                                                                                 FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit

                         UNITED STATES COURT OF APPEALS                      July 21, 2008

                                      TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                             Clerk of Court


 GREGORY HENDERSON,

           Petitioner-Appellant,
 v.                                                            No. 06-7038
 MARTY SIRMONS, Warden,                                  (D.C. No. CV-02-621-S)
                                                            (E. D. Oklahoma)
           Respondent-Appellee.



                                   ORDER AND JUDGMENT*


Before HENRY, BRISCOE, and O’BRIEN, Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore,

submitted without oral argument.

       Gregory Henderson, an Oklahoma inmate proceeding pro se, seeks a certificate of

appealability (COA) in order to challenge the district court’s dismissal of his federal



       *
        This order and judgment is not binding precedent, except under the doctrines of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.
habeas corpus action seeking restoration of good time credits. Exercising jurisdiction

pursuant to 28 U.S.C. § 1291, we grant Henderson’s application for COA, reverse the

judgment of the district court, and remand the case to the district court with directions to

conduct an evidentiary hearing, and such other proceedings as may be necessary, on

Henderson’s claims.

                                              I.

       In 1988, the Oklahoma Department of Corrections (the Department), acting

pursuant to a statutory directive, instituted a system of good time credits, whereby

prisoners could reduce their term of imprisonment for good conduct. See Okla. Stat. Ann.

tit. 57, § 138. The statute authorized the Department to develop “a written policy and

procedure whereby inmates shall be assigned to one (1) of four (4) class levels . . . .” Id.

§ 138(B). In accordance with the statute, Level 1 inmates earned zero points per month

of credit; Level 2 inmates earned 22 points; Level 3 inmates earned 33 points; and Level

4 inmates earned 44 points, each point being one day off the inmate’s prison time. The

policy enacted by the Department provided for “an adjustment review committee/unit

treatment team . . . composed of not less than three staff members” to review an inmate’s

earned good time credit level every three to four months and determine whether the

inmate’s behavior warranted a promotion to a higher level.

       Henderson began serving a thirty-year sentence for armed robbery on July 20,

1993, and is facing a consecutive thirty-year sentence, also for armed robbery, that is set

to commence on January 3, 2021. On October 5, 1994, while incarcerated at an

                                              2
Oklahoma correctional center, Henderson assaulted a staff member. After a hearing, he

was found to have committed the Class A offense of Battery Upon Staff with Injury, and

received thirteen misconduct security points. Henderson sought review through the

prison appeal process, but was unsuccessful.

       The misconduct security points affected Henderson’s prison time in two ways.

First, the misconduct security points were taken into account by the Department in

determining his security level (security levels, as distinguished from earned good time

credit levels, are used by the Department to determine which facility in which to place an

inmate). Second, they were treated as active misconduct security points. Under the

Department’s 1994 policies, active misconduct security points prevented an inmate from

being promoted to Levels 3 or 4 for the purpose of earning good time credits, until such

time as the active misconduct security points “expire[d]” or were “dropped.” R. Vol. 2,

Attach. 9, OP 060103 § 111(C)(2). Notably, however, the record on appeal is devoid of

any further information as to how or when, under the Department’s 1994 policies, active

misconduct security points expired or were dropped.

       On April 9, 1997, the Department revised its way of determining an inmate’s

earned good time credit level. The revised instructions stated, in pertinent part: “There is

no expiration on the current incarceration or within 10 years of the current incarceration

for” Battery on Staff offenses. R. Vol. 2, Attach. 16 at 7, OP-060103(I)(B)(7) (1997). A

related policy was also revised to allow for active misconduct security points to “be

dropped after one year” “[f]or purposes of earned credit class assignment only,” if

                                             3
accompanied by “supporting documentation . . . .” Id., OP-060213, Addendum 4, Major

Changes (1997).

       In July 1997, Henderson was promoted to Level 3 without an explicit statement by

the Department that his active misconduct security points were dropped. Six months

later, however, he was demoted for bad conduct. In March 1998, Henderson was again

promoted to Level 3. Unable to maintain good behavior, Henderson was demoted five

months later.

       In March 2000, the Department again changed its policies. The revised policy

required the “waiver” of active misconduct security points arising from offenses such as

Henderson’s to be approved by “the facility head after . . . one year . . . .” R. Vol. II,

Attach. 25 at 4-5, OP-060107(I)(D)(2) (2000). But in July 2000, Henderson was

promoted to Level 3 without any supporting documentation and without approval by the

facility head. He was, however, later demoted.

