                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                              FOR THE TENTH CIRCUIT                         June 25, 2020
                          _________________________________
                                                                        Christopher M. Wolpert
                                                                            Clerk of Court
 ANTONE LAMANDINGO KNOX,

       Petitioner - Appellant,

 v.                                                         No. 20-7014
                                               (D.C. No. 6:19-CV-00050-RAW-KEW)
 TOMMY SHARP, Warden,                                       (E.D. Okla.)

       Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.
                  _________________________________

      Pro se petitioner Antone Knox seeks a certificate of appealability (“COA”) to

appeal the district court’s denial of his 28 U.S.C. § 2241 petition. We deny a COA

and dismiss the appeal.

                                           I

      Knox, a state prisoner in the custody of the Oklahoma Department of

Corrections (“DOC”), is serving a five-year term of imprisonment for possession of

contraband in a state penal institution and a two-year term of imprisonment for

assault on a DOC employee. In a prison disciplinary proceeding, he was found guilty



      *
         This order is not binding precedent, except under the doctrines of law of the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.
of “making false allegations.” The sanction imposed was “120 visitation,” “120

telephone,” and “120 canteen.”

       Knox filed a § 2241 petition asserting that he was wrongfully convicted of

making a false complaint pursuant to the Prison Rape Elimination Act and that he is

being illegally restrained. The district court denied the petition for several reasons:

Knox had not shown that his conviction resulted in a loss of earned credits, he had

not exhausted state court remedies, and he failed to make a substantial showing of the

denial of a constitutional right. The district court declined to grant a COA. Knox

now seeks a COA from this court.

                                            II

       Because Knox proceeds pro se, we “liberally construe his pleadings,” Requena v.

Roberts, 893 F.3d 1195, 1205 (10th Cir. 2018), but “do not assume the role of advocate,”

Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008) (quotation omitted). “[A]

state prisoner must obtain a COA to appeal the denial of a habeas petition, whether such

petition was filed pursuant to § 2254 or § 2241.” Montez v. McKinna, 208 F.3d 862, 867

(10th Cir. 2000). We may issue a COA “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this

showing, Knox 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) (quotations omitted).



                                             2
       “A threshold question that must be addressed in every habeas case is that of

exhaustion.” Harris v. Champion, 15 F.3d 1538, 1554 (10th Cir. 1994). Although “no

statutory exhaustion requirement applies to petitions filed pursuant to § 2241, it is well-

settled that claims raised in § 2241 petitions must be exhausted before a federal court will

hear them.” Burger v. Scott, 317 F.3d 1133, 1144 n.8 (10th Cir. 2003). The district court

dismissed Knox’s petition because although he had filed an action in state court relating

to the allegedly wrongful disciplinary action, the Oklahoma Court of Criminal Appeals

(“OCCA”) had not issued a ruling in that case by the time the district court made its

ruling in this case.

       We take judicial notice of the OCCA’s subsequent denial of Knox’s requested

relief. See Knox v. Fudge, No. REC-2019-388 (Okla. Crim. App. Apr. 9, 2020),

https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=REC-

2019-388&cmid=126338; Green v. Nottingham, 90 F.3d 415, 418 (10th Cir. 1996)

(“[F]ederal courts may take notice of judicial proceedings in other courts if they have a

direct relation to matters at issue.” (citing St. Louis Baptist Temple, Inc. v. F.D.I.C., 605

F.2d 1169, 1172 (10th Cir. 1979))). Although Knox had not exhausted state court

remedies when he filed his habeas petition, we may consider the merits of his claim

because he has since done so. See Osborn v. Shillinger, 861 F.2d 612, 616 (10th Cir.

1988) (“An appellate court may give relief if state remedies are exhausted by the time it

acts, even if those remedies were not exhausted when the habeas corpus petition was

filed.” (alteration and quotation omitted)), abrogated on other grounds by Harris v. Reed,



                                              3
489 U.S. 255 (1989), as recognized by Shafer v. Stratton, 906 F.2d 506, 509 (10th Cir.

1990).

         We turn to the merits of Knox’s claim. “Habeas corpus review is available

under § 2241 if one is ‘in custody in violation of the Constitution or laws or treaties

of the United States.’” McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811 (10th

Cir. 1997) (quoting § 2241(c)(3)). “[A] § 2241 attack on the execution of a sentence

may challenge . . . deprivation of good-time credits and other prison disciplinary

matters.” Id.; see also Brown v. Smith, 828 F.2d 1493, 1495 (10th Cir. 1987). In

Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court held that prisoners are

entitled to due process before being subjected to either an “atypical, significant

deprivation in which a State might conceivably create a liberty interest” or a

disciplinary action that “inevitably affect[s] the duration of his sentence.” Id. at 486,

487.

         Knox has not shown that the DOC violated his constitutional rights in

connection with his disciplinary proceedings. He does not contend that a due process

liberty interest is implicated by the loss of visitation, telephone, or canteen privileges.

Nor do such sanctions inevitably affect the duration of a prison sentence. Moreover,

as the district court noted, Knox did not “claim his conviction resulted in a loss of

earned credits.” Although his opening brief on appeal mentions revocation of earned

credits, he did not raise this issue below. Accordingly, we do not consider it. See

United States v. Viera, 674 F.3d 1214, 1220 (10th Cir. 2012). We conclude that

Knox has not made a substantial showing of the denial of a constitutional right.

                                            4
                               III

For the foregoing reasons, we DENY a COA and DISMISS the appeal.


                                Entered for the Court


                                Carlos F. Lucero
                                Circuit Judge




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