                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         APR 28 2000
                                  TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 KENNETH LYLE SPANGLE,

          Petitioner-Appellant,
 v.                                                Nos. 99-1370, 99-1371
 WARDEN HOLT, USP Florence,                   (D.C. Nos. 99-Z-640, 99-M-641)
                                                         (D. Colo.)
          Respondent-Appellee.




                            ORDER AND JUDGMENT *


Before BALDOCK, HENRY, and LUCERO, Circuit Judges. **


      Petitioner Kenneth Lyle Spangle, proceeding pro se, filed two petitions for

a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in federal district court

challenging federal prison disciplinary actions. The district court dismissed the

petitions and denied Petitioner’s motions to proceed in forma pauperis on appeal,



      *
        This order and judgment is not binding precedent, except under the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.
      **
         After examining the briefs and appellate record, the panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2)(c); 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument.
concluding that the appeals were not taken in good faith.       See 28 U.S.C.

§ 1915(a)(3); Fed. R. App. P. 24(a)(3). Petitioner appeals the dismissals and

renews his motions to proceed in forma pauperis on appeal. This court

consolidated these cases on its own motion. We exercise jurisdiction pursuant to

28 U.S.C. § 1291.   1
                        We deny Petitioner’s motions and dismiss the appeals.   2



      In the first district court case, Petitioner challenges a prison disciplinary

conviction that deprived him of good time credits. Petitioner was convicted of

fighting: a guard testified that he saw Petitioner kicking his cellmate, Stevens,

who was lying face down on the floor of the cell. Petitioner alleges that the

disciplinary proceedings deprived him of due process. He seeks restoration of

good time credits and expunction of the incident report. The district court

properly construed this challenge to a prison disciplinary action as a proceeding

      1
          The district court entered judgment in 99-Z-640 on June 15, 1999 and
entered judgment in 99-M-641 on June 14, 1999. Petitioner had 60 days to file a
notice of appeal. See Fed. R. App. P. 4(a)(1)(B). The time periods expired on
August 16 and August 13, respectively.       The district court docketed Petitioner’s
notice of appeal on August 19. The date on the face of Petitioner’s notice of
appeal, however, is August 6. Because this date raises an inference that
Petitioner relinquished control over the notice to prison authorities on that day,
the notice of appeal was timely filed under the “prisoner mailbox rule.”      See
Houston v. Lack , 487 U.S. 266, 275-76 (1988) (filing occurs when the pro se
prisoner delivers the documents to prison authorities for mailing).
      2
         Petitioner, as a federal prisoner appealing a district court’s denial of a
petition under § 2241, does not need a certificate of appealability under 28 U.S.C.
§ 2253(c)(1). See Montez v. McKinna , ___ F.3d ___, ___, 2000 WL 342235, at
*3 (10th Cir. Apr. 3, 2000); cf. id. at *4 (applying the certificate of appealability
requirement to state prisoners filing petitions under § 2241).

                                             -2-
under 28 U.S.C. § 2241, see McIntosh v. United States Parole Comm’n      , 115 F.3d

809, 812 (10th Cir. 1997), but dismissed the petition, concluding that Petitioner

was not deprived of due process. Petitioner also challenged the conditions of his

confinement pursuant to    Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics , 403 U.S. 388 (1971). He alleged that sharing a cell with Stevens

violated his Eighth Amendment rights. Because Petitioner asserted no claims for

relief under the Eighth Amendment, the district court declined to consider the

claim on the merits.   3



       In the second case, Petitioner challenges another prison disciplinary action.

Prison officials disciplined Petitioner for violating a rule against indecent

exposure by sitting naked in his cell while a female guard conducted a census.

Petitioner disputes that his actions constituted indecent exposure and argues that

the incident report was overly vague because it failed to specify which parts of his

body he exposed. He again seeks restoration of good time credits and expunction

of the incident report. The district court dismissed the petition, concluding that it

too failed to state any factual basis for relief.

       To proceed on appeal in forma pauperis from the dismissal of a § 2241

petition, a petitioner must show both “a financial inability to pay the required fees


       3
         Even if Petitioner had sought relief other than the restoration of good
time credits and the expunction of the incident reports, we would still conclude
that Petitioner’s Eighth Amendment claims lack merit.

                                           -3-
and the existence of a reasoned, nonfrivolous argument on the law and facts in

support of the issues raised on appeal.”    McIntosh , 115 F.3d at 812. After

thoroughly reviewing the records on appeal, Petitioner’s briefs, and the district

court’s orders, we conclude that the arguments Petitioner raises in support of his

petitions are meritless substantially for the reasons set forth in the district court’s

orders. Accordingly, we deny Petitioner’s motions to proceed in forma pauperis

on appeal and dismiss his appeals.     See Hirsch v. Secretary of the Army   , No. 98-

1468, 1999 WL 110549, at *2 (10th Cir. Mar. 2, 1999) (unpublished) (dismissing

the appeal of a petitioner who failed to make a nonfrivolous argument for relief).

       MOTIONS DENIED; APPEALS DISMISSED.


                                           Entered for the Court,


                                           Bobby R. Baldock
                                           Circuit Judge




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