                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           AUG 2 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    RAYFORD MAYBERRY,

                Petitioner - Appellant,

    v.                                                   No. 01-6364
                                                   (D.C. No. CIV-01-238-W)
    RON WARD *, Director of Oklahoma                   (W.D. Oklahoma)
    Department of Corrections,

                Respondent - Appellee.


                            ORDER AND JUDGMENT           **




Before SEYMOUR , PORFILIO , and BALDOCK , Circuit Judges.




         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.

*
      Mr. Ward replaced James Saffle as director of the Oklahoma Department of
Corrections in June 2001.
**
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Rayford Mayberry, a state inmate appearing        pro se , appeals from the

district court’s denial of his habeas petition brought pursuant to 28 U.S.C. § 2241.

The petition alleged that respondent revoked 123 days of Mr. Mayberry’s earned

good-time credits in violation of his constitutional right to due process.     Because

his appeal challenges a “final order in a habeas corpus proceeding in which the

detention complained of arises out of process issued by a State court,” 28 U.S.C.

§ 2253(c)(1)(A), Mr. Mayberry must obtain a certificate of appealability (COA)

before we may review the denial of his § 2241 petition.        Montez v. McKinna , 208

F.3d 862, 867 (10th Cir. 2000). To obtain a COA under § 2253(c), a habeas

petitioner must make “a substantial showing of the denial of a constitutional

right.” This showing requires a demonstration “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) (quotation omitted).          We

have jurisdiction under 28 U.S.C. §1291. We conclude that Mr. Mayberry has

made the required showing; therefore we grant his application for a COA and

reverse.


                          I. Procedural and factual history

       The following facts are undisputed and supported by record evidence. In

October 1996 Mr. Mayberry, an Oklahoma state inmate, was assigned a Class

                                             -2-
Level L4 status. This status entitled him to earn forty-four days of good-time

credit per month. R. Doc. 25, Ex. C at 3; OP-060211(II)(B) (attached as Ex. E to

Aplee’s Br.) (providing that L4 inmates may earn 1.47 days of credit for each day

served). On April 7, 1998, while incarcerated at the Karnes County Correctional

Center, Mr. Mayberry and three other inmates were terminated from their work

positions in the prison laundry.   Id. Doc. 25, Ex. D. Officer Hinojosa stated in his

report to Major Head that the four inmates were “no longer to report to work in

laundry/booking . . . [d]ue to the confiscation of contraband found in laundry.”

Id. The record reflects that no misconduct or other disciplinary proceedings

resulted from the incident, however,   see id. Doc. 28, Ex. A, and Mr. Mayberry

submitted an affidavit averring that both Officer Hinojosa and Major Head

assured him that his termination “would not be classified as being fired nor as a

job misconduct . . . and that I was only required to find another job assignment, as

no contraband confiscated [] in the Laundry belong[ed] to me.”     Id. Doc. 34, Ex.

A. The record reflects that Officer E. Garcia talked with Mr. Mayberry about the

incident on April 8, 1998, noting that Mr. Mayberry complained that it was unfair

that he had been “fired from the Laundry job . . . because he had not taken the

tobacco.”   Id. Doc. 28, Ex. F.

       Mr. Mayberry was assigned a kitchen job on May 7, 1998.      Id. Ex. B. On

his “Earned Credit Class Report” prepared June 23, 1998, the unit classification


                                           -3-
committee (UCC)        1
                           noted his “clear” misconduct record and recommended that he

“remain” on “current Level IV” status because he had a “good adjustment to

facility.” Id. Officer Garcia filed the report on June 24, 1998.     See id. Ex. F.

       On July 28, 1998, the Oklahoma Department of Corrections (DOC) audited

Mr. Mayberry’s credit record. The DOC informed him on July 29 that it had

removed a total of 524 days of good-time credit from his record. In a

memorandum to Mr. Mayberry, the auditor explained:

       On 5-22-96 you received a class X M.R. This made you in-eligible
       [sic] for L3 or L4 until 5-22-98. On 4-7-98 you were fired. This is
       auto L1. You have remained on L1 since that time.

