Johnson v. Booher

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
January 2, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
D O N A LD JO H N SO N ,
Petitioner–Appellant, No. 06-6171
v. (D.C. No. 05-CV-1424-C)
GLYNN BOOHER, W arden (W .D. Okla.)
Respondent–Appellee.
OR DER *
Before KELLY, M cKA Y, and LUCERO, Circuit Judges.
After examining Petitioner’s brief 1 and the appellate record, this panel has
determined unanimously to honor Petitioner’s request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f). The case is therefore ordered
submitted without oral argument.
Petitioner brings this pro se § 2241 appeal challenging his loss of earned
credits on the basis of denial of due process rights under the Fourteenth
*
This order is not binding precedent except under the doctrines of law of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 (eff. Dec. 1, 2006) and 10th
Cir. R. 32.1 (eff. Jan. 1, 2007).
1
Respondent did not file a brief in this appeal.
Amendment. 2 Petitioner argues that the prison disciplinary proceeding for
possession of contraband (a syringe) failed to consider potentially exculpatory
statements and violated the “some evidence” standard set by Superintendent v.
Hill, 472 U.S. 445, 454 (1985).
Petitioner must obtain a certificate of appealability in order to challenge the
district court’s denial of his habeas petition. See Montez v. M cKinna, 208 F.3d
862, 867 (10th Cir. 2000). To obtain a certificate of appealability, Petitioner
must make a “substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2) (2000). In order to meet this burden, Petitioner must
demonstrate “that reasonable jurists could debate w hether (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. M cDaniel, 529 U.S. 473, 484 (2000) (quotation omitted).
After carefully reviewing Petitioner’s brief, the m agistrate judge’s
comprehensive and well-reasoned report and recommendation, the district court’s
disposition, and the record on appeal, we find nothing that meets our standard for
the grant of a certificate of appealability. For substantially the reasons set forth
by the magistrate judge’s report and recommendation and by the district court’s
2
W e note that the district court correctly converted Petitioner’s action from
§ 2254 to § 2241. See M cIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th
Cir. 1997) (“[A] § 2241 action challenging prison disciplinary proceedings . . . is
challenging an action affecting the fact or duration of the petitioner’s custody.”)
orders, we D EN Y Petitioner’s request for a certificate of appealability and
DISM ISS the appeal. The petition to proceed in forma pauperis also is DENIED
for substantially the reasons provided by the district court.
Entered for the Court
M onroe G. M cKay
Circuit Judge