Knox v. Sharp ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 25, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
ANTONE LAMANDINGO KNOX,
Petitioner - Appellant,
v. No. 20-7014
(D.C. No. 6:19-CV-00050-RAW-KEW)
TOMMY SHARP, Warden, (E.D. Okla.)
Respondent - Appellee.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.
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Pro se petitioner Antone Knox seeks a certificate of appealability (“COA”) to
appeal the district court’s denial of his 28 U.S.C. § 2241 petition. We deny a COA
and dismiss the appeal.
I
Knox, a state prisoner in the custody of the Oklahoma Department of
Corrections (“DOC”), is serving a five-year term of imprisonment for possession of
contraband in a state penal institution and a two-year term of imprisonment for
assault on a DOC employee. In a prison disciplinary proceeding, he was found guilty
*
This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
of “making false allegations.” The sanction imposed was “120 visitation,” “120
telephone,” and “120 canteen.”
Knox filed a § 2241 petition asserting that he was wrongfully convicted of
making a false complaint pursuant to the Prison Rape Elimination Act and that he is
being illegally restrained. The district court denied the petition for several reasons:
Knox had not shown that his conviction resulted in a loss of earned credits, he had
not exhausted state court remedies, and he failed to make a substantial showing of the
denial of a constitutional right. The district court declined to grant a COA. Knox
now seeks a COA from this court.
II
Because Knox proceeds pro se, we “liberally construe his pleadings,” Requena v.
Roberts, 893 F.3d 1195, 1205 (10th Cir. 2018), but “do not assume the role of advocate,”
Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008) (quotation omitted). “[A]
state prisoner must obtain a COA to appeal the denial of a habeas petition, whether such
petition was filed pursuant to § 2254 or § 2241.” Montez v. McKinna, 208 F.3d 862, 867
(10th Cir. 2000). We may issue a COA “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this
showing, Knox must demonstrate “that reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted).
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“A threshold question that must be addressed in every habeas case is that of
exhaustion.” Harris v. Champion, 15 F.3d 1538, 1554 (10th Cir. 1994). Although “no
statutory exhaustion requirement applies to petitions filed pursuant to § 2241, it is well-
settled that claims raised in § 2241 petitions must be exhausted before a federal court will
hear them.” Burger v. Scott, 317 F.3d 1133, 1144 n.8 (10th Cir. 2003). The district court
dismissed Knox’s petition because although he had filed an action in state court relating
to the allegedly wrongful disciplinary action, the Oklahoma Court of Criminal Appeals
(“OCCA”) had not issued a ruling in that case by the time the district court made its
ruling in this case.
We take judicial notice of the OCCA’s subsequent denial of Knox’s requested
relief. See Knox v. Fudge, No. REC-2019-388 (Okla. Crim. App. Apr. 9, 2020),
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=REC-
2019-388&cmid=126338; Green v. Nottingham, 90 F.3d 415, 418 (10th Cir. 1996)
(“[F]ederal courts may take notice of judicial proceedings in other courts if they have a
direct relation to matters at issue.” (citing St. Louis Baptist Temple, Inc. v. F.D.I.C., 605
F.2d 1169, 1172 (10th Cir. 1979))). Although Knox had not exhausted state court
remedies when he filed his habeas petition, we may consider the merits of his claim
because he has since done so. See Osborn v. Shillinger, 861 F.2d 612, 616 (10th Cir.
1988) (“An appellate court may give relief if state remedies are exhausted by the time it
acts, even if those remedies were not exhausted when the habeas corpus petition was
filed.” (alteration and quotation omitted)), abrogated on other grounds by Harris v. Reed,
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489 U.S. 255 (1989), as recognized by Shafer v. Stratton, 906 F.2d 506, 509 (10th Cir.
1990).
We turn to the merits of Knox’s claim. “Habeas corpus review is available
under § 2241 if one is ‘in custody in violation of the Constitution or laws or treaties
of the United States.’” McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811 (10th
Cir. 1997) (quoting § 2241(c)(3)). “[A] § 2241 attack on the execution of a sentence
may challenge . . . deprivation of good-time credits and other prison disciplinary
matters.” Id.; see also Brown v. Smith, 828 F.2d 1493, 1495 (10th Cir. 1987). In
Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court held that prisoners are
entitled to due process before being subjected to either an “atypical, significant
deprivation in which a State might conceivably create a liberty interest” or a
disciplinary action that “inevitably affect[s] the duration of his sentence.” Id. at 486,
487.
Knox has not shown that the DOC violated his constitutional rights in
connection with his disciplinary proceedings. He does not contend that a due process
liberty interest is implicated by the loss of visitation, telephone, or canteen privileges.
Nor do such sanctions inevitably affect the duration of a prison sentence. Moreover,
as the district court noted, Knox did not “claim his conviction resulted in a loss of
earned credits.” Although his opening brief on appeal mentions revocation of earned
credits, he did not raise this issue below. Accordingly, we do not consider it. See
United States v. Viera, 674 F.3d 1214, 1220 (10th Cir. 2012). We conclude that
Knox has not made a substantial showing of the denial of a constitutional right.
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III
For the foregoing reasons, we DENY a COA and DISMISS the appeal.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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