Id. Ex. E. No good-time credits may be earned on L1 status.         See R. Doc. 23,

Ex. A; OP-060211(II)(B).

       No advance notice was given to Mr. Mayberry that his credits were being

revoked, and no hearing was held. Mr. Mayberry formally objected to the

removal of those credits. After Mr. Mayberry filed a petition for habeas relief in

state court,   2
                   the DOC conceded that its auditor had erroneously, and without

authorization, removed 401 of the good-time credits.        See Aplee. Br. at 21. The

1
       The UCC consists of the inmate’s case manager, a correctional officer or
counselor, and a unit manager. The committee is in charge of assigning inmates
to appropriate custody levels. See R. Doc. 30, Ex. E at 1, 2.
2
       Mr. Mayberry exhausted his state habeas remedies, with the court denying
relief because the state court and appellate records were insufficient to enable the
court “to determine what action was taken by the D.O.C. . . . and whether or not
there was any due process violation.” R. Doc. 2, Ex. 1 at 4.

                                              -4-
DOC restored these credits in September 1998, noting that they had been

incorrectly subtracted because the auditor had mistakenly overlooked

Mr. Mayberry’s automatic L4 status assigned upon his transfer to private prisons

in October 1996.    See id. Doc. 28, Ex. A at 2. The DOC refused to restore the

remaining 123 good-time credits, however, stating that, under DOC policy

OP-060213.II.A.5, assignment to Level 1 was “mandatory upon removal from a

job . . . due to job related misconduct or nonperformance.”      Id. Ex. G. The DOC’s

position was that “[d]ocumentation in your field file reflects that you were fired

from your job . . . due to job related misconduct. As a result of being fired on

April 7, 1998, you should have been demoted to Class Level 1.”          Id.

       Mr. Mayberry then petitioned for federal habeas relief, challenging both the

finding that he was terminated for job-related misconduct and the finding that his

termination (under the circumstances that he was never written up or disciplined

for job misconduct) should result in a mandatory demotion. He submitted an

affidavit stating that he had talked with one of the other inmates who was

terminated from the laundry the same day, and none of them had suffered a

demotion to L1 or any loss of good-time credits as a result of the incident.   Id.

Doc. 34, Ex. B. He alternatively argued that, if he and the other involved inmates

were in fact terminated for job-related misconduct, the DOC arbitrarily violated

his right to equal protection by retroactively demoting only him. The DOC did


                                            -5-
not counter Mr. Mayberry’s affidavits with affidavits from Officer Hinojosa or

Major Head; nor did it submit records showing the earned credit status of the

other involved inmates to counter Mr. Mayberry’s assertions despite three

opportunities to do so.

       The federal district court denied habeas relief without holding an

evidentiary hearing. Instead, the court relied on an affidavit submitted by Jim

Rabon, Administrator of the Sentence Administration and Offender Records of

the DOC. Although Mr. Rabon confirmed that Mr. Mayberry “was not charged

with a disciplinary infraction” over the laundry termination, he contended that the

termination mandated an automatic demotion that was overlooked by prison

officials and that the mistake was simply “perpetuated” by the classification

committee on the Earned Credit Class Report filed June 23, 1998.          Id. Doc. 30,

Ex. A. The magistrate judge assigned to the case concluded that the “mistake in

applying earned credits to Petitioner’s sentence did not create a protected liberty

interest that did not previously exist,” and that, “[t]herefore, the revocation of the

mistakenly-applied credits did not violate Petitioner’s due process rights.”      Id.

Doc. 31 at 4. The district court adopted the recommendation and denied the

petition. Id. Doc. 35 at 3.




                                            -6-
                                      II. Discussion

       On review of the denial of a petition for habeas corpus, we review the

district court’s legal conclusions de novo.         See Patterson v. Knowles , 162 F.3d

574, 575 (10th Cir.1998). Mr. Mayberry argues that he has a liberty interest in

his earned good-time credits even though the DOC now asserts they were not

validly earned. We agree with Mr. Mayberry. Oklahoma “has created a liberty

interest in earned credits and an inmate is entitled to due process protection prior

to the loss of those credits.”   Waldon v. Evans , 861 P.2d 311, 313 (Okla. Ct.