       On October 8, 2001, an adjustment review committee concluded that Henderson

was entitled to be promoted to Level 3, effective November 1, 2001. The promotion was

ultimately rejected, however, on the grounds that Henderson’s Battery on Staff offense

rendered him “ineligible” for promotion Level 3. R, Vol. 2, Attach. 35.

       On October 9, 2001, Henderson filed a grievance claiming that the misconduct

security points arising out of his Battery on Staff offense had expired after two years (i.e.,

on October 5, 1996), pursuant to the Department policies in effect at the time of that

offense. As a result, he claimed, he was eligible for promotion to Level 3 in 1997 and

                                               4
beyond. In response, Henderson’s case manager wrote, “When you get [a Battery on

Staff offense] it does not drop off for ten years. [A]pparently someone dropped it off

after 2 years. [O]bviously, someone else noticed it and had to add it back on.” R. Vol. 1,

Dec. 05, 2001 Request to Staff. A few days later, the Department audited Henderson’s

good time credits. Because Henderson’s file contained no waiver of his active

misconduct security points, and because other computational errors were found to exist,

the Department deducted 249 earned good time credits from his total credits.

         After exhausting his administrative remedies, Henderson filed this action claiming,

under the Department’s 1994 policy, that his misconduct security points either expired or

were dropped. Henderson further claimed that the Department’s application of the 1997

and 2001 policies to his Battery on Staff offense violated the Due Process and Ex Post

Facto Clauses. The magistrate judge assigned to the case recommended that Henderson’s

ex post facto claim be denied on the grounds that any changes in the Department’s

policies were merely a change in Henderson’s custodial status, and not an increase in the

measure of his punishment. The district court ultimately adopted the magistrate judge’s

recommendation and dismissed Henderson’s petition, concluding the Department’s

application of its amended policies to Henderson did not violate the prohibition against ex

post facto laws.1 Thereafter, the district court denied Henderson’s application for a COA.

Henderson has since renewed his application for COA with this court.



         1
             Neither the district court nor the magistrate addressed Henderson’s due process
claim.

                                                 5
                                             II.

       Issuance of a COA is a jurisdictional prerequisite to our review. Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003). A COA may be issued “only if the applicant has

made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). In order to make that showing, a prisoner must demonstrate “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).

                                             III.

       Henderson contends the application of the Department’s 1997 and 2000 policies

violated the Ex Post Facto Clause in two ways. First, he claims that under the

Department’s 1994 policies, active misconduct security points expired after two years,

but that the 1997 and 2000 policies eliminated that provision to his detriment. Second, he

claims that under the Department’s 1994 policies, his active misconduct security points

could be waived, but that the 1997 and 2000 policies deprived him of that opportunity.

As a result, he claims the 1997 and 2000 policies have resulted in a substantial increase in

his prison term.

       The district court did not directly address these issues. Instead, citing our decision

in Dyke v. Meachum, 785 F.2d 267 (10th Cir. 1986), the district court held, as a matter of

law, that the 1997 and 2000 policies did not implicate the Ex Post Facto Clause. For the


                                              6
reasons that follow, we conclude the district court erred in so holding.

       Article I, § 10 of the Constitution prohibits the states from enacting an “ex post

facto law.” “[T]he Clause is aimed at laws that retroactively alter the definition of crimes

or increase the punishment for criminal acts.” California Dep’t of Corr. v. Morales, 514

U.S. 499, 504 (1995) (internal quotation marks and citations omitted). “[T]he focus of

the ex post facto inquiry is not on whether a legislative change produces some ambiguous

sort of ‘disadvantage,’ nor . . . on whether an amendment affects a prisoner’s ‘opportunity

to take advantage of provisions for early release,’ but on whether any such change alters

the definition of criminal conduct or increases the penalty by which a crime is

punishable.” Id. at 506 n.3 (citation omitted; italics in original).

       In Dyke, we held that the Ex Post Facto Clause was not implicated by the

Department’s promulgation of a new classification system requiring that inmates serve

twenty percent of their sentences in order to be eligible for reclassification to minimum

security status, rather than the ten percent required under the former classification system.

In so holding, we concluded that, “in the absence of any showing of a punitive intent, the

Ex Post Facto Clause does not bar a prison from changing the regulations governing their

internal classification of prisoners.” 785 F.2d at 268.

