                                                                             FILED
                                                United States Court of Appeals
                    UNITED STATES COURT OF APPEALS      Tenth Circuit

                                                                     December 13, 2007
                                 TENTH CIRCUIT
                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court
 PATRICK JOSEPH TERRY,
              Petitioner-Appellant,                        No. 07-6099
 v.                                                 (D.C. No. 06–CV–840–F )
 JUSTIN JONES; ATTORNEY                                    (W.D. Okla. )
 GENERAL OF THE STATE OF
 OKLAHOMA,
              Respondents-Appellees.


                                       ORDER *


Before BRISCOE, McKAY, and McCONNELL, Circuit Judges.


      Pro se petitioner Patrick Joseph Terry, an Oklahoma state inmate, seeks a

certificate of appealability to appeal the district court’s denial of his petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2241. After a prison disciplinary

hearing, Petitioner was found guilty of possessing drugs not prescribed by

medical staff, which resulted in his losing 365 good time credits and affected his

classification level. The district court adopted the magistrate judge’s report and

recommendation and denied Petitioner’s habeas petition. The district court also

denied Petitioner’s application for a temporary restraining order. Petitioner now


      *
        This order is not binding precedent, except under the doctrines of law of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.
brings this appeal seeking a certificate of appealability. 2

      Petitioner must obtain a certificate of appealability to challenge the district

court’s denial of his habeas corpus petition. See Montez v. McKinna, 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) (2006). To meet this burden, 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 issues presented

were adequate to deserve encouragement to proceed further.” Slack v. McDaniel,

529 U.S. 473, 484 (2000) (internal quotation marks omitted).

      Prisoners possess a liberty interest in their statutorily provided good time

credits. See Wolff v. McDonnell, 418 U.S. 539, 557 (1974); see also Brown v.

Smith, 828 F.2d 1493, 1494 (10th Cir. 1987). The government may not deprive a

prisoner of those credits without due process. Id. However, “[p]rison

disciplinary proceedings are not part of a criminal prosecution, and the full


      2
        In his brief on appeal, Petitioner alleges the district court improperly: (1)
deprived him of due process, (2) concluded there was sufficient evidence for the
disciplinary findings, (3) concluded Petitioner had no valid equal protection claim
under the Fourteenth Amendment, (4) considered Petitioner’s significant
hardship, (5) concluded the disciplinary hearing was conducted properly, (6)
denied Petitioner’s request for discovery, (7) dismissed Petitioner’s claim for
relief under Oklahoma law, Okla. Stat. tit. 57, § 564.1 (2007), and (8) dismissed
Petitioner’s application for a temporary restraining order without allowing for an
answer.


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panoply of rights due a defendant in such proceedings does not apply.” Wolff,

418 U.S. at 556. The decision to revoke a prisoner’s good time credits need only

be supported by “some evidence,” even if that evidence might be characterized as

meager. Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455,

457 (1985). “Ascertaining whether this standard is satisfied does not require

examination of the entire record, independent assessment of the credibility of

witnesses, or weighing of the evidence. Instead, the relevant question is whether

there is any evidence in the record that could support the conclusion reached by

the disciplinary board.” Id. at 455–56. “The fundamental fairness guaranteed by

the Due Process Clause does not require courts to set aside decisions of prison

administrators that have some basis in fact.” Id. at 456. Only if the record is

devoid of evidence, providing no support for a disciplinary board’s decision,

would a decision to revoke good time credits violate due process. See id. at 457.

      In Hill, three inmates lost their good times credits for allegedly assaulting a

fellow inmate. Id. at 447–48. Two of the inmates claimed innocence at their

disciplinary hearing, and the assaulted inmate gave written statements claiming

none of the three inmates under scrutiny had caused his injuries. Id. at 448.

However, the disciplinary board received evidence from a prison guard stating he

discovered the lone, assaulted inmate with only three inmates nearby fleeing in

plain view. Id. at 456. Even though there was evidence pointing to the inmates’

innocence, the inmates lost their good time credits. Id. at 448. After multiple

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state court appeals and on a writ of certiorari from the Massachusetts Attorney

General, the Supreme Court ultimately upheld the prison officials’ decision to

revoke the inmates’ good time credits because the record included some evidence

supporting the outcome, even though it was meager. Id. at 457.

      In the instant case, the prison initiated a disciplinary proceeding against

Petitioner because a prison official found two packs of rolling papers, two bags of

tobacco, two Stacker 2 pills, one Neurontin, one Baclofen, one small white pill,

and one small pink pill in Petitioner’s cell. If liberally construed, see Hunt v.

Uphoff, 199 F.3d 1220, 1223 (10th Cir. 1999), Petitioner argues that he is

factually innocent because he had a prescription for the Neurontin and Baclofen

pills and possibly had prescriptions for the other unidentified pills and thus could

not be convicted under Section 09-3. A conviction under Section 09-3 requires:

      Possession/introduction of any drug, narcotic, intoxicant, chemical,
      to include paperwork or documentation containing information for
      the manufacture of intoxicants/drugs/illegal substances, drug
      paraphernalia, not prescribed by medical staff, or failure to take
      medication as prescribed.

Department Inmate Disciplinary Procedures, OP-060125, § 09-3, available at

http://www.doc.state.ok.us/offtech/060125aa.pdf.

      Petitioner misunderstands the nature of our review. We uphold a

revocation of good time credits where there is some evidence to support the

disciplinary findings at the time. Even if Petitioner could now prove he had

prescriptions for the unidentified pills, that evidence was not on the record when

                                          -4-
the prison officials were making their decision to revoke his good time credits. In

fact, there was evidence on the record that a prison nurse “stated she could not

[identify] the small white or pink pill” and that Petitioner “did not have a

prescription for these pills.” (R. Doc. No. 8, Petr.’s App. III, Attach. B.) As in

Hill, we need only examine whether the prison officials found some evidence to

support their disciplinary findings. Here, the record at the disciplinary hearing

did not include Petitioner’s actual prescription information. However, prison

officials did have two reporting officers’ statements of items they discovered

during a “shakedown” of Petitioner’s cell and the nurse’s statement. These

statements meet our standard of some evidence. The findings were not arbitrary.

      We have carefully reviewed Petitioner’s brief, the magistrate judge’s report

and recommendation, the district court’s rulings, and the record on appeal. We

find both as to the claim of factual innocence and the balance of his claims on

appeal nothing that meets our standard for granting a certificate of appealability.

For substantially the reasons set forth in the magistrate judge’s report and

recommendation and in the district court’s orders, we DENY Petitioner’s request

for a certificate of appealability and DISMISS the appeal.

                                                Entered for the Court



                                                Monroe G. McKay
                                                Circuit Judge


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