                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                    UNITED STATES COURT OF APPEALS                   July 29, 2014
                                TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                     Clerk of Court


 CHRISTOPHER COUNTS,

              Petitioner - Appellant,
                                                         No. 14-8028
 v.                                            (D.C. No. 2:13-CV-00169-SWS)
                                                       (D. Wyoming)
 EDDIE WILSON, Wyoming
 Department of Corrections State
 Penitentiary Warden; TODD
 MARTIN, Wyoming Department of
 Corrections State Penitentiary Deputy
 Warden; VICKI SMITH, Wyoming
 Department of Corrections State
 Penitentiary Manager, in both their
 official and individual capacities,

              Respondents - Appellees.


                            ORDER DENYING
                     CERTIFICATE OF APPEALABILITY *


Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.



      Petitioner and Appellant, Christopher Counts, a state prisoner proceeding

pro se, seeks a certificate of appealability (“COA”) to enable him to appeal the

district court’s dismissal of his action, which the court construed as a petition for


      *
       This order is not binding precedent, except under the doctrines of law of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.
a writ of habeas corpus under 28 U.S.C. § 2241. Having concluded that he fails

to meet the standards for issuance of a COA, we deny Mr. Counts’ request for a

COA and dismiss this matter.

      Mr. Counts is currently incarcerated at the Wyoming State Penitentiary

serving a three to nine year sentence, as well as a concurrent two to nine year

sentence. After he completes those sentences, Mr. Counts will serve two

concurrent life sentences for aggravated burglary and kidnaping.

      Following an investigation into an inmate assault which occurred on

March 12, 2013, Mr. Counts was charged with one count of predatory major

assault (MJ13P) and one count of predatory major assault-conspiracy (MJ13P). 1

Penitentiary officials conducted a disciplinary hearing on April 23, 2013, and

found Mr. Counts not guilty of both violations. Deputy Warden Todd Martin

subsequently remanded the matter for rehearing because Corporal Elizizi, the

officer who had performed the investigation into the assault incident, had

misunderstood a question he was asked during the hearing and the answer he gave

was the reason Mr. Counts was found not guilty.

      On remand, an alternate hearing officer, Unit Manager Vicki Smith, was

appointed to consider the case. A second disciplinary hearing was conducted on

      1
        The district court determined that “[a] MJ13P violation is defined as ‘[a]ny
willful use of force or violence that causes serious physical injury to another
either with or without a weapon, or through the use of any substance, instrument,
or device which can cause serious physical injury.’” Order Granting Respondents’
Mot. for Summ. J. at 2 n.2 (quoting ECF No. 19-5) (hereafter “Order”).

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May 6, 2013, at which Mr. Counts pled not guilty and requested three witnesses:

Warden Eddie Wilson, Inmate Bernard (the victim of the assault) and Inmate

Ostert (the other inmate involved in the assault incident). The hearing officer

declined to permit all three of Mr. Counts’ witnesses to appear and/or testify.2

Mr. Counts asserts the hearing officer refused to call the Warden because he does

not have to appear at disciplinary hearings and the inmates because they

implicated a security risk.

      Unit Manager Smith ultimately found Mr. Counts not guilty of the assault

but guilty of the conspiracy to assault. Mr. Counts was given sixty days of

administrative segregation, of which he had already served fifty-five days. He

appealed the disciplinary conviction to Warden Wilson, claiming his due process

      2
       The district court stated as follows regarding this second disciplinary
hearing:

      The Disciplinary Hearing Record apparently conflicts with the audio
      recording regarding Petitioner’s requested witnesses. Petitioner
      asserts he requested Warden Wilson and Inmates Bernard and Ostert,
      but the Hearing Record indicates he requested Wilson, Ostert and
      Sgt. Goodman. Respondents represent that the audio recording
      confirms Petitioner’s account. Further conflict exists regarding the
      reasons for excluding the witnesses, as the Hearing Record simply
      indicates Ostert was excluded because of the inmates’ “segregated
      status.” Again, Respondents represent that the audio recording of the
      hearing provides the hearing officer’s stated reasons. Because a copy
      of the audio recording is not in the record, the Court, in considering
      the motion for summary judgment, will accept Petitioner’s assertions
      for the reasons given for denial of the witnesses he requested.

Order at 3 n.4 (record citations omitted). We accept the district court’s
representations and decision in this regard.

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rights were violated by the appointment of a hearing officer who was “not a

neutral individual” and by the denial of his requested witnesses. On June 4, 2013,

Warden Wilson denied Mr. Counts’ appeal and upheld the hearing officer’s

decision.

      On August 23, 2013, Deputy Warden Martin reduced Mr. Counts’

conviction from MJ13P to MJ13, which resulted in the withholding of good time

allowances for a three-month period, rather than a twelve-month period. See

Order at 4 n.5. As a result of the MJ13 conviction, when the Records Manager

completed the quarterly good time review for all inmates, in accordance with the

Department of Corrections’ “Good Time Policy and Procedure,” Mr. Counts lost

the ability to earn good time credits for three months.

