Franklin v. Horton

Appellate Case: 22-2030 Document: 010110697147 Date Filed: 06/15/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 15, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
BRYCE FRANKLIN,
Plaintiff - Appellant,
v. No. 22-2030
(D.C. No. 1:19-CV-00450-MIS-KRS)
FNU HORTON, Warden; HECTOR H. (D. N.M.)
BALDERAS, Attorney General for the
State of New Mexico,
Defendants - Appellees.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before PHILLIPS, MURPHY, and EID, Circuit Judges.
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Bryce Franklin, a New Mexico state prisoner proceeding pro se, requests a
certificate of appealability (“COA”) to appeal the dismissal of his 28 U.S.C. § 2241petition.1 Because the district court’s ruling is not reasonably debatable, we deny a COA
and dismiss the appeal.
*
This order is not binding precedent except under the doctrines of law of the case,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.
1
Franklin styled his petition as one brought under 28 U.S.C. § 2254. But the
district court correctly construed it as a § 2241 petition because it attacks the execution of
his sentence. See United States v. Furtnan, 112 F.3d 435, 438 (10th Cir. 1997).
Appellate Case: 22-2030 Document: 010110697147 Date Filed: 06/15/2022 Page: 2
To appeal the dismissal of a § 2241 petition, a state prisoner must obtain a COA.
Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000). We will issue a COA only if the
prisoner shows “that jurists of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted).
Franklin argues that his due process rights were violated during a prison
disciplinary proceeding for possessing tattoo paraphernalia. Specifically, he argues that
(1) there was insufficient evidence to support a finding of wrongdoing, and (2) he was
prohibited from calling a witness (a fellow prisoner) who could have allegedly provided
favorable testimony.
The district court, and the magistrate judge for that matter, thoroughly examined
both arguments. After providing detailed reasoning, it concluded that Franklin’s due
process rights were not violated. On appeal, Franklin fails to adequately identify any
errors in the district court’s analysis. Nor do we see any. So, because the district court’s
ruling is not fairly debatable, we deny a COA and dismiss the appeal.2
Entered for the Court
Gregory A. Phillips
Circuit Judge
2
We grant Franklin’s motion to proceed in forma pauperis, but we remind him
that he must make partial payments until the fee is paid in full.
2