                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                             August 4, 2006
                                   TENTH CIRCUIT                          Elisabeth A. Shumaker
                                                                              Clerk of Court


 JAYSON PREBLE,

           Petitioner-Appellant,
 v.                                                           No. 06-1195
 AL ESTEP,                                           (D.C. No. 05-CV-2619-ZLW)
                                                            (D. Colorado)
           Respondent-Appellee.




                                         ORDER *


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


       Jayson Preble, a Colorado state prisoner appearing pro se, seeks a certificate of

appealability (COA) in order to challenge the district court’s denial of his 28 U.S.C. §

2241 petition for writ of habeas corpus. Because we conclude that Preble has failed to

make a substantial showing of the denial of a constitutional right, we deny his request for

a COA and dismiss the matter.

                                             I.

       Preble is an inmate at the Limon, Colorado, Correctional Facility. In August 2003,

Preble was charged by prison officials with five violations of the Colorado Department of



       *
        This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel.
Corrections’ Code of Penal Discipline (COPD). A three-member board dismissed two of

the charges and found Preble guilty of the remaining three charges (i.e.,

robbery/extortion, dealing in dangerous drugs, and tampering with locks or security

devices). As a result, Preble was sanctioned with thirty days of punitive segregation.

Preble also alleges, but failed to establish below, that he was sanctioned with the loss of

good-time credits. Plaintiff administratively appealed his convictions and, in doing so,

obtained a reversal of his conviction for dealing in dangerous drugs. The remaining two

convictions, however, were affirmed.

       After exhausting his administrative remedies, Preble filed suit in Colorado state

court challenging the two remaining disciplinary convictions. Preble alleged, in pertinent

part, that his due process rights were violated because (1) he was not given sufficient

notice of the circumstances giving rise to the tampering charge, and (2) the board did not

expressly find reliable the information it relied upon from a confidential informant. Upon

review, the state district court agreed with Preble that he was given insufficient notice of

the tampering charge, and accordingly expunged that conviction. As for the remaining

robbery/extortion conviction, the state district court remanded the matter to the

disciplinary board to determine whether the confidential information it relied upon was

reliable. Prison officials subsequently submitted an affidavit to the state district court,

under seal, attesting to the reliability of the confidential information. Although Preble

moved to strike the affidavit, the state district court denied Preble’s motion and, based

upon the affidavit, affirmed Preble’s disciplinary conviction for robbery/extortion.

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       Preble appealed the state district court’s ruling to the Colorado Court of Appeals

(CCA). The CCA affirmed. In doing so, the CCA concluded, in pertinent part, that

COPD regulations did not require the disciplinary board to make express findings of

reliability on the record either prior to, or contemporaneously with, its decision on the

merits. The CCA further concluded that, in light of the submission of the affidavit to the

state district court, and the contents of that affidavit, Preble’s due process rights were not

violated by his disciplinary conviction for robbery/extortion. The Colorado Supreme

Court subsequently denied Preble’s petition for writ of certiorari.

       Preble then filed this federal habeas proceeding challenging his remaining

disciplinary conviction. In his petition, Preble argued that the disciplinary board violated

his due process and liberty rights by failing, prior to convicting him of robbery/extortion,

to expressly find that the confidential information submitted to it was reliable. Preble

also argued that the state district court violated his due process rights by remanding the

matter to the disciplinary board and ultimately allowing prison officials to submit a

supplemental affidavit attesting to the reliability of the confidential information.

       The district court dismissed Preble’s petition, concluding, in pertinent part, that (a)

Preble had failed to establish the violation of any protected liberty interest, (b) there was

no legal authority to support Preble’s asserted due process violations, (c) the disciplinary

hearing board properly determined the reliability of the confidential information, and (d)

Preble’s disciplinary conviction for robbery/extortion was supported by some evidence.

The district court subsequently denied Preble’s request for a COA. Preble has now

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renewed that request with this court.

                                              II.

       The denial of a state prisoner’s petition for federal habeas relief pursuant to 28

U.S.C. § 2241 may be appealed only if the district court or this Court first issues a COA.

28 U.S.C. § 2253(c)(1)(A); Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000). “A

certificate of appealability may issue . . . 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

such a showing, a petitioner must demonstrate 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, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). In applying

these standards to Preble’s request for COA, we note that, because his claims have

already been adjudicated in state court, we could not grant him federal habeas relief

unless the state adjudication “resulted in a decision that was contrary to, or involved an

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

Supreme Court of the United States . . . .” 28 U.S.C. § 2254(d).

       After reviewing the record on appeal, we are convinced that Preble cannot satisfy

these demanding standards. The Supreme Court has held that, with regard to prison

disciplinary proceedings, due process demands only that there be “some evidence” to

support the hearing officer’s decision. Superintendent, Mass. Correctional Inst. v. Hill,

472 U.S. 445, 455 (1985). Although several federal circuit courts have held that the

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“some evidence” standard will not be satisfied by information from a confidential

informant absent additional evidence establishing the reliability of the confidential

informant, e.g., Richards v. Dretke, 394 F.3d 291, 294 (5th Cir. 2004), the Supreme Court

has never addressed this issue. Nor, in turn, has the Supreme Court ever addressed

whether due process requires a disciplinary hearing officer or board to make express

findings of reliability regarding information provided by a confidential informant. Thus,

Preble cannot demonstrate that the CCA’s resolution of his due process claims was

contrary to clearly established federal law as determined by the Supreme Court.

       The request for a COA is DENIED and the matter is DISMISSED. The motion to

proceed in forma pauperis is DENIED.


                                                   Entered for the Court


                                                   Mary Beck Briscoe
                                                   Circuit Judge




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