                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                         April 12, 2007
                                  TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                         Clerk of Court

 JOHN CHARLES GAU THIER,

       Petitioner - A ppellant,
                                                         No. 06-7102
 v.                                               (D.C. No. CIV-05-203-FHS)
                                                         (E.D. Okla.)
 HASK ELL HIGGINS, W arden,

       Respondent - Appellee.



                              ORDER
               DENYING CERTIFICATE O F APPEALABILITY


Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.


      Petitioner-A ppellant John Charles G authier, a paroled state inmate

appearing pro se, appeals from the denial of his petition for habeas corpus

pursuant to 28 U.S.C. § 2241. M r. Gauthier’s petition alleged that the Oklahoma

Department of Corrections (ODOC) violated his due process rights by transferring

him to a different facility at a lower classification level, without a hearing, in

retaliation for a civil rights lawsuit he has filed against ODOC officials. The

district court denied the petition, holding that M r. Gauthier was not entitled to a

hearing before his transfer or change in classification level. It further held that

M r. Gauthier could not factually establish that his civil rights lawsuit was the but-

for cause of his transfer and classification reduction. W e construe M r. Gauthier’s
appeal as a request for a Certificate of Appealability (CO A), see Fed. R. App. P.

22(b), which is a prerequisite for reviewing the denial of a state prisoner’s habeas

corpus petition, see M ontez v. M cKinna, 208 F.3d 862, 867-68 (10th Cir. 2000).

Having concluded that M r. Gauthier cannot make “a substantial showing of the

denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we deny a COA and

dismiss his appeal.



                                    Background

      At the time his habeas petition was filed, M r. Gauthier was incarcerated at

the Howard M cLeod Correctional Center in Atoka, Oklahoma. M r. Gauthier

began serving his sentence in August of 2003, and he immediately began earning

“good time” credits for his good behavior while in custody. He soon qualified

himself for a Level IV classification, which entitled him to–among other

things–the highest inmate pay grade, enhanced telephone privileges, and the

opportunity to earn up to 60 good time credits per month of incarceration. See R.

Doc. 8 Ex. 8, at 11.

      On January 21, 2005, correctional officers conducted a search of M r.

Gauthier’s cell. They discovered legal materials belonging to M r. Gauthier and

several other inmates as well as legal documents bearing the name of Correctional

Officer D on W illiams. See R. Doc. 8 Ex. 5. ODOC officials considered it

inappropriate for an inmate to assist an officer with legal work because it could

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affect the officer’s impartiality or give the inmate undue influence over the

officer. Therefore, Officer W illiams was reprimanded, and M r. Gauthier was

ordered transferred to another facility. In accordance with ODOC policy, M r.

Gauthier was classified at Level I following his transfer. See R. Doc. 8 Ex. 8, at

2 (“Any time inmates transfer laterally or to higher security due to . . . reasons of

security, the transferring facility will reduce the inmate to Level I effective . . .

the date of the transfer . . . .”).

       After the search but before the transfer was finalized, M r. Gauthier filed a

civil rights lawsuit seeking the return of the legal materials that had been

confiscated from his cell. M r. Gauthier contends that, shortly before the transfer,

he informed Respondent-Appellee Warden Haskell Higgins that he and Assistant

W arden Bill Reynolds w ere named as defendants in this lawsuit.

       On M ay 5, 2005, M r. Gauthier brought his habeas petition in the district

court, alleging that his transfer and classification reduction violated the due

process clause of the Fourteenth Amendment, constituted retaliation for his civil

rights lawsuit, and deprived him of 200 credits he would have earned but for his

classification reduction. The district court denied his petition, ruling both that

M r. Gauthier was not entitled to a hearing for the Respondent’s administrative

decisions and that he could not establish that retaliation motivated his transfer and

classification reduction. The court also noted that an inmate has no liberty

interest in credits until they are earned.

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                                       Discussion

      Before considering the merits of M r. Gauthier’s claim, we must determine

whether he is entitled to a COA. W e will grant a COA “only if the applicant has

made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). In other words, M r. Gauthier “must demonstrate that reasonable

jurists would find the district court’s assessment of the constitutional claims

debatable or w rong.” Slack v. M cD aniel, 529 U.S. 473, 484 (2000).

      M r. Gauthier’s petition raised four issues: (1) the transfer; (2) the reduction

to Level I classification; (3) the deprivation of credits that would have been

earned; and (4) the alleged retaliation. W ith respect to the transfer, the district

court held that “[t]he law is clear petitioner has no constitutional right to be

housed in a certain facility or in a certain unit w ithin a facility.” R. Doc. 23, at 2.

Given that Oklahoma law creates no expectation that a prisoner will be held in

any particular facility, this holding was undoubtedly correct. See M ontanye v.

Haymes, 427 U.S. 236, 242-43 (1976) (“The [Due Process] Clause does not

require hearings in connection with transfers whether or not they are the result of

the inmate’s misbehavior or may be labeled as disciplinary or punitive.”).

      W ith respect to the reduction in classification, the district court held that

“[p]rison officials must be able to classify and house prisoner[s] as they see fit for

institutional security purposes.” R. Doc. 23, at 2. It also cited M ontayne, in

which the Supreme Court held that “[a]s long as the conditions or degree of

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confinement to which the prisoner is subjected is within the sentence imposed

upon him and is not otherwise violative of the Constitution, the D ue Process

Clause does not in itself subject an inmate’s treatment by prison authorities to

judicial oversight.” 427 U.S. at 242. In other words, M r. Gauthier was not

entitled to a hearing before his classification could be automatically reduced as a

result of his transfer. No reasonable jurist could conclude otherwise.

      The district court likewise held that M r. Gauthier was not denied due

process simply because his reduced classification level deprived him of the

chance to earn additional credits. It reasoned that he “has no protected

constitutional right in an earned credit until it has been earned.” R. Doc. 23, at 4.

In light of our recent holding in Fogle v. Pierson, 435 F.3d 1252, 1262 (10th Cir.

2006), that an inmate “has no constitutionally-protected liberty interest in earning

. . . credits,” no reasonable jurist would disagree with the district court’s analysis.

      Finally, the district court rejected M r. Gauthier’s argument that his transfer

and reduction in classification were ordered in retaliation for his civil rights

lawsuit. As the district court noted, a prisoner claiming retaliation must “allege

specific facts showing retaliation [on account] of the exercise of the prisoner’s

constitutional rights,” Frazier v. Dubois, 922 F.2d 560, 562 n.1 (10th Cir. 1990),

and he “must prove that ‘but for’ the retaliatory motive, the incidents to which he

refers, including the disciplinary action, would not have taken place,” Smith v.

M aschner, 899 F.2d 940, 949-50 (10th Cir. 1990). M r. Gauthier admits that he

                                          -5-
was found to be assisting a correctional officer w ith legal work. See R. Doc. 1

Att. 1, at 6 (“I helped some correctional officer at M cLeod with legal work (at his

request) . . . .”). He offers no evidence rebutting the contention that he was

moved and re-classified because of the security risks created by his relationship

with the officer. Thus, M r. Gauthier did not establish that retaliation was the but-

for cause of his transfer and classification reduction, and no reasonable jurist

would debate that the district court properly denied his habeas petition.

      Accordingly, we DEN Y M r. Gauthier’s request for a CO A and DISM ISS

his appeal.


                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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