Crim. App. 1993); see also Wolff v. McDonnell          , 418 U.S. 539, 557 (1974)

(holding that when state provides right to good time and specifies method of

forfeiture, inmate has constitutionally-protected liberty interest entitling him to

procedures designed to ensure that the state-created right is not “arbitrarily

abrogated”). Under Oklahoma law, once good-time credits are entered on an

inmate’s credit record, the DOC may subtract them for disciplinary reasons “upon

recommendation of the institution’s disciplinary committee, following due

process, and upon approval of the warden or superintendent.” 57 O.S. 1991,

§ 138; see also OP-060211(IV)(C)(2)(c) (attached as Ex. E to Aplee’s Br.)

(mandating that “[o]nly credit lost through the disciplinary process or court

sanction” be posted in the “credits lost through the disciplinary process” column

on an inmate’s credit record card).


                                              -7-
       The cases on which the DOC relies in support of its view that there is no

liberty interest in good-time credits that have been “mistakenly” granted are

distinguishable because in each case, the inmates had no right to the credits in the

first place as a matter of law.   See, e.g., Stephens v. Thomas , 19 F.3d 498, 501

(10th Cir. 1994) (holding that inmates serving life terms were not entitled to

good-time credits because state statute expressly foreclosed the granting of

good-time credits to such inmates). In contrast, the award of good-time credits to

Mr. Mayberry between April and July of 1998 were sanctioned by his UCC and

were not the result of a clerical error nor an error arising from misapplication of

state law.

       The DOC’s regulations provide that Level 1 assignment is mandatory upon

removal from a job only if the removal is “due to nonperformance or misconduct

related to the job.” R. Doc. 30, Ex. E at 2. Contrary to Mr. Rabon’s assertion

that Mr. Mayberry’s demotion to L1 was mandatory under this regulation as a

matter of law, no document or testimony in the record fully supports that claim.

The incident report does not accuse Mr. Mayberry of misconduct or of possessing

contraband or having placed it in the laundry room. In his report, Officer

Hinojosa simply ordered all employees of the laundry not to report there for work

any longer because contraband had been discovered in the area. Obviously, none

of the officers involved considered Mr. Mayberry’s presence in the area where


                                            -8-
contraband was found to be job-related “misconduct,” as demonstrated by the fact

that he was not given a misconduct report for the incident. Further,

Mr. Mayberry’s UCC stated that Mr. Mayberry had a “clear” misconduct record

and did not recommend demotion to L1 on June 23rd despite its members’

awareness of the April 7 incident and of its mandatory duty to demote him to L1

status if he had been removed from a job for misconduct related to the job.

       Although the DOC maintains that the UCC’s recommendation that he

remain at L4 status “had no effect” because the assignment to L1 was

“mandatory,” Aplee. Br. at 4, that conclusion begs the question of whether

Mr. Mayberry was in fact guilty of misconduct related to his job. Only if he was

guilty of that misconduct would the UCC’s recommendation have no effect.

Based on the field record, the auditor’s conclusion is clearly contrary to that of

the officers involved and the UCC, who were all aware of the incident.

       The DOC has produced nothing to show that an auditor is authorized to

retroactively reclassify an inmate absent the recommendations of the inmate’s

UCC. While it is true that an inmate’s classification level is discretionary, that

discretion rests with the UCC that daily deals with the inmate and not with an

administrative auditor.   See R. Doc. 30, Ex. E at 2 (providing that UCC assigns

appropriate classification levels); OP-060211(II)(B) (attached to Aplee’s Br. as

Ex. E) (providing that class assignments “are determined by the adjustment


                                          -9-
review committee/unit treatment team based upon the desired behavior of the

inmate in all areas of institutional life”).

