                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          March 16, 2006
                                TENTH CIRCUIT                           Elisabeth A. Shumaker
                                                                           Clerk of Court

 JAMES C. MOORE,
              Petitioner-Appellant,                      No. 05-6277
 v.                                               (D.C. No. 04-CV-1735-F)
 HASKELL HIGGINS, Warden,                                (W.D. Okla.)
              Respondent-Appellee.


                                      ORDER


Before KELLY, McKAY, and LUCERO, Circuit Judges.




      Petitioner, a state prisoner appearing pro se, filed this action seeking a writ

of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner is currently in the

custody of the Oklahoma Department of Corrections. He challenged the result of

a prison disciplinary hearing at which he was found guilty of Group Disruptive

Behavior. Because of the disciplinary action, Petitioner lost 365 days of earned

credit and was reassigned to a more restrictive incarceration level. Petitioner

contends that the prison officials failed to provide evidence to support the

conviction, that the prison authorities violated his First Amendment right to

freedom of speech by punishing him for voicing his opinion, that his due process

rights were violated when he was denied a staff representative to assist with the
preparation of his defense, and that he was denied access to the courts when he

was placed in segregation without access to legal materials. The magistrate judge

recommended that Petitioner’s habeas petition be denied and that his First

Amendment claim be dismissed without prejudice because it would properly be

raised in a civil rights action under 28 U.S.C. § 1983. After consideration of

Petitioner’s objections, the district court adopted the magistrate judge’s

recommendation, and Petitioner now appeals from the district court’s order.

      The magistrate judge acknowledged that Petitioner was entitled to due

process protection in his prison disciplinary proceeding. See Report and

Recommendation, 3 (W.D. Okla. July 20, 2005). However, the magistrate judge

reasoned that the evidence presented supported Petitioner’s conviction: “In this

case, the finding of guilt was based on statement by two reporting officers who

reported that the inmate population became restless after Petitioner challenged the

first reporting officer in a loud voice regarding whether the inmates would be

served breakfast before they had to report to work.” Id. at 4.

      As to Petitioner’s claims that he was not granted access to legal material

while in segregation and that no counsel was appointed to assist him in

preparation of his defense, the magistrate judge did not determine that due

process had been violated. “In [Wolff v. McDonnell, 418 U.S. 539, 570 (1974)],

however, the Court refused to find that prisoners have the right to counsel in


                                         -2-
prison disciplinary proceedings . . . . Under the circumstances in this case,

Petitioner received the due process he was due.” Id. at 5-6 (internal citations

omitted).

      The district court adopted the recommendations of the magistrate judge in

an order of August 11, 2005. The district court also issued an order denying a

certificate of appealability on August 29, 2005. The issues Petitioner raises on

appeal are identical to those brought before the district court.

      To grant a certificate of appealability, Petitioner must make a “substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (1994).

To meet this burden, Petitioner 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.” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (quotation omitted).

      We have carefully reviewed Petitioner’s brief, the district court’s

disposition, the magistrate judge’s recommendation, and the record on appeal.

Nothing in the facts, the record on appeal, or Petitioner’s filing raises an issue

which meets our standard for the grant of a certificate of appealability. For

substantially the same reasons set forth by the magistrate judge and adopted by

the district court in its orders of August 11 and 29, 2005, we cannot say “that


                                          -3-
reasonable jurists could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner.” Id.

      We DENY Petitioner’s request for a certificate of appealability and

DISMISS the appeal.

                                               Entered for the Court



                                               Monroe G. McKay
                                               Circuit Judge




                                         -4-
