                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                August 20, 2010
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                  Clerk of Court
                                  TENTH CIRCUIT



 HAROLD DEAN HORNSBY,

                 Petitioner-Appellant,                  No. 10-6064
          v.                                          (W.D. of Okla.)
 JUSTIN JONES, Director of D.O.C.;             (D.C. No. 5:09-CV-00418-R)
 EDWARD EVANS, Assistant Director
 of D.O.C.; J.D. DANIELS, Assistant
 Director of the Parole Board,

                 Respondents-Appellees.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges. **


      Harold Hornsby, an Oklahoma state prisoner proceeding pro se, appeals the

dismissal of his habeas petition. The petition complains of an allegedly improper

prison disciplinary conviction and poor prison conditions. The district court

construed Hornsby’s petition as one filed pursuant to 28 U.S.C. § 2241, because



      *
         This order is not binding precedent except under the doctrines of law of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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
challenges to disciplinary convictions are generally treated as attacks on the

execution of a prisoner’s sentence. See Montez v. McKinna, 208 F.3d 862, 865

(10th Cir. 2000). Prisoners bringing § 2241 claims must receive a certificate of

appealability (COA) before their appeals may be heard in this court. See id. at

869.

       The district court’s assessment of Hornsby’s constitutional claims is correct

and beyond reasonable debate, see Slack v. McDaniel, 529 U.S. 473, 484 (2000).

We therefore DENY Hornsby a COA and DISMISS his appeal.

                                  I. Background

       At the time Hornsby filed his habeas petition, he was confined at the

Oklahoma State Penitentiary (OSP). Hornsby does not challenge his initial

conviction. But he contends two prison disciplinary convictions he received in

August 2008 when he was confined at the Oklahoma State Reformatory (OSR)

were illegal. Hornsby alleges that in January 2008, the Pardon and Parole Board

(Parole Board) granted him a favorable parole recommendation with the

requirement that he complete a cognitive behavior change program prior to

parole. Hornsby completed the program in May 2008, but in August of that same

year was charged with the offense of possessing the legal materials of another

prisoner. A disciplinary hearing found him guilty and assessed him a $5.00 fine.

Shortly thereafter, Hornsby was also charged and found guilty of using the mail to

conduct illegal business.

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      As sanctions for the misconduct, Hornsby was assigned to the prison’s

disciplinary segregation unit for 20 days and was demoted to earned credit

classification level 1. In September 2008, based on the misconduct and

Hornsby’s new classification, prison officials recommended Hornsby’s custody

level be increased to maximum security, where officials could more closely

monitor his mail, phone, and other correspondence. Accordingly, prison officials

transferred him to OSP near the end of September 2008. Approximately one

month later, the Parole Board withdrew its parole recommendation.

      Hornsby filed this habeas petition contesting the actions of the prison

officials and the Parole Board.

                                  II. Discussion

      When a state prisoner appeals the district court’s denial of a § 2241 habeas

petition, we have held a COA is necessary “whenever ‘the detention complained

of [in the petition] arises out of process issued by a State court.’” Montez, 208

F.3d at 867. 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). As part

of that showing a petitioner must show “that reasonable jurists could debate

whether” the district court should have “resolved [the petition] in a different

manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Slack, 529 U.S. at 484 (quotation marks omitted). In other

words, the applicant must show the district court's resolution of the constitutional

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claims were “debatable or wrong.” Id. Because Hornsby is proceeding pro se, we

will construe his petition liberally. Abdulhaseeb v. Calbone, 600 F.3d 1301, 1311

(10th Cir. 2010).

      Hornsby alleges three constitutional violations to support his habeas

petition. For substantially the same reasons, we agree with the district court that

he has failed to show the denial of a constitutional right.

      First, Hornsby argues prison officials deprived him of due process during

the disciplinary proceedings regarding his two August 2008 misconduct violations

because there was no credible evidence to support findings of guilt. We agree

with the district court that Hornsby’s challenge to his disciplinary convictions

fails to implicate a protected liberty interest and thus we need not address his due

process arguments.