       The DOC asserts that its auditors have authority to retroactively demote

inmates and subtract good-time credits from their record card based on the

auditor’s authority to compare the field record with the record card for

consistency and accuracy. We disagree. Nothing in the documents submitted to

this court provide for a retroactive loss of credits based on an auditor’s unilateral

interpretation of a field record that does     not contain a misconduct report

documenting a disciplinary proceeding.         See OP-060211(III)(A) (setting forth

procedures for determining loss of credits). Although the DOC asserts that its

auditor could retroactively demote Mr. Mayberry to L1 status without a

disciplinary proceeding or misconduct report, according to the DOC’s regulations,

only those “credits lost through the disciplinary process as documented by a

misconduct report or a court ordered sanction” are to be posted on, and subtracted

from, an inmate’s credit record card.        See OP-060211(VI)(C)(2)(c). Mr.

Mayberry’s loss of credits does not satisfy this requirement. See R. Doc. 28, Ex.

A at 3.

       Mr. Mayberry’s claim that his termination was not for job-related

misconduct and not subject to mandatory demotion is supported by his

uncontroverted affidavit asserting that none of the other inmates involved


                                              -10-
received a similar retroactive demotion and loss of credits. It is further

uncontroverted that no disciplinary committee recommended retroactive loss of

good-time credits due to the April 7, 1998 incident as required by 57 O.S. 1991

§ 138.

         The State’s argument that it was impossible to provide Mr. Mayberry with a

pre-deprivation hearing is without merit, and the cases on which it relies for that

proposition are easily distinguishable.     Compare Hudson v. Palmer , 468 U.S. 517,

532-33 (1984) (holding that meaningful post-deprivation hearing is sufficient to

remedy unauthorized intentional deprivations of inmate’s property),        with Waldon ,

861 P.2d at 313 (holding that, under      Wolff , an inmate “is entitled to due process

protection prior to the loss of [good-time] credits”) (emphasis added);      and see

Mitchell v. Maynard , 80 F.3d 1433, 1445 (10th Cir. 1996) (“To meet the

standards of due process in a disciplinary proceeding under       Wolff, the inmate

must receive: (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.”).

         Even if Hudson applied, the State has refused to grant a post-deprivation

hearing to resolve whether Mr. Mayberry was in fact terminated from his job for


                                             -11-
job-related misconduct. In short, Mr. Mayberry was never given an opportunity to

obtain testimony from officers with personal knowledge about the incident to

demonstrate that his removal from the laundry job was not a disciplinary action

subject to mandatory demotion. Nor was he given opportunity to conclusively

establish that other similarly-situated inmates were not retroactively demoted and

disciplined with loss of good-time credits because of the incident. The DOC has

not presented sufficient evidence to establish that Mr. Mayberry’s accrual of

good-time credits was indeed a “mistake” as a matter of law, and it has presented

no evidence to controvert Mr. Mayberry’s affidavits.

          We conclude that Mr. Mayberry earned the challenged good-time credits

while formally classified as an L4 inmate. They were not removed until the

auditor, contrary to the UCC’s recommendation that Mr. Mayberry remain at L4

status, determined that Mr. Mayberry should retroactively be demoted to L1 status

for disciplinary reasons and should suffer a consequent loss of good-time credits.

The auditor removed those credits without notice, without a hearing, and without

a disciplinary committee’s determination that Mr. Mayberry had committed an

infraction, violating both state law and the procedures set forth in   Waldon and

Wolff .

          The district court erred in holding that Mr. Mayberry had no liberty interest

in the good-time credits due to the auditor’s opinion that they were “mistakenly”


                                            -12-
earned, and must be reversed.    3
                                     Because the DOC removed the credits without

notice or an opportunity for a hearing, it must restore the credits.     See Brown v.

Smith , 828 F.2d 1493, 1495 (10th Cir. 1987) (holding that inmate who

demonstrates that due process rights were violated may use § 2241 as remedy to

restore good-time credits).

       The motion to proceed in forma pauperis in this court is GRANTED.          The

judgment of the United States District Court for the Western District of Oklahoma

is REVERSED and REMANDED for entry of an order consistent with this order

and judgment.



                                                          Entered for the Court



                                                          Bobby R. Baldock
                                                          Circuit Judge




3
     The district court did not address Mr. Mayberry’s equal protection
argument.

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