      Mr. Counts filed the instant action, initially characterizing it as a civil

rights complaint under 42 U.S.C. § 1983. Because he was challenging the

execution of his sentence, the district court construed it as a habeas petition under

28 U.S.C. § 2241. Mr. Counts argued his due process rights in connection with

the disciplinary hearing were violated in two ways: (1) the rehearing was

conducted by a non-neutral individual (i.e., Unit Manager Vicki Smith), who was

also involved in Mr. Counts’ administrative segregation hearing in April of 2013;

and (2) he was not permitted to call the witnesses he requested. Mr. Counts

claims the due process violations resulted in his receiving segregation time and in

the loss of his good time credits. He asked the district court to award him

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monetary damages, grant him declaratory and injunctive relief, and provide him

with a trial by a jury with representation by counsel. Respondents moved for

summary judgment, arguing Mr. Counts was not entitled to any habeas corpus

relief. The district court granted relief to the Respondents, granting their motion

for summary judgment. The court held as follows:

      Petitioner Counts raises a claim of violation of due process relating
      to his disciplinary proceeding which resulted in segregation time and
      the loss of his ability to earn good time credit. Although defined
      more narrowly, the due process guarantee in the Fourteenth
      Amendment to the United States Constitution applies to prison
      inmates. Wilson v. Jones, 430 F.3d 1113, 1117 (10th Cir. 2005).
      However, due process protections apply only when a person is
      deprived of a liberty or property interest. See Templeman v. Gunter,
      16 F.3d 367, 369 (10th Cir. 1994). Although not expressly stated in
      his pleadings, it appears Petitioner is alleging the deprivation of a
      liberty interest by the segregation time and loss of good time credit.
      A liberty interest may arise from the Constitution itself or from an
      expectation or interest created by state law or policies. Wilkinson v.
      Austin, 545 U.S. 209, 221 (2005). “[T]he Constitution itself does not
      guarantee good-time credit for satisfactory behavior while in prison.”
      Wolff v. McDonnell, 418 U.S. 539, 557 (1974). Likewise, “[t]he
      Due Process Clause standing alone confers no liberty interest in
      freedom from state action taken within the sentence imposed.”
      Penrod v. Zavaras, 94 F.3d 1399, 1406 (10th Cir. 1996) (quoting
      Sandin v. Conner, 515 U.S. 472, 480 (1995)).

             States may under certain circumstances, through statutes or
      prison regulations, create liberty interests which are protected by the
      Due Process Clause. “But these 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.” Id. at 484. “Discipline by prison officials in response to a
      wide range of misconduct falls within the expected perimeters of the
      sentence imposed by a court of law.” Id. at 485. The Court finds
      Petitioner’s disciplinary segregation did not implicate a protected
      liberty interest triggering due process protections. See Penrod, 94

                                         -5-
      F.3d at 1407 (dismissing plaintiff’s due process claim as meritless
      because prison regulations allowing placement in administrative
      segregation did not create liberty interest).

Order at 6-7; R. Vol. 1 at 237-38.

      After concluding that neither Wyoming law nor prison policies and

procedures created a liberty interest in good time credits, the court declared that

Mr. Counts “could have no legitimate expectation in or entitlement to any amount

of good time credit.” Order at 8; R. Vol. 1 at 239. See Fogle v. Pierson, 435

F.3d 1252, 1262 (10th Cir. 2006) (finding no liberty interest implicated where

good time credits are discretionarily awarded); Hallmark v. Johnson, 118 F.3d

1073, 1079-80 (5th Cir. 1997) (finding inmates have no protected liberty interest

in the restoration of good time credits revoked for disciplinary infractions where

state law provides that such credits are a privilege not a right and awarded at the

discretion of correctional authorities). Because Mr. Counts had not shown a

liberty interest was implicated in this case, the court found no due process

violation and accordingly denied habeas relief. The court granted the

Respondents’ motion for summary judgment and denied as moot all other

motions. The court then denied Mr. Counts a COA.

      Mr. Counts request a COA from this court to enable him to appeal the

district court’s order. We decline.

      A state prisoner must obtain a COA before pursuing a habeas petition.

Allen v. Zavaras, 568 F.3d 1197, 1199 (10th Cir. 2009); 28 U.S.C.

                                         -6-
§ 2253(c)(1)(A). A COA will issue “only if the applicant has made a substantial

showing of the denial of a constitutional right,” which is accomplished when an

applicant shows “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) (quotation omitted).

      As indicated, the district court thoroughly explained why Mr. Counts’

petition fails. No reasonable jurist could dispute the propriety of that analysis

and conclusion.

      For the foregoing reasons, we DENY Mr. Counts a COA and DISMISS this

matter. We also DENY his request to proceed on appeal in forma pauperis.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




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