                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        June 21, 2007
                             FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                         Clerk of Court

    M ER CE B AR OC IO ,

              Petitioner-A ppellant,
                                                          No. 06-6293
     v.                                            (D.C. No. 05-CV -1259-HE)
                                                          (W .D. Okla.)
    JUSTIN JONES,

              Respondent-Appellee.



                              OR D ER AND JUDGM ENT *


Before BR ISC OE, SE YM OU R, and A ND ER SO N, Circuit Judges.




          Petitioner M erce Barocio, an Oklahoma state prisoner appearing pro se,

filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 alleging that

prison officials arbitrarily reduced his earned-credit level w ithout due process.

The district court referred the matter to a magistrate judge, who recommended

that the petition be denied. Over petitioner’s written objections, the district court




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
adopted the magistrate judge’s report and recommendation (R& R) and denied the

petition. This court granted a certificate of appealability and ordered the

respondent to file a brief, which he has done. Exercising jurisdiction under

28 U.S.C. § 2253, we grant petitioner’s motion to proceed in form a pauperis and

affirm the district court’s judgment.

                                  I. Background

      Before turning to the particular facts of this case, we first outline the

relevant provisions of Oklahoma’s inmate-classification system. Under that

system, “every inmate of a state correctional institution shall have their term of

imprisonment reduced monthly, based upon the class level to which they are

assigned.” O kla. Stat. tit. 57, § 138(A). There are four class levels. An inmate

in Level II, III, or IV earns credits each month toward early release, whereas an

inmate in Level I earns no credits. See id., § 138(D)(2)(b). “Each earned credit

is equivalent to one . . . day of incarceration.” Id., § 138(A). To be assigned to

Level IV, the highest level, an inmate must have been incarcerated for eight

months and must have received an “outstanding” evaluation in a number of

different behavioral categories, including work performance. Id., § 138(D )(1)(d).

The inmate’s adjustment review committee has the discretion to demote an inmate

from Level IV if it determines that the inmate’s performance in any of the

behavioral categories falls below “outstanding.” See id., § 138(B), (D)(3), (F).

Because classification in Level II requires a “good” evaluation in the behavioral

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categories, an inmate w ho receives a “poor” evaluation in a behavioral category

can be demoted to Level I. See id., § 138(D). The adjustment review committee

is to evaluate each inmate’s class level and performance “[a]t least once every

four . . . months” to “determine whether or not the class level for the inmate

should be changed.” Id., § 138(F).

      The policy of the Oklahoma D epartment of Corrections (ODOC) in effect

when petitioner’s earned-credit level was reduced further provided that demotions

to Level I may occur “whenever deemed appropriate by the facility/unit

classification committee.” ODOC Policy OP-060107, ¶ I.C.2.a. (eff. Dec. 29,

2004). The policy also indicates that assignment to Level I may occur in a

limited number of mandatory circumstances, including “removal from a job . . .

assignment due to nonperformance or misconduct related to the job.” Id.,

¶ I.C.2.a.3. The policy contemplates that such job “[f]ailures will be documented

by an offense report . . . . Assignment to Level I in lieu of an offense report can

only be done by the facility classification comm ittee.” Id.

      Against this backdrop, we now turn to the facts of this case. W hile a

Level-IV prisoner at the Lawton Correctional Facility, a private prison in

Oklahoma, petitioner worked in a garment factory in the Oklahoma Correctional

Industries (OCI). As petitioner’s work supervisor, Tom Lewis, later described

events, he told petitioner on February 9, 2005, “to turn in a job change because he

was having trouble coming to work and staying all day.” R., Doc. 15, Ex. 1.

