                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                   UNITED STATES COURT OF APPEALS December 4, 2013

                                TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                    Clerk of Court


 EDWARD LEE BILLEY,

              Petitioner - Appellant,                   No. 13-6153
                                                (D.C. No. 5:12-CV-00354-M)
 v.                                                    (W.D. Okla.)
 JUSTIN JONES,

              Respondent - Appellee.


                           ORDER DENYING
                    CERTIFICATE OF APPEALABILITY *


Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.



      Petitioner and pro se appellant, Edward Lee Billey, a state prisoner within

the Oklahoma Department of Corrections, seeks a certificate of appealability

(“COA”) to enable him to appeal the denial of his petition under 28 U.S.C.

§ 2241. His petition challenged prison disciplinary convictions which resulted in

the loss of good time credits. Concluding that Mr. Billey has not met the

requirements for issuance of a COA, we deny him a COA and dismiss this matter.




      *
       This order is not binding precedent, except under the doctrines of law of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.
      In May 2011, prison guards found Mr. Billey in possession of three items

of contraband: a $100 bill, THC (the active ingredient in marijuana), and

tobacco. He was charged separately for each item and given notice, a hearing, an

opportunity to be heard and present evidence at the hearing, and a statement of

the evidence against him. On the evidence presented, Mr. Billey was found guilty

of each charge and sanctioned with a loss of 60 earned credits for the $100 bill

and a $5.00 fine was imposed for possessing the tobacco. For possessing the

THC, he lost 365 earned credits, was given 30 days in segregation, and was

demoted to level 1 for 90 days.

      Subsequently, Mr. Billey filed the instant petition seeking to have the THC

and tobacco convictions expunged. See Brown v. Smith, 828 F.2d 1493, 1495

(10th Cir. 1987) (§ 2241 habeas petition is appropriate means by which to restore

good-time credits). 1 His petition raises two arguments. First, he argues that since

the contraband in question all related to a single encounter in the visiting room,

prison authorities were prohibited by Department of Corrections policy from

charging three separate infractions of the rules, and that doing so constituted


      1
        In the face of an assertion that Mr. Billey failed to object to the Second
Report and Recommendation of the magistrate judge, thus waiving the right to
appellate review, our court directed Mr. Billey to file a memorandum brief
addressing the issue. Based on Mr. Billey’s submissions, including a reference to
the district court docket showing that the Report and Recommendation was not
served on him, we apply the “interests of justice” exception to the waiver rule and
elect to address this appeal. See, e.g., Tesoro v. Colorado, No. 97-1048, 1997
WL 787173 (10th Cir. Dec. 23, 1997) (unpublished).

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impermissible “stacking” in violation of the Due Process clause. Second, he

argues in his petition that there was insufficient evidence to support his

conviction for possessing THC, in violation of his procedural due process rights.

      The latter contention, relating to Mr. Billey’s procedural due process rights,

was dismissed by the district court, and that dismissal is not appealed.

Accordingly, we address only the first issue — “stacking.”

      Mr. Billey argues in his petition that:

              In OK. DOC Policy, OP-060125.II.A.2.b., it specifically states
      that if the offender is found with several items of contraband, that he
      would ONLY be charged with one rule violation of possession of
      contraband, and to list all of the items seized. In other words, this
      Petitioner should’ve, as a matter of due process of law, received just
      one conviction for possession of contraband, and NOT three.

Petition at 5A, R. Vol. 1 at 9 [emphasis in original].

      This reference to the provision contained in the “Department Offender

Disciplinary Procedures,” OP-060125, II.A.2.b., comes with some editorial

license on Mr. Billey’s part. The subsection in question, in effect at the time of

these offenses, provides as follows:

      Sequential infractions may be the basis for additional charges and
      sanctions. Sequential is defined as the following of one thing after
      another. For example, if the offender is found with several items of
      contraband the offender would be charged with the rule violation of
      possession of contraband and list all the seized items as evidence. . . .

Okla. Dep’t of Corr. Offender Disciplinary Procedures, OP-060125, § II.A.2.b.

(2010).


                                          -3-
      Nothing in that subsection establishes constitutional rights of any kind for

prisoners, least of all Federal constitutional immunity from separate prison

discipline for all items of contraband possessed at one time, after a charge for the

first item. Prison regulations such as the one here are “primarily designed to

guide correctional officials in the administration of a prison. [They are] not

designed to confer rights on inmates.” Sandin v. Conner, 515 U.S. 472, 481-482

(1995). The loss of earned time credits was, as indicated above and as found by

the magistrate judge, imposed following process due according to the requirements

of Wolff v. McDonnell, 418 U.S. 539 (1974), and Superintendent, Massachusetts

Correctional Institution, Walpole v. Hill, 472 U.S. 445, 454-57 (1985). And, the

short period of segregation and demotion to level 1 were not atypical forms of

prison discipline. See Sandin, 515 U.S. 484.

      To obtain a COA, Mr. Billey must make “a substantial showing of the denial

of a constitutional right,” 28 U.S.C. § 2253(c)(2), such 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) (internal quotation marks and citation omitted). Based upon our review of

the record, we conclude that he has failed to make such a showing.




                                          -4-
      For the foregoing reasons, we DENY a COA, DENY Mr. Billey’s request to

proceed on appeal in forma pauperis, and DISMISS this matter.

                                            ENTERED FOR THE COURT


                                            Stephen H. Anderson
                                            Circuit Judge




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