lacks merit. For the reasons dis-

cussed more fully herein, the undersigned finds the

petition fails to allege a constitutional deprivation, and

recommends therefore that even if state remedies remain

available, the petition should be denied.

Discussion

Although § 2241 does not contain an express exhaus-

tion requirement, the Tenth Circuit has held that exhaus-

tion is generally required in actions arising under Section

2241. See Montez, 208 F.3d at 866 (“A habeas petitioner is

generally required to exhaust state remedies whether his

action is brought under § 2241 or § 2254.”) (citations

omitted); Hasson v. Williams, No. 00-2206, 2000 WL

1289132 (10th Cir. Sept. 13, 2000) (finding district court

properly dismissed § 2241 petition without prejudice for

failure to exhaust).’ Before a federal court may grant

habeas relief to a state prisoner, the prisoner must ex-

haust his remedies in state court. In other words, the state

prisoner must give the state courts an opportunity to act

on his claims before he presents those claims to a federal

court in a habeas petition.” O'Sullivan v. Boerckel, 526

U.S. 838, 842 (1999). In this circuit, a petitioner may

satisfy this requirement by showing either (1) “that a state

appellate court has had the opportunity to rule on the

* This and any other unpublished opinions cited herein are cited

for their persuasive value in accordance with Tenth Circuit Rule 36.3.

App. 28

same claim presented in federal court,” or (2) “that at the

time he filed his federal petition, he had no available state

avenue of redress.” Miranda v. Cooper, 967 F.2d 392, 398

(10th Cir.), cert. denied, 506 U.S. 924 (1992) (citation

omitted); see also Bear v. Boone, 173 F.3d 782, 785 (10th-

Cir. 1999) (“In order to fully exhaust state court remedies,

a state’s highest court must have had the opportunity to

review the claim raised in the federal habeas petition.”).

Petitioner ultimately bears the burden of showing that he

has exhausted available state remedies. Cooper v.

McKinna, No. 99-1437, 2000 WL 123753, at *1 (10th Cir.

Feb. 2, 2000).

Respondent acknowledges that Oklahoma case law

regarding the availability of a state court remedy for a

prisoner’s due process claim involving the right to have

some evidence support prison disciplinary findings consti-

tutes a “legal oddity.” Response at 4. Nonetheless, Respon-

dent asserts that a civil remedy is available to address

Petitioner’s claim. Specifically, Respondent contends the

Oklahoma Supreme Court has “filled the void” created by

the apparent lack of a remedy in the Oklahoma Court of

Criminal Appeals. Response at 5. Petitioner argues that no

remedy is available and that any further attempt to obtain

state relief would be futile.

The undersigned finds that it is ummecessary to

address the exhaustion issue because, as discussed hereaf-

ter, Petitioner has not shown the implication of a liberty

interest sufficient to invoke the procedural protections of

the Due Process Clause. Section 2241 relief is only avail-

able when a petitioner is in custody “in violation of the

Constitutional or laws or treaties of the United States.” 28

U.S.C. § 2241(c)(3). Because Petitioner has not alleged a

federal question cognizable in a federal habeas corpus

App. 29

action, his petition may be denied despite any alleged

failure to satisfy the exhaustion requirement. See 28

U.S.C. § 2254(b)(2) (“An application for a writ of habeas

corpus may be denied on the merits, notwithstanding the

failure of the applicant to exhaust the remedies available

in the courts of the State.”); see also Montez, 208 F.3d at

866 (“[B]ecause no credible federal constitutional claim is

raised in Montez’s petition, we conclude it is not inconsis-

tent with § 2241 or our habeas corpus precedent to follow

the policy of § 2254(b)(2) in this case).

It is well established that “[d]iscipline by prison

officials in response to a wide range of misconduct falls

within the expected perimeters of the sentence imposed by

a court of law.” Sandin v. Conner, 515 U.S. 472, 485 (1995).

Thus, not every punitive measure taken against a prisoner

invokes constitutional guarantees. In Wolff v. McDonnell,

418 U.S. 539 (1974), the Supreme Court recognized that

“[p]rison disciplinary proceedings are not part of a crimi-

nal prosecution, and the full panoply of rights due a

defendant in such proceedings does not apply.” Id. at 556.

Because the Constitution does not guarantee that an

inmate’s sentence will be reduced with credit for good

behavior or for any other reason, the Due Process Clause

does not require that any particular procedures be fol-

lowed in institutional disciplinary proceedings unless the

state itself has created an interest in sentence credits that

“has real substance and is sufficiently embraced within

Fourteenth Amendment ‘liberty’ to entitle [the inmate] to

those minimum procedures appropriate under the circum-

stances and required by the Due Process Clause to insure

that the state-created right is not arbitrarily abrogated.”