       The district court’s reliance on Dyke in this case was misplaced for at least two

reasons. First, unlike the policies at issue here, the classification system at issue in Dyke

did not lengthen prisoners’ incarceration. Rather, it changed their eligibility for

placement within a different security level of the institution. Second, the policies at issue


                                               7
here, unlike the classification systems at issue in Dyke, were implemented by the

Department pursuant to a statutory directive enacted by the Oklahoma Legislature. As a

result, the policies at issue here can be fairly described as “legislative in nature,” and are

thus subject to the ex post facto prohibition. Smith v. Scott, 223 F.3d 1191, 1193-94

(10th Cir. 2000).

       In our view, the Supreme Court’s decision in Garner v. Jones, 529 U.S. 244

(2000), provides the controlling guidelines that we must follow in analyzing Henderson’s

claims. In Garner, the Court considered modified parole regulations that increased the

length of time between parole reviews for prisoners. Similar to the case at hand, the

policy at issue in Garner invested a certain amount of discretion in prison officials. The

Court noted “[t]he presence of discretion does not displace the protections of the Ex Post

Facto Clause,” but it “is often a question of particular difficulty when the discretion

vested . . . is taken into account.” Id. at 250, 253. The Court determined “[t]he question

is a matter of degree,” with “[t]he controlling inquiry . . . [being] whether retroactive

application of the change . . . created a sufficient risk of increasing the measure of

punishment attached to the covered crimes.” Id. at 250 (quotations omitted). Thus, in

order to establish that a prison policy violates the Ex Post Facto Clause, an inmate must

either demonstrate “the rule, . . . by its own terms show[s] a significant risk” of increasing

his punishment or present “evidence drawn from the rule’s practical implementation by

the agency charged with exercising discretion, that its retroactive application will result in

a longer period of incarceration than under the earlier rule.” Id. at 255 (emphasis added).


                                               8
       Having reviewed the record on appeal in this case, it is apparent there is some

confusion regarding how the Department actually applied its policies to Henderson’s

1994 Battery on Staff offense. Some of the statements by correction officials support the

view that the Department relied on the 1997 policies in determining how that offense

affected Henderson’s good time credits and the length of his sentence. Accordingly, we

conclude it is necessary to remand this case for an evidentiary hearing at which the

district court can determine how the Department applied the various regulations at issue

to Henderson. See Miller v. Champion, 161 F.3d 1249, 1258-59 (10th Cir. 1998)

(remanding a § 2254 petition for an evidentiary hearing to develop the factual record).

       The request for a COA is GRANTED. The judgment of the district court is

REVERSED and the case REMANDED to the district court with directions to conduct an

evidentiary hearing, and such other proceedings as may be necessary, on Henderson’s

claims for federal habeas relief.


                                                 Entered for the Court


                                                 Mary Beck Briscoe
                                                 Circuit Judge




                                             9
06-7038 Henderson v. Sirmons

O’BRIEN, J., dissenting.


       Henderson is long on allegations and arguments, but short on proofs. It is his

burden to support his claims. Since he failed to do so I respectfully dissent.


       The Department argues the policies regarding Henderson’s eligibility for

Level 3 were not materially modified from the time of his battery on staff and

therefore were “nothing more than the correction of a misapplied existing law”

which did not implicate ex post facto considerations. Indeed, Henderson’s assault

on a staff member was, at the time it occurred, labeled a Class A offense, among

the most serious transgressions. Over time it has been re-labeled (now Class X)

but has never lost its status as most serious. The question is whether the direct and

probable consequences of the Department’s policy changes have improperly and

detrimentally impacted Henderson’s prison time by reducing his eligibility for

promotion and, derivatively, ability to earn good time.


       The policy on an inmate’s ability to progress to Level 3 or 4 changed over

the years. In a nutshell, with the exception of the 2003 policy, the changes were

procedural. The 1994 policy prevented a promotion to Level 3 or 4 if an inmate

had active misconduct security points but provided such points may be dropped

after one year (and once dropped, not be reactivated). It did not specify a

particular method for dropping the points or documenting the event. In April 1997

the policy changed slightly, requiring dropped points to be noted on the
“Adjustment Review.” 1 In all other material respects (as they impact this case) the

policy was unchanged. In March 2000, the policy again changed – permitting

points to be dropped (waived) 2 “with approval of the facility head.” No other

material changes affecting this case were made. In summary, the changes required

documentation of dropped points (1997) and specified the individual with

discretion to drop points (2000). In 2003, the policies deleted any reference to the

Department officials’ discretion to drop misconduct security points for a

conviction prior to that date. 3


      It is unclear whether the district court determined the policies themselves

were not subject to ex post facto analysis, or whether it accepted the Department’s

argument that the policies had not materially changed. The policies are subject to

an ex post facto inquiry. The question is whether the Department’s policy changes

created a significant risk of increasing the penalty imposed on Henderson in 1994

for battery on staff. To prevail, Henderson must demonstrate either “the [policy], .