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A prison officer, Howard Trahan, apparently told petitioner’s unit manager,

Clifford Barnard, that petitioner w as fired from his job with the OCI. See id.,

Ex. 4. On February 14, petitioner’s facility classification comm ittee/unit team 1

(Unit Team) completed an Intra-Facility Assignment Form, which showed a

change in job status from “OCI” to “Job Pool,” effective February 21, 2005, and

which noted that, “Per T. Lewis I/M fired he won’t come [t]o work.” Id., Ex. 2

at 1. Apparently after meeting with petitioner, the Unit Team completed a “New

Arrival/Adjustment Review/Earned Credit Level” form dated February 16

(Adjustment Review Form), which states: “Demote to level 1 due to being fired

from his job and refusing to go to work.” Id., Ex. 2 at 3 (typeface altered). O n

the Adjustment Review Form, the Unit Team rated petitioner’s “Current Patterns

of Behavior” as follows: staff— poor; program participation— outstanding;

job— poor; other inmates— outstanding; personal hygiene— good; living

area— good. Id., Ex. 2 at 2.

      Several weeks later, M r. Lew is sent a memorandum to M r. Bernard

explaining that petitioner “was-not [sic] written-up nor fired” but that “[b]y

mutual agreement it was determined that [he] was not cut out for the kind of

work” done in the garment factory. Id., Doc. 1, Attach. at 1 (emphasis omitted).

M r. Lewis opined that petitioner’s “level should not have been dropped nor any

1
      The term “adjustment review comm ittee” used in the relevant statute and
ODOC policy appears synonymous w ith “facility classification committee/unit
team.”

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sanctions levied against him in any way.” Id. M r. Bernard replied that the Unit

Team had not issued petitioner a misconduct for being fired, but demoted him to

Level I based on his statement that he did not like his assigned job. Id., Doc. 15,

Ex. 3. M r. Bernard further clarified the reasons for reducing petitioner’s class

level: petitioner “requested this job assignment,” “the unit team feels that when

an inmate’s supervisor requests the inmate be reassigned for failing to come to

work, the inmate was fired for a work related misconduct,” and “[t]he unit team

feels that this action is warranted to ensure that [petitioner] understands the

importance of going to work when he is scheduled to work.” Id. M r. Bernard

also made it clear that petitioner w ould be reassigned to a new job and could earn

a promotion to a higher class level if he performed well. See id.

      Petitioner’s Request to Staff, seeking reinstatement to Level IV, was denied

for substantially the same reasons stated in M r. Bernard’s m emorandum to

M r. Lewis. See id., Doc. 1, Attach. at 4. After his administrative grievances were

denied as untimely, petitioner filed the present habeas action, and the district

court referred it to a magistrate judge. In her R& R, the magistrate judge reasoned

that because petitioner’s demotion to level one was not mandatory and automatic

under ODOC policy, he could not demonstrate a liberty interest in remaining at

Level IV. The district court adopted the R& R, and petitioner appealed.




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                                   II. Discussion

      Petitioner raises five arguments on appeal: (i) the district court erred in

rendering judgment without conducting an evidentiary hearing to resolve factual

disputes; (ii) the district court’s reasoning was inconsistent to the extent the court

acknowledged M r. Bernard’s statement that petitioner was fired for work-related

misconduct but found that the demotion to Level I was discretionary; (iii) the

district court erred in relying solely on the absence of a written misconduct, and

overlooked the fact that M r. Bernard avoided this established procedure in order

to skirt any due process requirements; (iv) the duration of petitioner’s reduction

to Level I is immaterial; and (v) O klahoma inmates have a liberty interest in their

classification level under Wilson v. Jones, 430 F.3d 1113 (10th Cir. 2005), cert.

denied, 127 S. Ct. 158 (2006). W e will address the last argument first because it

affects our consideration of the others, and we will consider the other arguments

in order of analytical convenience. W e review the district court’s findings of fact

for clear error and its legal conclusions de novo. Burger v. Scott, 317 F.3d 1133,

1137 (10th Cir. 2003). W e construe petitioner’s pro se pleadings and other papers

liberally, but we do not act as his advocate. See Hall v. Bellmon, 935 F.2d 1106,

1110 & n.3 (10th Cir. 1991).

