                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 23 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    BRYAN R. RAMER,

                Petitioner-Appellant,

    v.                                                    No. 00-5110
                                                    (D.C. No. 97-CV-383-B)
    RITA MAXWELL,                                         (N.D. Okla.)

                Respondent-Appellee.


                            ORDER AND JUDGMENT            *




Before EBEL , KELLY , and LUCERO , Circuit Judges.




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

unanimously that oral argument would not materially assist the determination of

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

therefore ordered submitted without oral argument.

         Petitioner Bryan R. Ramer seeks a certificate of appealability (COA)

permitting him to appeal the district court’s order denying relief on his petition


*
      This order and judgment is not binding precedent, except under the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.
for a writ of habeas corpus. Having determined that Mr. Ramer has failed to

make “a substantial showing of the denial of a constitutional right,” as required

by 28 U.S.C. § 2253(c)(2), we deny his request and dismiss the appeal.

      In 1978, Mr. Ramer was convicted in state court of kidnapping and armed

robbery. After accepting his guilty plea, the court sentenced Mr. Ramer to two

ten-year terms on the kidnapping charges and two twenty-five year sentences on

the armed robbery charges, to run concurrently. In 1983, Mr. Ramer escaped

from prison by not returning from a pass. He was apprehended the next day

following a “shoot out” with New Mexico law enforcement officers. He remained

in jail in New Mexico until 1992 serving the resulting sentences. In 1984,

Oklahoma placed a detainer on him. Thus, upon service of the New Mexico

sentences, Mr. Ramer was returned to Oklahoma.

      When Mr. Ramer returned to Oklahoma, a prison misconduct report was

served on him charging him with escape.   1
                                              A hearing was held and Mr. Ramer was

found guilty of escape. Consequently, all his earned good time credits were

revoked.

      Mr. Ramer then commenced this habeas action. In his complaint, he

alleged he was denied due process because he did not receive adequate notice of

the impending administrative charges stemming from his escape and he was


1
      No state charges of escape were filed.

                                          -2-
denied an impartial tribunal at the hearing on those charges. Mr. Ramer also

alleged his sentence has been increased due to the ex post facto application of

various new laws. He stated when he was sentenced, Oklahoma awarded good

time credits to inmates who donated blood. Those credits were later discontinued

and Mr. Ramer alleged he was denied credits he otherwise could have received

had he been permitted to donate blood and had the law not changed. Mr. Ramer

also alleged that at the time of his 1978 conviction, any credits lost due to

misconduct reports were to be restored after six months of clear conduct, while

currently no inmate convicted of a violent crime can have his credits restored.

Mr. Ramer noted that, at the time he was sentenced, he would have been eligible

for a public works program if he had not had an escape on his record for the past

ten years counting from the date of the escape. Current policy counts the ten

years from the date the inmate is served with the misconduct report, in his case

approximately nine years after the escape. Finally, Mr. Ramer alleged he was not

given credit for the nine days he was incarcerated by the transport company when

he was transferred back to the Oklahoma prison system and he was erroneously

sent to a maximum security unit where he was not permitted to work and earn

good time credits. Mr. Ramer concluded that the Oklahoma Department of

Corrections (ODOC) had refused to properly administer his sentence and to

properly credit his good time credits.


                                          -3-
      The district court construed Mr. Ramer’s complaint as being filed under 28

U.S.C. § 2254 and dismissed all the claims except two for failure to exhaust. The

case continued on Mr. Ramer’s claims that his due process rights had been

violated because he did not receive adequate notice of the pending escape charges

and had been denied an impartial tribunal, and that he had been subjected to ex

post facto laws because his sentence had been increased when his earned credits

were totally revoked and credits were denied for donating blood. The district

court determined that no violations had occurred and denied relief.

      On appeal, Mr. Ramer argues that he did not get adequate notice that

Oklahoma was planning to charge him with escape upon his return to the state.

He contends that the doctrine of latches prevents Oklahoma from prosecuting the

misconduct report. Mr. Ramer also asserts that the hearing committee was biased

because it refused to let him present his defense. Mr. Ramer also raises several

ex post facto issues claiming the ODOC (1) increased the number of earned

credits that could be revoked for a rule violation after he committed the crimes of

which he was convicted, but before he violated the rules and (2) eliminated his

ability to earn good time credits by donating blood.

      First, we must examine whether this action is properly considered as one

taken pursuant to § 2254 or § 2241. Habeas review is available under § 2241

when an inmate seeks to attack the execution of a sentence, rather than to


                                         -4-
collaterally attack the validity of a conviction and sentence, an action properly

brought pursuant to § 2254.     McIntosh v. United States Parole Comm’n       , 115 F.3d

809, 811 (10th Cir. 1997).     “[A] § 2241 action challenging prison disciplinary

proceedings, such as the deprivation of good-time credits, . . . is challenging an

action affecting the fact or duration of the petitioner’s custody.”     Id. at 812.

Thus, Mr. Ramer’s petition is more properly construed as having been brought

under § 2241.

       A state prisoner, such as Mr. Ramer, “must obtain a COA to appeal the

denial of a habeas petition, whether such petition was filed pursuant to § 2254 or

§ 2241, whenever ‘the detention complained of [in the petition] arises out of

process issued by a State court.’”     Montez v. McKinna , 208 F.3d 862, 867 (10th

Cir. 2000) (quoting § 2253(c)(1)(A)).      To obtain a COA, a habeas petitioner must

make “a substantial showing of the denial of a constitutional right [which]

includes showing that reasonable jurists could debate whether . . . 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 , 120

S. Ct. 1595, 1603-04 (2000) (quotations omitted).

       We have reviewed the district court’s judgment in light of Mr. Ramer’s

submissions to this court and the record on appeal. We agree that Mr. Ramer has

failed to establish that the state court decision “was contrary to, or involved an


                                             -5-
unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on

an unreasonable determination of the facts in light of the evidence presented in

the State court proceeding,”     id. § 2254(d)(2).

      We DENY Mr. Ramer’s request for a certificate of appealability and

DISMISS this appeal. Mr. Ramer’s two motions to supplement and amend his

petition are DENIED. Mr. Ramer’s motion to order the district court to comply

with appellate rules is DENIED. Mr. Ramer’s motion to withdraw his motion to

order the district court to comply with appellate rules is DENIED as moot.     The

mandate shall issue forthwith.



                                                       Entered for the Court



                                                       Paul J. Kelly, Jr.
                                                       Circuit Judge




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