                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 November 23, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    JERRY L. THOMAS,

                Petitioner–Appellee,

    v.                                                   No. 09-6096
                                                 (D.C. No. 5:08-CV-01321-W)
    DAVID PARKER, Warden,                               (W.D. Okla.)

                Respondent–Appellant.


                             ORDER AND JUDGMENT *


Before LUCERO, GORSUCH, and HOLMES, Circuit Judges.



         Warden David Parker appeals the district court’s grant of prisoner Jerry L.

Thomas’ 28 U.S.C. § 2241 habeas petition. For substantially the same reasons

stated by the district court, we affirm.

         Thomas was the subject of a prison disciplinary proceeding while

incarcerated at the James Crabtree Correctional Center. He was found guilty of



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
possession of contraband—a prayer cap—which resulted in the revocation of

thirty earned credits. Thomas appealed the decision through the proper

administrative channels and through the state court system to no avail.

      Thomas then filed a § 2241 petition in federal court. A magistrate judge

recommended that relief be granted on Thomas’ claim that he was charged with

possession of contraband in retaliation for exercising his First Amendment right

to file a grievance. The district court adopted the magistrate judge’s report and

recommendation, and granted Thomas’ petition. This appeal followed.

                                          I

      In an appeal of a district court’s grant of a § 2241 petition, we review legal

issues de novo and factual findings for clear error. See United States v.

Eccleston, 521 F.3d 1249, 1253 (10th Cir.), cert. denied 129 S. Ct. 430 (2008).

      According to Thomas, he filed a grievance against mail room clerk

Shannon Reed on April 20, 2007. Later that day, Warden Parker and Captain Jim

Reed—a prison official and the husband of Shannon Reed—approached Thomas.

They requested he withdraw the grievance. When Thomas refused, Warden

Parker became angry and threatened to make it difficult for Thomas to exhaust

administrative remedies. Warden Parker then pointed to Thomas’ prayer cap and

stated it was contraband. He ordered Captain Reed to file the above-noted

disciplinary charge. Thomas had worn the prayer cap every day for the preceding

year without incident.

                                         -2-
      Neither Warden Parker nor Captain Reed submitted a statement

controverting Thomas’ version of events; instead Warden Parker submitted an

affidavit from the prison grievance manager stating that “the standard practice is

the warden would not have seen the grievance.” We agree with the magistrate

judge and the district court that this affidavit does not contradict Thomas’ account

of the April 20, 2007 encounter, and that his account was sufficient to show

retaliation. See Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998).

      On appeal, Warden Parker contends the district court erred by failing to

take judicial notice of affidavits filed in another case. These affidavits were first

brought to the court’s attention in Warden Parker’s objection to the magistrate

judge’s report and recommendation. The district court noted that Warden Parker

had provided no valid excuse for the dilatory submission and ruled the affidavits

would not be considered. We discern no abuse of discretion in the court’s ruling.

See O’Toole v. Northrop Grumman Corp., 499 F.3d 1218, 1224 (10th Cir. 2007).

                                          II

      AFFIRMED.


                                                     Entered for the Court



                                                     Carlos F. Lucero
                                                     Circuit Judge




                                          -3-
