                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         March 6, 2006
                                 TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                         Clerk of Court

 DEMICHAEL MCCAULEY,

              Petitioner - Appellant,                   No. 05-6319
       v.                                             (W.D. Oklahoma)
 RON WARD,                                       (D.C. No. 04-CV-1698-C)

              Respondent - Appellee.


                                        ORDER


Before TACHA, Chief Circuit Judge, HARTZ, and TYMKOVICH, Circuit
Judges.


      Demichael McCauley, an Oklahoma state prisoner assigned to the

Oklahoma City Community Corrections Center (OKC/CCC), was found guilty of

escape in a disciplinary hearing on April 26, 2004. On December 14, 2004, he

filed in the United States District Court for the Western District of Oklahoma an

application for a writ of habeas corpus under 28 U.S.C. § 2241, arguing that the

disciplinary proceeding violated his due process rights. The district court,

following the recommendation of the magistrate judge, denied the application and

denied a certificate of appealability (COA), see 28 U.S.C. § 2253(c)(1) (requiring

COA); Montez v. McKinna, 208 F.3d 862, 869 (10th Cir. 2000) (COA required for

state prisoners seeking relief under § 2241). Mr. McCauley now seeks a COA
from this court. He also seeks leave to proceed in forma pauperis (IFP). We deny

a COA and IFP status.

I.    BACKGROUND

      On April 16, 2004, Mr. McCauley, who was assigned to the OKC/CCC, was

working at a facility in Oklahoma City referred to as “Property Distribution.”

Mr. McCauley’s supervisor was unable to locate him after the lunch break, and at

1:15 p.m. received a call informing him that Mr. McCauley was in the custody of

the Oklahoma City police. Mr. McCauley was charged with the offense of escape

by the Oklahoma Department of Corrections (DOC). He was provided a copy of

the offense report, the investigator’s report, the Oklahoma City police report, the

sign-out sheet for Property Distribution, and the Property Distribution incident

report. He was also advised of his rights in connection with the disciplinary

charge. At a hearing on April 26, 2004, Mr. McCauley was found guilty of

escape. Mr. McCauley appealed through the disciplinary system, but the

conviction was affirmed.

      In his § 2241 application Mr. McCauley alleged three violations of his

procedural due process rights: (1) the notice he received of the charges against

him was too vague and ambiguous to afford due process; (2) he could be charged

with escape only if he was gone for more than 24 hours; and (3) no evidence

supported the charge of escape. The magistrate judge found that the “offense


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report clearly states that [he] was being charged with violation code 16-1, ‘escape

from the custody of the DOC,’” and explained that he had left work premises

when signed out to work at Property Distribution. R. Doc. 16 at 5 (internal

brackets omitted). He said that this notice satisfied the requirements of Wolff v.

McDonnell, 418 U.S. 539, 563-67 (1974).

      The magistrate judge also rejected Mr. McCauley’s assertion that he could

not be charged with escape unless he was absent for more than 24 hours because

“the 24-hour absence from custody requirement as set forth in Okla. Stat. tit. 21, §

443(C) applies only to a criminal charge of felony escape under that section, a

separate issue from a prison disciplinary misconduct for escape.” R. Doc. 16 at 6

n.6. And with regard to Mr. McCauley’s claim that the charge of escape was not

supported by any evidence, the magistrate judge found that some evidence

supported Mr. McCauley’s disciplinary conviction. The incident reports showing

that Mr. McCauley “‘left the premises of confinement at his work location’” and

Mr. McCauley’s admission that “he left the premises where he was assigned to

work” were adequate to support the outcome of the disciplinary hearing. Id. at 8.

      The district court affirmed the Report and Recommendation of the

magistrate judge and denied Mr. McCauley’s § 2241 application.

      On appeal Mr. McCauley contends that his procedural due process rights

were violated when he was convicted of the disciplinary violation of escape


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although he had been absent less than 24 hours. He also appears to challenge the

use of the some-evidence standard in convicting him of the disciplinary charge.

Finally, he contends that he is entitled to an evidentiary hearing.

II.   DISCUSSION

      State prisoners filing for habeas relief under § 2241 must obtain a COA in

order to appeal the denial of their application. Montez, 208 F.3d at 869. A COA

will issue “only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a

demonstration that . . . includes showing 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)

(internal quotation marks omitted). In other words, the applicant must show that

the district court’s resolution of the constitutional claim was either “debatable or

wrong.” Id.

      Mr. McCauley contends that his due process rights were violated when he

was charged with escape in the disciplinary hearing, because Okla. Stat. tit. 21,

§ 443(C) provides that an inmate assigned to an alternative to incarceration

cannot be charged with the felony of escape unless he is absent for more than 24

hours. But even assuming that he has properly construed § 443(C), the Oklahoma


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statute, as both the magistrate judge and district court correctly pointed out, deals

only with the felony crime of escape, and not with the definition of escape for

purposes of a disciplinary proceeding. Mr. McCauley has not directed us to any

prison regulation indicating that disciplinary charges for escape cannot be brought

unless a prisoner is absent more than 24 hours. This challenge therefore must

fail.

        Mr. McCauley also appears to challenge the use of the some-evidence

standard in determining his guilt at the disciplinary proceedings. But the United

States Supreme Court has held that although prisoners retain due process rights

during disciplinary hearings, “[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, 418 U.S. at 556. Due process is satisfied in

a prison disciplinary hearing if “some evidence” supports the decision.

Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455 (1985). Furthermore,

“[a]scertaining whether this standard is satisfied does not require examination of

the entire record, independent assessment of the credibility of witnesses, or

weighing of the evidence. Instead, the relevant question is whether there is any

evidence in the record that could support the conclusion reached by the

disciplinary board.” Id. at 455-56. That standard was met here.




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      Finally, Mr. McCauley contends that he was entitled to an evidentiary

hearing in district court. But he has failed to point to any relevant factual issue

that could be illuminated at such a hearing.

      In short, no reasonable jurist could determine that the district court erred in

denying Mr. McCauley’s due process claims. Moreover, because Mr. McCauley

has not shown "the existence of a reasoned, nonfrivolous argument on the law and

facts in support of the issues raised on appeal," we deny his application to

proceed IFP. See DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991).

      We DENY Mr. McCauley’s application for a COA, DENY his request to

proceed IFP, and DISMISS the appeal.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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