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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2006

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1064%3A1. Public record. Not legal advice.