      In Wilson v. Jones, we held that a m isconduct conviction that was the sole

reason for a mandatory reduction of an inmate’s classification to Level I under

Oklahoma’s inmate-classification scheme implicated a liberty interest because

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prison officials had absolutely no discretion in demoting the inmate. See Wilson,

430 F.3d at 1120-21. In such circumstances, we held, the misconduct conviction

inevitably affected the duration of the inmate’s sentence under Sandin v. Conner,

515 U.S. 472, 487 (1995), see Wilson, 430 F.3d at 1120, and therefore his due

process rights were violated under Wolff v. M cDonnell, 418 U.S. 539 (1974),

because he was convicted of misconduct without any evidence, see Wilson,

430 F.3d at 1124.

      In contrast, the circumstances surrounding the end of petitioner’s

employment at the garment factory, while apparently an important factor in the

Unit Team’s decision, did not require the Unit Team to demote him. The Unit

Team considered his work performance as one factor in its decision. Notably, the

Unit Team also considered petitioner’s performance in other behavioral

categories, including his “poor” score in the “staff” category, which itself was a

sufficient basis for the Unit Team to demote petitioner, in its discretion, to

Level I regardless of his work performance. Therefore, the circumstance

surrounding the end of his employment at the garment factory was not the sole

and mandating cause of his demotion, and Wilson is inapplicable. See Cardoso v.

Calbone, No. 06-6266, ___ F.3d ___, 2007 W L 1739694, at *3 (10th Cir. June 18,

2007) (rejecting the “argument that Wilson recognized an unconditional liberty

interest in an Oklahoma prisoner’s credit-earning classification” and holding that




                                          -7-
discretionary inmate-classification decisions in Oklahoma do not implicate a

liberty interest).

       Petitioner’s remaining arguments do not compel a different conclusion.

Because petitioner was not actually removed from his job, his level reduction was

not mandated by ODOC Policy OP-060107, ¶ I.C.2.a.3. It therefore follows that

no offense report or written misconduct was required, and the magistrate judge

justifiably relied on the absence of any such writing in support of her

determination that the demotion was discretionary. Any erroneous view the Unit

Team may have had that petitioner was, in fact or in effect, removed from his job

within the meaning of ODOC Policy OP-060107, ¶ I.C.2.a.3., as suggested by the

written comments on the Intra-Facility Assignment Form and the Adjustment

Review Form, does not give rise to a liberty interest subject to due process

protections under Wilson. Nor does it suggest that the Unit Team avoided issuing

a misconduct to petitioner in order to skirt any due process requirements that

might attend a mandatory demotion. The fact remains that he was not fired, and

therefore w e do not view the magistrate judge’s conclusion that the U nit Team’s

decision was discretionary as inconsistent with her acknowledgment of the Unit

Team’s written comments that petitioner w as demoted because he was fired.

Again, the Unit Team considered other factors in reaching its decision that

permitted discretionary demotion to Level I regardless of petitioner’s work

performance. Thus, we agree with the magistrate judge that any factual dispute

                                         -8-
about petitioner’s absences from work were not critical to the disposition of his

claims, and consequently we reject his argument that he was entitled to an

evidentiary hearing concerning M r. Bernard’s “determination” of his work

performance.

      Finally, we agree with petitioner that the potentially minimal duration of

his reduction to Level I is an immaterial distinction from Wilson, where the

inmate was not permitted to be promoted above Level II for two years even if he

earned such a promotion, see Wilson, 430 F.3d at 1116. But in view of our

conclusion that petitioner’s case does not fall within Wilson, the significance the

magistrate judge placed on this distinction was harmless.

      The judgment of the district court is A FFIRM ED. Petitioner’s motion to

proceed in form a pauperis on appeal is granted, and he is reminded of his

obligation to continue making partial payments until his filing fee is paid in full.



                                                     Entered for the Court



                                                     M ary Beck Briscoe
                                                     Circuit Judge




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