                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  April 2, 2012
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                  Clerk of Court
                               TENTH CIRCUIT



 LOUIS DOUGLAS CRAFT, JR.,

             Petitioner - Appellant,
                                                       No. 11-6304
 v.                                            (D.C. No. 5:11-CV-00728-HE)
                                                     (W.D. Oklahoma)
 JUSTIN JONES, DIRECTOR,

             Respondent - Appellee.


          ORDER DENYING CERTIFICATE OF APPEALABILITY


Before MURPHY, EBEL, and HARTZ, Circuit Judges.


      Applicant Louis Craft, Jr., a prisoner at the Cimarron Correctional Facility

in Cushing, Oklahoma, filed a pro se application for writ of habeas corpus under

28 U.S.C. § 2241 in the United States District Court for the Western District of

Oklahoma. 1 The district court dismissed the application and denied relief.

Applicant seeks a certificate of appealability (COA) from this court to appeal the

denial of his application. See Montez v. McKinna, 208 F.3d 862, 868–69 (10th

Cir. 2000) (requiring a COA to appeal dismissal of habeas application brought by




      1
        Applicant filed his application under 28 U.S.C. § 2254. In accordance
with this circuit’s precedent, the magistrate judge, with Applicant’s consent,
recharacterized it as an application under 28 U.S.C. § 2241.
state prisoner under 28 U.S.C. § 2241 or § 2254). We deny a COA and dismiss

the appeal because the claims are moot.

I.    BACKGROUND

      According to prison incident reports, Applicant made a sexual remark to a

female correctional officer and she responded with a racial slur. Applicant

maintains that he never made the sexual remark but that the correctional officer

fabricated the story to cover up her use of an unprovoked racial slur. After a

prison hearing on the matter, Applicant was found guilty of menacing. He

appealed to the prison warden and was granted a rehearing. Applicant alleges that

he was denied the right to attend the rehearing. The State asserts, however, that

he could have attended but refused to do so while handcuffed. The rehearing

officer again found Applicant guilty and imposed punishment, which included the

loss of 365 days of good-time credits.

      Applicant raised three claims in district court: (1) that his right to due

process was violated when he was prohibited from attending the rehearing; (2)

that the misconduct charge was false and racially motivated; and (3) that prison

officials violated the Eighth Amendment by acting with deliberate indifference to

his rights and by inflicting cruel and unusual punishment. He asked the court to

remove the menacing conviction from his file and reinstate his lost good-time

credits.




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      Adopting the magistrate judge’s recommendation, the district court denied

the application and denied a COA. It dismissed the due-process claim as moot

because after the § 2241 application was filed, prison officials set aside

Applicant’s disciplinary conviction and ordered a new hearing. In addition, it

held that the falsity of a charge is not a ground for habeas relief and dismissed on

the merits the claim that the disciplinary charge against him was false. The

district court did not address the Eighth Amendment claim. On appeal Applicant

seeks a COA on two issues: (1) that his due-process claim is not moot and (2)

that prison officials acted with deliberate indifference to his due-process rights by

fabricating the disciplinary charge.

II.   DISCUSSION

      We construe Applicant’s request for a COA liberally because he proceeds

pro se. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). A COA

will issue “only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a

demonstration that . . . includes showing 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)

(internal quotation marks omitted). In other words, the applicant must show that

the district court’s resolution of the constitutional claim was either “debatable or

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wrong.” Id. If the application was denied on procedural grounds, the applicant

faces a double hurdle. Not only must the applicant make a substantial showing of

the denial of a constitutional right, but he must also show “that jurists of reason

would find it debatable . . . whether the district court was correct in its procedural

ruling.” Id. “Where a plain procedural bar is present and the district court is

correct to invoke it to dispose of the case, a reasonable jurist could not conclude

either that the district court erred in dismissing the petition or that the petitioner

should be allowed to proceed further.” Id.

      Applicant gives two reasons why his due-process claim is not moot. First,

he argues that a constitutional violation occurred when he could not attend the

second hearing and that another hearing will not cure that violation. But he is not

seeking damages, and he has obtained the only relief he sought—setting aside the

guilty finding and restoration of his good time. See Hayes v. Evans, 70 F.3d 85,

86 (10th Cir. 1995). Second, he argues that prison officials ordered a new

hearing to cover up their misconduct and that prison officials will continue to

violate his due-process rights without court intervention. But if officials engage

in future misconduct, he will be able to seek relief. They will not be able to

escape review if they impose sanctions on him.

      Moreover, Applicant’s other claims were mooted when prison officials set

aside his disciplinary conviction and ordered a third hearing. Those claims

sought no relief that was not granted by the prison officials. Accordingly, we

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need not address the merits of Applicant’s second claim. We note, however, that

because of mootness the district court’s dismissal of all claims needed to be

without prejudice.

III.   CONCLUSION

       We DENY the request for a COA and DISMISS this appeal.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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