Id. at 557. If such a liberty interest in sentence credits has

been created by the state, “an inmate’s liberty interest in

App. 30

his earned good time credits cannot be denied ‘without the

minimal safeguards afforded by the Due Process Clause of

the Fourteenth Amendment.’” Mitchell v. Maynard, 80

F.3d 1433, 1445 (10th Cir. 1996) (citation omitted).

In Oklahoma, state law creates a liberty interest in

earned credits. See Okla. Stat. tit. 57, § 138(A); see also

Waldon v. Evans, 861 P.2d 311, 313 (Okla. Crimp. App.

1993) (“the State has created a liberty interest in earned

credits”). As a result, inmates who earn sentence credits

are entitlea to due process protection before such credits

may be taken away. Mitchell, 80 F.3d at 1445.

However, rather than actually having credits re-

moved, Petitioner was subjected only to potential punish-

ment as a result of the disciplinary infraction. The penalty

imposed, 30 days of disciplinary segregation and forfeiture

of 180 earned credits, was suspended for 90 days. See

Petitioner’s Brief, Ex. F. Moreover, the record shows that

the 180 earned credits were never actually deducted. See

Response, Ex. A, Petitioner’s Consolidated Record Card.

Because no earned credits were removed from Petitioner’s

sentence, Petitioner has not shown that the disciplinary

proceeding resulted in any violation of the Due Process

Clause. The Supreme Court in Sandin makes clear that

only disciplinary measures which “will inevitably affect

the duration of [the inmate’s] sentence” or “work a major

disruption in his environment” will be found to create a

liberty interest sufficient to invoke the procedural protec-

tions of the Due Process Clause. Sandin, 515 U.S. at 485-

87. Because no actual punishment was imposed upon Peti-

tioner, the disciplinary measures imposed at the hearing did

not either inevitably affect the duration of his sentence or

significantly change his prison environment. Consequently,

Petitioner has not shown that the suspended punishment

App. 31

implicated any liberty interest protected by the Due

Process Clause. See Ontiveors v. Jacobson, No. 94-4225,

1995, WL 257803, at *1 (10th Cir. May 3, 1995) (“The

[petitioners] suspended [disciplinary] sentence did -not

affect any conditions of confinement and we therefore hold

that it did not deprive [him] of a constitutionally protected

liberty interest.”); Tucker v. Scott, No. 91-7024, 1991 WL

99015, at *2 (10th Cir. June 6, 1991) (where Oklahoma

inmate’s earned credits were initially revoked but the

revocation was subsequently suspended, inmate’s claim of

due process violation in connection with the revocation of

his earned credits was moot); cf: Montgomery v. El Paso

County Sheriff’s Dep't, No. 97-1177, 1998 WL 104721, at

*2 (10th Cir. March 10, 1998) (finding no protected liberty

interest based on claim of denial of opportunity to earn

credit where prisoner failed to show inevitable effect on

the duration of his sentence).

Likewise, Petitioner’s complaint that his classification

level was reduced as a result of the disciplinary charge,

fails to raise a credible constitutional claim. Petitioner’s

consolidated record card shows that his classification level

was decreased to level one on October 24, 2001, when he

was charged with the misconduct. Response, Ex. A at 3.

Petitioner alleges that the misconduct security points

received from this offense will prevent his possible classifi-

cation advancement for two years. Petitioner’s Reply at 3.

In Oklahoma, the amount of earned credits that an inmate

may receive is determined by his or her placement in one

of four security classification levels. Okla. Stat. tit. 57,

§138. However, “[c]hanging an inmate’s prison classifica-

tion ordinarily does not deprive him of liberty, because he

is not entitled to a particular degree of liberty in prison.”

Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994).

App. 32

Oklahoma prisoners have no constitutional right to re-

main at any particular classification level, and no consti-

tutional liberty interest is implicated by an inmates’s

reclassification, even if the reclassification adversely

affects the opportunity to earn sentence credits. See

Sandin, 515 U.S. at 484 (state-created liberty interests

which are protected by the Due Process Clause “will

generally be limited to freedom from restraint which ...

imposes atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life[]”); Ander-

son v. Colo. Dep’t of Corrections, No. 98-1477, 1999 WL

387163 (10th Cir. June 14, 1999) (finding i>at the loss of

an opportunity to earn good time credits does not consti-

tute any atypical or significant hardship sufficient to

create a liberty interest and cannot amount to a violation

of due process) cert. denied, 528 U.S. 1165 (2000); Smith v.

