Gamble v. Evans , 165 F. App'x 698 ( 2006 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 8, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
TIMOTHY SCOTT GAMBLE,
Petitioner - Appellant,
v. No. 05-6283
(D. Ct. No. CIV-04-1658-W)
EDWARD L. EVANS, Interim Director, (W.D. Okla.)
Oklahoma Department of Corrections,
Respondent - Appellee.
ORDER
Before TACHA, Chief Circuit Judge, HARTZ, and TYMKOVICH, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument.
Timothy Scott Gamble was convicted of the crime of murder in the first degree in
Oklahoma state court and was sentenced to life imprisonment. While incarcerated for that
offense, Mr. Gamble was charged with the prison misconduct offense of conspiracy to
introduce contraband into a penal institution. After a hearing conducted by the Oklahoma
Department of Corrections, Mr. Gamble was found guilty of the misconduct. As
punishment, certain good time credits Mr. Gamble earned were revoked.
Subsequently, Mr. Gamble filed a petition for a writ of habeas corpus under 28
U.S.C. § 2241, arguing that there was insufficient evidence to support the misconduct
conviction, and that he was therefore denied due process when his earned credits were
revoked and the offense was included in his record of incarceration. Edward Evans, the
interim director of the Oklahoma Department of Corrections, filed a motion to dismiss the
petition on the ground that Mr. Gamble was not entitled to federal habeas relief. The
District Court granted the motion, finding that as an inmate serving a life sentence, Mr.
Gamble did not have a liberty interest in the earned credits he seeks to recover and
therefore due process was not implicated when the credits were revoked.
The District Court also refused to grant a certificate of appealability (“COA”).
Although Mr. Gamble did not renew his request for a COA in this Court, we construe his
notice of appeal and accompanying brief as such a request. See United States v. Gordon,
172 F.3d 753, 753–54 (10th Cir. 1999). To obtain a COA the applicant must make “a
substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), by
demonstrating that the issues he seeks to raise are deserving of further proceedings, or
“reasonably debatable among jurists of reason,” see Montez v. McKinna, 208 F.3d 862,
869 (10th Cir. 2000).
Mr. Gamble first asserts that he has a liberty interest in his earned good time
credits, and because there was insufficient evidence brought forth in his misconduct
proceedings, he was denied the due process to which he is entitled when those credits were
revoked. To begin, it is well-established that “the requirements of procedural due process
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apply only to the deprivation of those interests encompassed by the Fourteenth
Amendment’s protection of liberty and property.” Bd. of Regents v. Roth, 408 U.S. 564,
569 (1972). It is also true that Oklahoma state law may create a liberty interest in earned
good time credits. See Waldon v. Evans, 861 P.2d 311, 313 (Okla. Crim. App. 1993).
Oklahoma law also mandates, however, that “no deductions shall be credited to any
inmate serving a sentence of life imprisonment.” See Okla. Stat. tit. 57, § 138(A). Mr.
Gamble is serving a life sentence. Therefore, despite the fact that Mr. Gamble has earned
good time credits, he is not entitled to use them for early release and accordingly enjoys no
liberty interest in them.
We confronted a similar issue in Stephens v. Thomas, 19 F.3d 498 (10th Cir. 1994).
In that case, we interpreted a New Mexico statute that forbade granting good time credits
to life-sentence prisoners before they had served ten years of their sentence. We held that
“[t]he revocation of good time credits from a life term prisoner who has served less than
ten years of his sentence . . . does not implicate the Due Process Clause.” Id. at 501.
Although this Court in a later, unpublished case, emphasized that due process generally
attaches when credits are revoked, it distinguished Stephens by noting that there, “the
inmates had no right to the credits in the first place.” Mayberry v. Ward, 43 F. App’x 343,
346 (10th Cir. 2002).
We face a situation similar to the one at issue in Stephens. Mr. Gamble has no
liberty interest in earned good time credits, and therefore he cannot show that reasonable
jurists could debate whether his right to due process was violated. Accordingly, Mr.
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Gamble is not entitled to a COA on this issue.
Next, Mr. Gamble argues that due process mandates the “bogus” conspiracy finding
be expunged from his record. Because Mr. Gamble has failed to explain how such action
would result in a shortened period of confinement, see Rhodes v. Hannigan, 12 F.3d 989,
991 (10th Cir. 1993) (stating that the remedy available in a habeas proceeding is
“immediate release or a shortened condition of confinement”), we do not consider this
issue further.
Because Mr. Gamble has failed to make a substantial showing of the denial of a
constitutional right, we deny Mr. Gamble’s request for a COA.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Chief Circuit Judge
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