                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 October 23, 2013
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



 DAVID WHITMORE,

              Petitioner - Appellant,
                                                        No. 13-6162
 v.                                             (D.C. No. 5:12-CV-01408-M)
                                                       (W.D. Okla.)
 JANET DOWLING, Warden,

              Respondent - Appellee.


                           ORDER DENYING
                    CERTIFICATE OF APPEALABILITY *


Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.



      David Whitmore, a state prisoner proceeding pro se, applied for relief

under 28 U.S.C. § 2241 in the United States District Court for the Western

District of Oklahoma. The district court denied the application. Mr. Whitmore

now seeks a certificate of appealability (“COA”) from this court so that he may

appeal the district court’s denial. See Montez v. McKinna, 208 F.3d 862, 868-69

(10th Cir. 2000) (requiring a COA to appeal dismissal of habeas petition brought



      *
       This order is not binding precedent, except under the doctrines of law of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.
by state prisoner under 28 U.S.C. § 2241). We deny Mr. Whitmore a COA and

dismiss this matter.



                                 BACKGROUND

      Mr. Whitmore is serving a 35-year sentence, entered in February 1989, for

his conviction on a first degree manslaughter charge. He is currently incarcerated

at the Joseph Harp Correctional Center located in Lexington, Oklahoma. The

disciplinary proceeding that was the subject of the § 2241 petition below and is

the subject of this appeal was conducted at the Lawton Correctional Facility

(“LCF”) where Mr. Whitmore was previously confined.

      As described by the district court, the relevant facts are as follows: On

July 28, 2009, an LCF official, Mr. Parham, authored an Offense Report in which

Mr. Whitmore was charged with the misconduct offense of assault/battery with

injury. In his description of the offense, Mr. Parham stated that, “after further

interview with the offender it was determined that offender Whitmore was

involved in a physical altercation with another offender causing injury to the

other offender . . .” Supp. Report & Recommendation at 2 (adopted by the

district court), R. Vol. 1 at 90. Mr. Whitmore’s handwritten statement, dated

July 28, 2009, and written on a form titled “T.A.S.K. Conflict Resolution Form

100,” described the event as follows:




                                         -2-
      [m]y younger Homie and another guy from a rival gang got into at
      breakest, one from the rival gang dissed . . . my young Homie from
      PLAYBOY GANGSTA CRIP, by saying pass the peanut butter, they
      started arguing, his homies started talking loud, so I interject into the
      convo. and tried to take controll of the situation, and did a pretty
      good, well one of the guy didn’t like what I was saying and they
      started cussing me out, one got in my face, the other pushed his tray
      into me, and told me to stay out of it. Well I didn’t, because I knew
      the history of the two gangs and I didn’t want it to be gang against
      gang fight. The Hoovers had been running wild and this little thing
      could have set it off. While trying to talk to the guy from Hoover,
      they started fighting, and I’m trying to break them up and got hit.
      But when it was all said and done I was able to keep it from getting
      out of hand, and spreading to another housing unit.

Id.

      LCF Investigating Officer Kirkpatrick completed an Investigator’s Report

dated August 7, 2009. This report indicates that Mr. Whitmore requested to call

two witnesses, inmate “King,” who supposedly would testify that Mr. Whitmore

“was not fighting,” and the alleged victim, who would testify that he (Mr.

Whitmore) “did not assault him [the victim].” Id. at 91. Mr. Whitmore also

requested a “video” as documentary evidence. Officer Kirkpatrick determined

that “King” was not qualified to be a witness because there were three inmates

with that last name in the housing unit in which Mr. Whitmore stated “King” was

confined, and Mr. Whitmore “could not be more specific as to which offender

King it was.” Id. Officer Kirkpatrick elected to take a statement from the alleged

victim, but the victim refused to give a statement.




                                         -3-
      Mr. Whitmore received a copy of the offense report on September 16, 2009,

and he requested a hearing. In the disciplinary hearing conducted on

September 18, 2009, Mr. Whitmore presented a written statement by another

inmate who denied that Mr. Whitmore was involved in the “fight” but admitted

that Mr. Whitmore was “hit in the eyes by somebody else” while “trying to break

up the fight that day.” Id. at 91. Medical records presented at the hearing

indicated that three inmates, including Mr. Whitmore, sustained injuries in the

incident. Mr. Whitmore’s handwritten statement was also presented at the

hearing.

      Mr. Whitmore was found guilty of the offense. To support the finding of

guilt, the disciplinary hearing officer explained in his written report of the hearing

that, “Sgt. Parham states that on 28 July 2009 at 0700 hours a 10-10 offender on

offender fight was called in House 2 E pod. After further interview with [Mr.

Whitmore] it was determined that [Mr. Whitmore] was involved in a physical

altercation with [the alleged victim],” “[b]ody sheets show injuries to both

offenders, as well as injuries to [a third offender],” and “staff has nothing to gain

by fabricating the event.” Id. at 92. As punishment, Mr. Whitmore was

sentenced to disciplinary segregation for thirty days, a loss of 365 earned credits

and a reduction to classification level 1 for 90 days. The head of the facility

(LCF) affirmed the misconduct finding and the punishment.




                                          -4-
      Mr. Whitmore appealed the misconduct to LCF Warden Miller. Mr.

Whitmore claimed there was insufficient evidence to support the misconduct

finding and that he never received a written statement supporting the guilty

finding. Mr. Whitmore further averred that he “never said that he was involved in

any fight, ONLY that he was trying to prevent a potential gang fight between 2

other inmates,” and “the injury report [described] injuries that he received getting

in between some offenders that were fighting.” Id. Mr. Whitmore also claimed

that the disciplinary hearing officer “did not do any fact finding, all he done was

record keeping.” Id. Warden Miller affirmed the misconduct finding and the

punishment imposed.