Okla. Dep’t of Corrections, No. 96-7035, 1996 WL 576008

(10th Cir. Oct. 8, 1996) (“Oklahoma statute creating good

time credits does not bestow upon inmates a property or

liberty interest in the opportunity to earn those credits”);

Brown v. Champion, No. 95-5061, 1995 WL 433221 (10th

Civ. July 24, 1995) (Sandin makes clear that Oklahoma

inmate has no constitutionai liberty interest in reclassifi-

cation by prison officials, and even under pre-Sandin view,

the classification of Oklahoma inmates does not implicate

the Constitution because it is “entirely discretionary” with

Department of Corrections officials). The loss of an oppor-

tunity to earn sentence credits through security classifica-

tion level changes, such as that which occurred as a result

of Petitioner’s disciplinary conviction, simply does not

constitute an atypical or significant hardship upon an

Oklahoma inmate in relation to the ordinary incidents of

prison life. Thus, Petitioner had no constitutional right to a

App. 33

classification that would have allowed the earning of a

certain level of credits.

Because Petitioner has failed to allege a constitutional

deprivation, it is recommended that the petition be denied.

RECOMMENDATION

For the reasons set forth above, it is the recommenda-

tion of the undersigned Magistrate Judge that the petition

for a writ of habeas corpus be denied. Petitioner is advised

of his right to object to this Report and Recommendation

on or before the 27th day of November, 2002, in accor-

dance with 28 U.S.C. §636 and Local Civil Rule 72.1, by

filing his objections with the Clerk of this Court. Failure to

make timely objection to this Report and Recommendation

waives the right to appellate review of both factual find-

ings and the legal issues contained herein. Moore v. United

States, 950 F.2d 656, 659 (10th Cir. 1991). This Report and

Recommendation disposes of all issues referred to the

undersigned Magistrate Judge in the captioned matter.

The Court Clerk is direct to mail a copy of this Report and

Recommendation to Petitioner and to the Oklahoma

Attorney General on behalf of Respondent.

ENTERED this 7 day of November, 2002.

/s/ Bana Roberts

BANA ROBERTS

UNITED STATES

MAGISTRATE JUDGE

App. 34

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

LARRY WILSON, )

Petitioner, ;

vs. ) Case No. CIV-02-0301-F

RON WARD,

Respondent. )

ORDER

(Filed Nov. 21, 2002)

This matter comes before the court on Petitioner

Larry Wilson’s objections to the magistrate’s Report and

Recommendations. Petitioner’s Objection (docket no. 13)

was filed November 19, 2002. The Report and Recommen-

dation (“Report,” docket no. 12) which is the subject of that

Objection was filed November 7, 2002. The Report recom-

mends that Mr. Wilson’s petition for a writ of habeas

corpus be denied. The court considers the matter de novo.

The principal objection put forward by the petitioner

is his disagreement with the magistrate’s conclusion that

petitioner has not shown a liberty interest to be at stake

which is sufficient to invoke the procedural protections of

the due process clause. Specifically, petitioner argues that

his demotion to an earned credit class level one from

earned credit class level four is punishment which raises a

due process claim because that demotion ultimately

results in a lengthening of petitioner’s sentence. (Objec-

tion, pp.1-6.) Petitioner also argues that even if the magis-

trate’s conclusion that prison officials have discretion to

promote or demote inmates’ earned credit levels is correct,

App. 35

that discretion has been abused in his case. (Objection,

p.6.)

After considering petitioner’s objections, and after

conducting its own review of the Report, the exhibits cited

in the Report, the parties’ submissions, the balance of the

record, and the relevant legal authorities, the court finds

and concludes that it concurs with the magistrate’s deter-

minations. The court further finds that no purpose would

be served by repeating the magistrate’s determinations or

by presenting any additional analysis here.

Accordingly, the Report and Recommendation of

Magistrate Judge Bana Roberts is hereby AFFIRMED

and ADOPTED in its entirety. Petitioner’s Writ of Habeas

Corpus is DENIED.

Entered this 21st day of November, 2002.

/s/ Stephen P. Friot

STEPHEN P. FRIOT

UNITED STATES

DISTRICT JUDGE

App. 36

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

LARRY WILSON, )

Petitioner,

vs. ) Case No. CIV-02-0301-F

RON WARD, :

Respondent. )

JUDGMENT

(Filed Nov. 21, 2002)

In accordance with the court’s order of this date

denying petitioner Wilson’s writ of habeas corpus, judg-

ment is hereby rendered in favor of the respondent and

against the petitioner.

Entered this 21st day of November, 2002.

/s/ Stephen P. Friot

STEPHEN P. FRIOT

UNITED STATES

DISTRICT JUDGE