Hammons v. Ward

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 10 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
MARVIN HAMMONS,
Petitioner-Appellant,
No. 02-6326
v. (D.C. No. 02-CV-543-F)
RON WARD, Warden, (W.D. Okla.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before TACHA, Chief Circuit Judge, McKAY and PORFILIO, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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.
This is a pro se 28 U.S.C. § 2241 state prisoner appeal. 1 Mr. Hammons, a
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1
The Petition was filed on a form for 28 U.S.C. § 2254 petitions. However,
since Petitioner is challenging the execution of his sentence and not the
conviction and sentence itself, his Petition is construed as a Petition for a Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241. See McIntosh v. United States
(continued...)
prisoner incarcerated at the Great Plains Correctional Facility in Oklahoma, was
charged with disciplinary misconduct for obtaining money from his inmate
mandatory savings account under false pretenses. Mr. Hammons was found guilty
of the offense and disciplined. After exhausting his administrative remedies, Mr.
Hammons filed a petition in the district court alleging that there was no evidence
to support the disciplinary conviction. The district court denied the petition, and
Mr. Hammons applied to this court for a certificate of appealability.
In order for this court to grant a certificate of appealability, Petitioner must
make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To do so, Petitioner 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) (citations and internal quotations omitted).
We will not disturb disciplinary actions by prison administrators so long as
there is “some evidence” to support the action. Superintendent, Mass. Corr. Inst.
v. Hill, 472 U.S. 445, 455 (1985). Such a review does not require “examination
of the entire record, independent assessment of the credibility of witnesses, or
1
(...continued)
Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997).
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weighing of the evidence.” Id. We must merely determine “whether there is any
evidence in the record that could support the conclusion reached by the
disciplinary board.” Id. at 455-56.
Oklahoma law provides that funds from an inmate’s mandatory savings
“account may be used by the inmate for fees or costs in filing a civil or criminal
action . . . .” Okla. Stat. tit. 57, § 549(A)(5) (2003). The record indicates that
Mr. Hammons requested that a check for $400.00 be issued from his account to
pay fees charged by the Court Clerk for the District Court of Oklahoma County
for photocopying various documents in connection with Mr. Hammons’ state
court criminal proceeding. Such costs are not associated with the filing of a civil
or criminal action. Accordingly, we find that the disciplinary action was
supported by “some evidence.”
We have carefully reviewed Mr. Hammons’ brief, the district court’s
disposition, the magistrate judge’s report and recommendation, and the record on
appeal. Nothing in the facts, the record on appeal, or Mr. Hammons’ brief raises
an issue which meets our standards for the grant of a certificate of appealability.
Therefore, for substantially the same reasons as set forth by the district court in
its Order of October 4, 2002, we cannot say “that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in
a different manner.” Id.-3-
We DENY Petitioner’s request for a certificate of appealability and
DISMISS the appeal. Appellant’s motion to proceed in forma pauperis on appeal
is GRANTED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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