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

                           FOR THE TENTH CIRCUIT                       February 4, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
MURTAZA ALI,

             Petitioner-Appellant,

v.                                                        No. 13-6065
                                                   (D.C. No. 5:12-CV-00736-C)
ERIC FRANKLIN, Warden,                                    (W.D. Okla.)

             Respondent-Appellee.


                            ORDER AND JUDGMENT*


Before LUCERO and BALDOCK, Circuit Judges, and BRORBY, Senior Circuit
Judge.


      Murtaza Ali, an Oklahoma state prisoner, appeals the district court’s denial of

his petition for writ of habeas corpus under 28 U.S.C. § 2241. We affirm.

                                  I.     BACKGROUND

      Mr. Ali signed a letter with a number of other prisoners complaining about the

conditions of the prison in which they were housed. The letter was addressed to


*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
various state officials and was sent by another prisoner. After prison officials were

informed of the letter, they determined that Mr. Ali had violated a provision of

Oklahoma prison policy OP-030117 regarding prisoner correspondence. That

provision states that “[o]utgoing correspondence may only contain mail from the

offender whose name appears on the envelope. Letters . . . from other parties to be

forwarded is prohibited.” OP-030117 § I(A)(4). But in lieu of bringing a formal

misconduct charge, a prison unit classification committee decided to demote

Mr. Ali’s credit-earning level pursuant to prison policy OP 060107. See OP 060107

§ I(A)(2)(a)(4) (stating that at the “discretion of staff” an offender must be assigned

level one status in place of filing misconduct charges). Mr. Ali thus went from a

credit-earning classification level four, earning 60 days per month of good time

credits, to level one, earning zero credits.1

       After his grievances were denied, Mr. Ali filed a § 2241 petition in federal

court alleging that his demotion without a hearing violated his due process rights

under the Fourteenth Amendment. He contended that the decision to demote his

credit-earning classification, in which he allegedly held a liberty interest, was

arbitrary and came only as retaliation for exercising his First Amendment rights. The

district court adopted the magistrate judge’s report and recommendation, which

determined that Mr. Ali did not hold a liberty interest in his credit-earning


1
      Under Oklahoma law, the accrual of good time credits may result in the
prisoner’s early release.


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classification level because the prison officials’ demotion was discretionary.

See Cardoso v. Calbone, 490 F.3d 1194, 1198 (10th Cir. 2007) (inmate’s

credit-earning classification implicates a liberty interest only if the demotion was

mandatory). The district court thus concluded there was no due process violation and

denied Mr. Ali’s petition.

      Mr. Ali filed an application for a certificate of appealability, which this court

granted. We now review the merits of his appeal.

                                    II.    DISCUSSION

       We review the district court’s dismissal of Mr. Ali’s § 2241 petition de novo.

Abernathy v. Wandes, 713 F.3d 538, 544 (10th Cir. 2013). “The Fourteenth

Amendment prohibits states from depriving citizens of liberty without due process of

law.” Wilson v. Jones, 430 F.3d 1113, 1117 (10th Cir. 2005). In Sandin v. Conner,

515 U.S. 472 (1995), the Supreme Court held that prisoners are entitled to due

process before being subjected to disciplinary conduct that inevitably affects the

duration of their sentence. Id. at 484, 487.

      To make a claim that he was entitled to due process before having his

credit-earning classification level reduced, Mr. Ali “must assert the infringement of a

protected liberty interest.” Fristoe v. Thompson, 144 F.3d 627, 630 (10th Cir. 1998).

“A liberty interest may arise from the Constitution itself, by reason of guarantees

implicit in the word ‘liberty,’ or it may arise from an expectation or interest created

by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005); see also


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Ky. Dep’t. of Corr. v. Thompson, 490 U.S. 454, 461 (1989) (“[S]tate law may create

enforceable liberty interests in the prison setting.”). Mr. Ali argues that he had a

liberty interest in his credit-earning classification level in this case. We disagree.

      In Wilson and Cardoso, we emphasized that the liberty-interest question in

cases involving prisoner credit-earning-level demotions turns on whether the

demotion itself was discretionary. In fact, we recently remanded a case involving

this petitioner after concluding his demotion implicated a liberty interest because the

demotion was mandatory, even though the underlying decision that triggered the

demotion was discretionary. See Ali v. Taylor, 528 F. App’x 918, 921 (10th Cir.

2013). But unlike the cases above, and despite contradictory language in the prison

policy that uses the words “mandatory” and “discretionary” in the same provision,2

the demotion itself was discretionary in this case. Mr. Ali’s demotion was not a

mandatory consequence of a prison policy, but was purely within the discretionary

decision-making authority of the unit classification committee. Thus, unlike in

Wilson and Ali, prison officials retained the discretion to allow Mr. Ali to avoid the

demotion. We therefore conclude that Mr. Ali did not have a liberty interest in his

credit-earning classification.


2
       The provision reads: “Level 1 assignment is mandatory . . . at the discretion of
staff when an offender fails to address a deficiency (i.e. failure to maintain personal
hygiene or maintain living area, refusal or failure of a program, in lieu of a
misconduct).” OP 060107 § I(A)(2)(a)(4). Such tangled language creates
complications because the liberty-interest question depends on whether the demotion
is mandatory or discretionary.


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       To the extent Mr. Ali claims his First Amendment rights were violated, we

conclude he has failed to carry his burden of showing that the demotion was a result

of retaliation and not, as the prison claims and the evidence shows, because he

violated a policy that prohibits mail forwarding. See Beeler v. Crouse, 332 F.2d 783,

783 (10th Cir. 1964) (“Habeas corpus is a civil proceeding and the burden is upon the

petitioner to show by a preponderance of the evidence that he is entitled to relief.”).

Mr. Ali fares no better with his request for an evidentiary hearing. A habeas

petitioner must show good cause for discovery by setting forth good reasons to

believe he can demonstrate entitlement to relief. Curtis v. Chester, 626 F.3d 540,

548 (10th Cir. 2010). But Mr. Ali has not suggested—must less demonstrated—that

an evidentiary hearing “would reveal anything the district court did not consider.”

See id.

       Finally, to the extent that Mr. Ali argues prison officials violated Oklahoma

prison policy when they demoted him, we note that a § 2241 habeas petition is not

the proper mechanism for such a claim. See 28 U.S.C. § 2241(c)(3) (habeas relief is

available to state prisoners only for violations of the federal Constitution, a federal

statute, or a federal treaty).

       The judgment of the district court is affirmed.

                                                Entered for the Court


                                                Bobby R. Baldock
                                                Circuit Judge


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