      The Supreme Court long ago held that the “requirements of procedural due

process apply only to the deprivation of interests encompassed by the Fourteenth

Amendment’s protection of liberty and property.” Board of Regents v. Roth, 408

U.S. 564, 569 (1972). Here, such an interest does not exist. The Supreme Court

has held that while “States may under certain circumstances create liberty

interests which are protected by the Due Process Clause. . . . [T]hese interests will

be generally limited to freedom from restraint which . . . imposes atypical and

significant hardship on the inmate in relation to the ordinary incidents of prison

life.” Sandin v. Conner, 515 U.S. 472, 483–84 (1995).

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      Hornsby’s punishment was hardly atypical. As a result of his disciplinary

convictions, he received a total of 20 days of segregation, a reduction in credit

level for 60 days, and two separate fines. These do not rise to the level of

disciplinary measures that “inevitably affect the duration of [Hornsby’s]

sentence.” Id. at 487. Further, inmates have no constitutionally protected interest

in the opportunity to earn discretionary good time credits and thus have no

interest in any particular credit classification level. Fogle v. Pierson, 435 F.3d

1252, 1262 (10th Cir. 2006). Finally, a sentence of 20 days in disciplinary

segregation does not rise to the level of punishment that would invoke

constitutional concern. See Sandin, 515 U.S. at 483–84 (holding thirty days in

disciplinary segregation does not rise to the level of punishment invoking the Due

Process Clause).

      Because no liberty interest is implicated in Hornsby’s discipline, his claim

fails to allege the violation of any constitutional right.

      Second, Hornsby claims prison officials violated his due process rights

because they failed to give him notice and an opportunity to be heard prior to his

placement in disciplinary segregation at OSR, his transfer to OSP, and the

withdrawal of his Parole Board recommendation. He also argues prison officials

violated his due process rights because they failed to comply with internal prison

regulations. We disagree.




                                           -5-
      After Hornsby’s convictions, the adjustment review committee at OSR

assessed his security classification and used its discretion to place Hornsby at the

maximum security level classification, resulting in his segregation and transfer.

This also did not deprive him of a liberty interest because, as we have previously

held, an adjustment review committee’s decision to adjust a prisoner’s

classification level based on discretionary factors does not implicate a liberty

interest. See Cardoso v. Calbone, 490 F.3d 1194, 1198 (10th Cir. 2007);

Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994) (“Changing an inmate’s

prison classification ordinarily does not deprive him of liberty, because he is not

entitled to a particular degree of liberty in prison.”).

      Further, the Parole Board did not violate Hornsby’s due process rights by

failing to give him notice and an opportunity to be heard before withdrawing his

parole recommendation. Both the Tenth Circuit and the Oklahoma Supreme

Court have found that Oklahoma parole statutes do not create a liberty interest in

early release. Shirley v. Chestnut, 603 F.2d 805, 807 (10th Cir. 1979); Shabazz v.

Keating, 977 P.2d 1089, 1093 (Okla. 1999). Absent a liberty interest in parole,

Hornsby is not entitled to due process protection. Shirley, 603 F.2d at 807.

      Moreover, prison regulations are “primarily designed to guide correctional

officials in the administration of a prison. [They are] not designed to confer rights

on inmates.” Sandin, 515 U.S. at 481–82. Thus, that prison officials failed to




                                           -6-
comply with their own guidelines does not provide Hornsby with a due process

claim.

         Hornsby’s third and final claim is that his confinement at OSP represents

an atypical and significant hardship compared to ordinary confinement. His

arguments fail, however, because prisoners who wish to challenge the conditions

of their confinement, as opposed to its fact or duration, must do so through 42

U.S.C. § 1983, not through federal habeas proceedings. See Preiser v. Rodriguez,

411 U.S. 475, 499–500 (1973); McIntosh v. U.S. Parole Comm’n, 115 F.3d 809,

811–12 (10th Cir. 1997).

         We thus agree with the district court’s decision to dismiss Hornsby’s

confinement claims without prejudice.

                                   III. Conclusion

         For the foregoing reasons, we DENY Hornsby a COA and DISMISS this

appeal. We GRANT Hornsby’s request to proceed in forma pauperis.

                                                 ENTERED FOR THE COURT

                                                 Timothy M. Tymkovich
                                                 Circuit Judge




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