. . by its own terms show[s] a significant risk” of increasing his punishment, or by



      1
        The change permits a proper and considered waiver (dropping points) to be
distinguished from an administrative error.
      2
       Dropped points and waiver (of the rule preventing promotion with active security
misconduct points) are synonymous.
      3
         Henderson filed his claim in 2002 and relies solely on the 1997 and 2000
policies. Because Henderson has not made a claim under the 2003 policies there is no
reason to address the possible ramifications of that change.

                                           2
presenting “evidence drawn from the [policy’s] practical implementation by the

agency charged with exercising discretion, that its retroactive application will

result in a longer period of incarceration than under the earlier [policy].” Garner

v. Jones, 529 U.S. 244, 255 (2000).


      As stated, the policies’ terms merely changed the procedure for dropping

points. Those changes are, of themselves, incapable of impacting the time

Henderson remains in prison. See id. at 250. Henderson needs a better argument.

He must demonstrate prison authorities would likely have exercised their

discretion to waive the promotion limitation in his case but for the 1997 and

subsequent procedural changes. To that end he argues his misconduct security

points were, in fact, dropped.


      Relying solely on his conclusory assertions, Henderson claims between

1994 and 1997 it was prison policy to routinely drop misconduct security points

after one year. However, he had no Level 3 or 4 promotions during that time. It is

difficult to reconcile his failure of promotion with his claim of a routine policy to

drop points. There may be an explanation, but the record is bare. Another factor

is more telling, the Department provided an affidavit of William Knowles,

Classification Coordinator for the Davis Correctional Facility, stating the prison

had no such policy. 4 Henderson has not rebutted with admissible evidence; his

      4
         Deference is due to the affidavit of Mr. Knowles but is not conclusive. Smith v.
Scott, 223 F.3d 1191, 1195 (10th Cir. 2000). Nevertheless, to avoid summary judgment

                                            3
argument fails for lack of evidentiary support.


      Henderson was promoted to and demoted from Level 3 several times

between July 1997 (after the effective date of the April 1997 policy changes) and

October 8, 2001. He claims an entitlement to reinstatement of the credit points

earned (but subsequently cancelled) during his tenure at Level 3. He fails,

however, to refute the Department’s claim his promotions were erroneously

granted or demonstrate how the Department’s correction of an error violates the ex

post facto provisions of the Constitution. While he claims he was given an

“override” in 1997, and several times thereafter, there is no documentation to that

effect as required by the 1997 policy. Other than the fact he was repeatedly (and

apparently erroneously) promoted to Level 3, he has presented no probative

evidence, by affidavit or otherwise, that his misconduct points were dropped or

that the promotion was, of itself, a waiver. Henderson argues documentation was

not required in 1994 and therefore its absence does not mean his misconduct

points were not dropped. His argument attempts to reallocate the burden of proof.

Henderson is required to show waiver. The obvious purpose of the 1997 policy

change was to prevent a presumption of waiver from a silent record, the very thing

Henderson seeks to do. Since there is no evidence of a waiver and no inference to

be drawn in Henderson’s favor, the summary judgment was properly granted.

(continued)
Henderson was required to produce admissible evidence demonstrating a genuine issue
of material fact on that issue. Rule 56(c), Fed. R. App. P. He did not.

                                          4
       The district court did not address Henderson’s due process claim despite his

objection that the claim was also ignored by the magistrate judge. Similarly, the

Department failed to brief the merits of the due process claim on appeal.

However, I fail to see how he was denied due process. Every policy since 1994 has

required the absence of misconduct points as a predicate for promotion to Level 3 or 4.

Each policy leaves a waiver to the Department’s discretion; the policies contain no

guarantee an inmate’s misconduct points would be automatically dropped nor do they

specify criteria controlling the exercise of discretion. On these facts there is no state

created liberty interest entitled to due process protection. See Sandin v. Connor, 515

U.S. 472 (1995).


       I would affirm the result ordained by district court’s judgment.




                                              5
