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

                            FOR THE TENTH CIRCUIT                           October 24, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
RICHARD L. DOPP,

      Petitioner - Appellant,

v.                                                         No. 19-6089
                                                    (D.C. No. 5:18-CV-00520-D)
TERESA McCOIN, District Supervisor,                        (W.D. Okla.)
Northeast District, Probation and Parole;
SCOTT CROW, Interim Director,
Oklahoma Department of Corrections,

      Respondents - Appellees.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before LUCERO, PHILLIPS, and EID, Circuit Judges.
                  _________________________________

      In 1998, Petitioner Richard L. Dopp was convicted on firearm and drug

offenses. The court sentenced him to life without parole (LWOP), which in 2018 was

commuted to 30 years. In calculating his remaining sentence, officials deducted

credits for prison misconduct. He is now out on parole. Dopp, proceeding pro se,

sought habeas relief under 28 U.S.C. § 2241 concerning three misconduct violations

for which he claims to have lost good-time credits—escape, possessing contraband,

and disruptive conduct. Dopp v. McCoin, No. CIV-18-520-D, 2019 WL 1952693, at


      *
         This order is not binding precedent, except under the doctrines of law of the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.
*1 (W.D. Okla. May 2, 2019). The district court denied relief on the first and third

violations but granted relief on the second. Id. at *4–5. Dopp seeks a certificate of

appealability (COA) over the two denials.1 We deny the COA.

                                   BACKGROUND

      Dopp’s escape violation stemmed from a 2009 event when he left prison “on a

Certificate of Release that the state court found was secured through the use of a

fraudulent document purporting to be an amended judgment and sentence.” Dopp v.

Workman, 502 F. App’x 797, 800 (10th Cir. 2012) (unpublished). State officials

quickly located him at his mother’s house and brought him back to prison. Id. Back

in prison, officials placed him in segregated confinement for nearly a year before a

disciplinary hearing was held over his alleged misconduct. At the hearing, the

hearing officer denied Dopp’s request to call two Internal Affairs (IA) officers as

witnesses to testify about an “agreement that there would be no street . . . or

misconduct [charges]” if Dopp confessed to them. R. vol. II at 201–03. The officer

reasoned that the “I/A investigators deal [was] not part of this misconduct.” Id. at

202–03.2



      1
        Dopp also argues that the district court ignored his claim that his credits were
incorrectly applied. This is incorrect. In fact, the district court instructed Oklahoma
prison officials to “recalculate [Dopp’s] remaining time to be served . . . .” Dopp,
2019 WL 1952693, at *5.
      2
         In the district court, Dopp also alleged that he was denied the ability to
present his “Certificate of Release,” which he claimed was exculpatory. But as noted
by the district court, the state considered the certificate at the hearing. Dopp does not
raise this issue on appeal.
                                            2
       Dopp’s disruptive-behavior violation stemmed from an event in 2012 when he

sent an IA officer a letter “using the legal mail.” R. vol. II at 212, 214. Initially, Dopp

was convicted, but upon rehearing, the charge was dismissed.

                                     DISCUSSION

       To receive a COA, Dopp must “ma[k]e a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). This requires “showing that reasonable

jurists could debate whether . . . 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) (quoting Barefoot v.

Estelle, 463 U.S. 880, 893 n.4 (1983)).

       I.     Escape

       Dopp contests two consequences of his escape conviction: (1) his

predisciplinary-hearing placement in segregated confinement; and (2) the denial of

two witnesses he wished to call at the hearing. We examine each in turn.

              A.     Predisciplinary-Hearing Detention

       As a parolee, Dopp is “in custody.” See United States v. Condit, 621 F.2d

1096, 1098 (10th Cir. 1980) (“For . . . habeas[,] . . . parole[] constitutes ‘custody.’”).

       “A petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather

than its validity . . . .” Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). “The

fundamental purpose of a § 2241 habeas proceeding is to allow a person in custody to

attack the legality of that custody, and the ‘traditional function of the writ is to secure

release from illegal custody.’” Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th

                                            3
Cir. 2012) (quoting McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811 (10th Cir.

1997)). Thus, “a challenge to the conditions of [a prisoner’s] confinement . . . must

be brought” as a civil-rights—not habeas—action. Id. at 1036. Here, Dopp claims

that his prehearing segregation violated due process. Even if it did, habeas relief is

not the appropriate avenue for such a challenge. By contesting the conditions of his

previous confinement, he is seeking civil-rights relief, not relief under § 2241.

Therefore, a COA is denied on this ground.

