                                                                                 FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit

                         UNITED STATES COURT OF APPEALS                     August 4, 2008
                                                                         Elisabeth A. Shumaker
                                      TENTH CIRCUIT                          Clerk of Court



 GROVER MISKOVSKY,

                  Petitioner - Appellant,

           v.                                                   No. 08-6005
                                                       (D. Ct. No. 05-CV-01436-HE)
 ERIC FRANKLIN, Warden,                                         (W.D. Okla.)

                  Respondent - Appellee.


                ORDER DENYING CERTIFICATE OF APPEALABILITY


Before TACHA, KELLY, and McCONNELL, Circuit Judges.


          Petitioner-Appellant Grover Miskovsky, proceeding pro se, seeks a certificate of

appealability (“COA”) to challenge the district court’s denial of his petition for habeas

relief pursuant to 28 U.S.C. § 2241. We DENY a COA and therefore dismiss this appeal.

          Mr. Miskovsky is a state prisoner in Oklahoma serving consecutive 84-year, 7-

year, and 2-year sentences. During his incarceration, Mr. Miskovsky was charged with

prison misconduct after two box blades and a screwdriver tip were discovered in a light

fixture in the cell Mr. Miskovsky shared with Robert Simmons. After a hearing

conducted by the Oklahoma Department of Corrections, Mr. Miskovsky was found guilty

of misconduct. As part of his punishment, Mr. Miskovsky lost 365 days of good time

credit.
       Mr. Miskovsky then filed this § 2241 habeas petition in district court, arguing that

he was denied due process when his earned credits were revoked. He specifically

contends that, among other things, the prison disciplinary proceeding for possession of

contraband failed to consider potentially exculpatory statements and violated the “some

evidence” standard. See Superintendent v. Hill, 472 U.S. 445, 454 (1985).

       A petitioner may not appeal the denial of habeas relief under 28 U.S.C. § 2241

unless a COA is granted. 28 U.S.C. § 2253(c)(1)(A). We will issue a COA “only if the

applicant has made a substantial showing of the denial of a constitutional right.” Id. §

2253(c)(2). This standard requires Mr. Miskovsky to “demonstrate that reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or

wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

       First, as the magistrate judge noted, there was ample evidence supporting the

disciplinary hearing officer’s (“DHO”) determination of guilt:

              (1) the Incident and Misconduct Reports; (2) photocopies of the box
       blades; (3) shakedown logs of [Mr. Miskovsky’s] cell; (4) the presumption
       of constructive possession; and (5) the absence of [the discovering officer’s]
       motive to fabricate evidence of misconduct.

Second, we agree that Mr. Miskovsky has greatly overstated the exculpatory nature of a

statement allegedly made by Mr. Simmons. Moreover, the record shows that Mr.

Simmons was asked to give a statement in conjunction with Mr. Miskovsky’s disciplinary

hearing but refused to do so. Mr. Miskovsky, however, was still allowed to present

evidence that Mr. Simmons allegedly confessed to possession of the box blades and the


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DHO considered such evidence in making her determination.1

       After carefully reviewing Mr. Miskovsky’s brief, the magistrate judge’s

comprehensive and well-reasoned report and recommendation, the district court’s

disposition, and the record on appeal, we find nothing that meets our standard for the

grant of a certificate of appealability. For substantially the reasons set forth by the

magistrate judge’s report and recommendation, we DENY Mr. Miskovsky’s request for a

certificate of appealability and DISMISS the appeal. His motion to proceed in forma

pauperis is GRANTED.



                                           ENTERED FOR THE COURT,



                                           Deanell Reece Tacha
                                           Circuit Judge




       1
        Mr. Miskovsky also claims that he was denied due process because the
disciplinary investigator was incompetent and inadequately trained and because he was
denied a staff representative. We agree with the magistrate that these claims lack merit,
both factually and legally.

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