      Mr. Whitmore appealed that decision to the Oklahoma Department of

Corrections’ Administrative Review Authority (“ARA”). Mr. Whitmore again

asserted that he was not fighting but was merely “breaking up a fight between two

offenders” and that “[b]oth of these inmates plead guilty to their offense reports.”

Id. at 92-93. In a decision dated December 7, 2009, the ARA denied the appeal

based upon the finding that there was sufficient evidence to support the battery

misconduct and that Mr. Whitmore was provided with a written statement of the

evidence supporting the determination of guilt.

      In accordance with Okla. Stat. tit. 57, § 564.1, Mr. Whitmore filed a

petition for judicial review of the disciplinary decision in the District Court of




                                          -5-
Oklahoma County, and the petition was denied. The Oklahoma Court of Criminal

Appeals affirmed the district court’s order denying relief.

      Mr. Whitmore then sought relief in the federal district court, which initially

referred the matter to a magistrate judge. The magistrate judge noted that its

“records reflect that Petitioner has filed fourteen 28 U.S.C. § 2241 and 42 U.S.C.

§ 1983 actions in this court in the past three years, most of which challenge

institutional disciplinary proceedings.” Supp. Report & Recommendation at 5

n.2, R. Vol. 1 at 93. Mr. Whitmore claimed he had been denied due process

because: there was not “some evidence” to support the finding of guilt in the

disciplinary proceeding; there was no eyewitness to the incident; there was no

evidence of his anger of hostile intent to commit a battery; and he did not admit

to being actively involved in the altercation. As a second ground for relief, Mr.

Whitmore claims he was denied the opportunity to call his witness “King.” As a

third ground for relief, Mr. Whitman alleges (similarly to his first ground for

relief) that the written statement by the disciplinary hearing officer was

inadequate because “it amounted to ‘record keeping’ not ‘fact finding,’” it failed

to explain why the officer discredited Mr. Whitman’s evidence, and it failed to

explain on “what part of the interview” the officer relied in finding him guilty.

       The district court (having adopted the magistrate judge’s report and

recommendation) noted that, although it appears that Mr. Whitmore failed to raise

the issue concerning the denial of his opportunity to present a witness in either his

                                         -6-
administrative grievance process or in his state court petition for review, the

defendant in this case has expressly waived any exhaustion defense. We

accordingly deem this matter exhausted. See Williams v. Jones, 571 F.3d 1086,

1089 (10th Cir. 2009) (recognizing that the state may waive exhaustion defense

with express waiver through counsel).

      Turning to the merits of Mr. Whitmore’s petition, the court denied him

habeas relief, finding that “the evidence is sufficient to provide the ‘modicum of

evidence’ necessary to support the finding of guilt.” Supp. Report &

Recommendation at 8, R. Vol.1 at 96 (adopted by the district court). The court

also found that Mr. Whitmore was given the opportunity to present witnesses in

his defense, and the statement of reasons entered by the disciplinary hearing

officer was adequate to establish the finding of Mr. Whitmore’s guilt. As the

court concluded, Mr. Whitmore “was not denied due process in connection with

the disciplinary proceeding, [and] he is not entitled to habeas relief.” Id. at 97.

Mr. Whitmore now seeks a COA to enable him to appeal that adverse decision.



                                   DISCUSSION

      Mr. Whitmore may not appeal the district court’s decision without a COA.

See Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); Clark v. Oklahoma, 468

F.3d 711, 713 (10th Cir. 2006). To obtain a COA, Mr. Whitmore must make “a

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

                                          -7-
§ 2253(c)(2). “To make such a showing, an applicant 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 the issues

presented were adequate to deserve encouragement to proceed further.” Harris v.

Dinwiddie, 642 F.3d 902, 906 (10th Cir. 2011) (quoting Slack v. McDaniel, 529

U.S. 473, 484 (2000)).

      Mr. Whitmore does nothing more in his application for a COA than recite

the procedural history and then press a point he barely presented in his habeas

petition below—i.e., that he was a member (he says a Board Member) of an

organization called “T.A.S.K. (Teaching and Saving Kids) . . . a pilot program . . .

[i]mplemented by the Warden. . . . The main purpose [of T.A.S.K.] at the time in

question was to stop the gang/racial violence that had become rampant in the

D.O.C.” Appellant’s Op. Br. and App. for COA at 2. He further claims now that

he “was acting up under the guise or authorization of this pilot program” such that

he “is pleading an ‘actual innocence’ claim, as one would that was charged with

an ass[a]ult and battery, but was only defending his person. The required intent

to cause bodily harm is missing.” Id.

      The district court observed that, “[b]ecause prison disciplinary proceedings

‘are not part of a criminal prosecution,’ inmates are not entitled to the full extent

of the due process rights due to defendants in criminal prosecutions.” Supp.

Report & Recommendation at 6 (quoting Wolff v. McDonnell, 418 U.S. 539, 556

                                          -8-
(1974)), R. Vol. 1 at 94. The court then properly analyzed the evidence presented

in light of the standard for determining when the requirements of due process

have been satisfied in prison disciplinary proceedings which may, as did Mr.

Whitmore’s, result in the loss of earned credits. Thus, the court considered

“‘whether the three steps mandated by Wolff were followed and whether there

was some evidence to support the disciplinary [hearing officer’s] findings.’” Id.

at 95 (quoting Mitchell v. Maynard, 80 F.3d 1433, 1445 (10th Cir. 1996)).

      The district court carefully and fully explained why Mr. Whitmore’s

petition did not merit relief. Reasonable jurists could not dispute the propriety of

the court’s analysis and conclusions.



                                  CONCLUSION

      For the foregoing reasons, we DENY Mr. Whitmore a COA and DISMISS

this matter.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




                                         -9-