             B.     Witness Exclusion

      “It is well settled that an inmate’s liberty interest in his earned good time

credits cannot be denied without the minimal safeguards afforded by the Due Process

Clause . . . .” Howard v. U.S. Bureau of Prisons, 487 F.3d 808, 811 (10th Cir. 2007)

(internal quotation marks omitted) (quoting Mitchell v. Maynard, 80 F.3d 1433, 1444

(10th Cir. 1996)). But “[p]rison disciplinary proceedings are not part of a criminal

prosecution, and the full panoply of rights due a defendant in such proceedings does

not apply.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974). As such, where discipline

may result in the loss of good-time credits, due process requires:

      (1) advance written notice of the disciplinary charges; (2) an
      opportunity, when consistent with institutional safety and correctional
      goals, to call witnesses and present documentary evidence in his
      defense; and (3) a written statement by the factfinder of the evidence
      relied on and the reasons for the disciplinary action.

Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985) (citing

Wolff, 418 U.S. at 563–67). Additionally, “revocation of good time does not comport

with the minimum requirements of procedural due process unless the findings of the

                                            4
prison disciplinary board are supported by some evidence in the record,” id. (internal

citation and quotation marks omitted), and “the decisionmaker [is] impartial,” Gwinn

v. Awmiller, 354 F.3d 1211, 1219 (10th Cir. 2004) (citing Wolff, 418 U.S. at 592).3

      Reviewing the record, we conclude that the hearing officer did not violate

Dopp’s due-process rights by preventing Dopp from calling the two witnesses. Dopp

argues that this decision deprived him of the opportunity to show that he “never

admitted to providing any [false release documents] . . . [and] that [he] did not know

his release was unlawful because he had nothing to do with that release.” Appellant’s

Br. 3. But initially Dopp sought this testimony solely to show that he had a deal.

Thus, on appeal he has expanded his reasons for needing the testimony beyond those

originally given.

      In the matter at issue, the officer was investigating whether Dopp should be

punished for escaping from prison using a forged document. The investigation did

not concern what the IA officers had offered Dopp in exchange for his confession.

Dopp does not argue that his admission was coerced or otherwise problematic. He

simply wants to say why he confessed. Since the hearing was to determine whether

Dopp engaged in misconduct, evidence of a deal is irrelevant. Therefore, excluding

witnesses whose only purpose was to testify to a deal did not violate due process.

      Additionally, the hearing officer’s decision was supported by “some

evidence.” As evidence of guilt, the hearing officer relied on the IA officers’ report,


      3
        Both “advance written notice” and a “written statement by the factfinder of
the evidence relied on and the reasons for the disciplinary action” were provided.
                                           5
which referenced Dopp’s admission to using a fraudulent document to escape.

Dopp’s admission of the misconduct constitutes “some evidence,” such that this

misconduct conviction complied with due process. Therefore, a COA is denied on

this ground.

      II.      Disruptive Behavior

      Dopp contends that the district court erred by treating his disruptive-behavior

violation claim as moot. He contends that he has a live claim because prison officials

never returned a $5.00 fee imposed on him for the violation. But the district court

reviewed the record and concluded that officials did in fact return Dopp the $5.004

and that he lost no good-time credits for his disruptive-behavior violation. Dopp v.

McCoin, No. CIV-18-520-D, 2019 WL 1952693, at *4 (W.D. Okla. May 2, 2019).

Because Dopp does not allege that this violation is on his record or that he has lost

any good time credits for it, § 2241 relief is not available. Thus, we deny a COA on

this ground.

      III.     Miscarriage of Justice

      Finally, Dopp asks for a COA under the miscarriage-of-justice exception to

habeas. But “[t]his exception . . . is a markedly narrow one, implicated only in

‘extraordinary case[s] where a constitutional violation has probably resulted in the

conviction of one who is actually innocent.’” Magar v. Parker, 490 F.3d 816, 820

(10th Cir. 2007) (second alteration in original) (quoting Phillips v. Ferguson, 182


      4
        We need not reach whether Dopp was assessed a $5.00 fine, since habeas is
not the appropriate avenue for relief even if it was assessed.
                                           6
F.3d 769, 774 (10th Cir. 1999)). To succeed, Dopp “must identify evidence that

affirmatively demonstrates his innocence,” and in doing so must “do[] more than

simply ‘undermine the finding of guilt against’ him . . . .” Phillips, 182 F.3d at 774

(quoting Ballinger v. Kerby, 3 F.3d 1371, 1375 (10th Cir. 1993)). Here, after

reviewing the record, we conclude that Dopp has provided no evidence

demonstrating his actual innocence. Rather, he takes issue with the evidence used to

convict him, which does not affirmatively demonstrate his innocence. Therefore,

Dopp has failed to support a claim for miscarriage of justice, and we deny a COA on

this ground.

                                   CONCLUSION

      Because no “reasonable jurists could” find that Dopp’s due-process rights were

violated, we deny a COA and dismiss the appeal.


                                            Entered for the Court



                                            Gregory A. Phillips
                                            Circuit Judge




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