                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  March 25, 2011
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                  TENTH CIRCUIT



 WILLIE CARSON,

                 Petitioner-Appellant,                   No. 10-6270
          v.                                           (W.D. of Okla.)
 ANITA TRAMMELL, Warden,                        (D.C. No. 5:10-CV-00449-C)

                 Respondent-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges. **


      Willie Carson, a state prisoner proceeding pro se, 1 seeks a certificate of

appealability (COA) to appeal from the district court’s dismissal of his 28 U.S.C.

§ 2241 habeas petition. The petition raises a due process challenge to Carson’s

prison disciplinary conviction that resulted in the revocation of earned credits and



      *
         This order is not binding precedent except under the doctrines of law of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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      1
       Because Carson proceeds pro se, we review his pleadings liberally. See
Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
other disciplinary sanctions. Having jurisdiction pursuant to 28 U.S.C. § 1291,

we DENY Carson’s request for a COA and DISMISS this appeal.



                                  I. Background

      Carson is presently incarcerated at the Mack Alford Correctional Center in

Stringtown, Oklahoma. In March 2009, however, while incarcerated at the

Pushmataha County Jail, Carson was charged with prison misconduct based upon

the discovery of (1) a cell phone and charger wrapped in a knee brace belonging

to Carson, and (2) two pouches of tobacco. The items were discovered during a

random shakedown of the kitchen where Carson worked as a dishwasher.

      A disciplinary hearing was held and Carson was found guilty of Individual

Disruptive Behavior, a Class X misconduct offense. His punishment included the

revocation of 365 days of earned credits, assignment to disciplinary segregation,

and a reduction in earned credit level. Carson appealed the conviction through

the prison administrative appeals process and the conviction was affirmed.

      Carson sought timely judicial review of the conviction in Oklahoma state

court. On November 6, 2009, the state district court denied Carson’s petition for

judicial review and dismissed the case. The Journal Entry of Judgment denying

relief was filed on December 9, 2009. See R., Vol. 1 at 52 (showing court clerk’s

file-stamp of “DEC - 9 2009”). On December 18, 2009, Carson filed a notice of

intent to appeal in state district court. On January 19, 2010, Carson filed his

                                         -2-
appeal in the Oklahoma Court of Criminal Appeals (OCCA). Soon after, the

OCCA entered an order declining jurisdiction because Carson failed to seek

timely relief under the OCCA rules, which required appeals to be taken within

thirty days.

      Carson then filed a petition for habeas corpus in federal district court

raising a due process challenge to his misconduct conviction on the grounds that

(1) there was no evidence to support the conviction, 2 and (2) he was denied access

to evidence—a surveillance videotape—to support his factual innocence claim. 3

Pursuant to a court order, Respondent-Appellee filed a motion to dismiss Carson’s

habeas petition. The matter was referred to a magistrate judge who issued a

Report and Recommendation that recommended the habeas petition (1) be

dismissed based upon procedural default, or (2) in the alternative, be denied on

the merits. The magistrate judge noted the OCCA declined jurisdiction over

Carson’s appeal because it was untimely filed and therefore procedural default

barred his federal habeas claims. The magistrate judge acknowledged there may

      2
         In his habeas petition, Carson labels the first ground for relief as a denial
of due process and equal protection of the law. However, we construe this as
only stating a due process claim because Carson’s substantive arguments only
relate to an alleged due process violation and his appeal in state court only
asserted a claim based upon a due process violation.
      3
        Carson framed his habeas petition as pursuant to 28 U.S.C. §§ 2254 and
2244b. Because the petition does not challenge the validity of his conviction or
sentence, but rather the execution of his sentence—the revocation of 365 earned
credits—we construe his petition as pursuant to § 2241. See Montez v. McKinna,
208 F.3d 862, 865 (10th Cir. 2000).

                                          -3-
have been cause for Carson’s default based on potential confusion created by the

duplicate Journal Entry of Judgment filed by the state district court on December

30, 2009. If Carson had filed his petition with the OCCA based upon the date of

the duplicate entry it would have been timely. But even if this demonstrated

sufficient cause, the magistrate judge determined Carson failed to satisfy the

actual prejudice component of the exception to procedural default because some

evidence supported his conviction. See Superintendent, Mass. Corr. Inst. v. Hill,

472 U.S. 445, 454 (1985) (finding due process requires revocation of prison

inmate good time credits to be supported by “some evidence in the record”).

      After considering arguments raised in Carson’s objections, the district court

adopted the Report and Recommendation of the magistrate judge in its entirety

and denied Carson’s habeas petition. The district court also denied Carson’s

requests for a COA and to proceed in forma pauperis on appeal.



                                  II. Discussion

      A state prisoner may appeal from the denial of federal habeas relief under

28 U.S.C. § 2241 only if the district court or this court first issues a COA. 28

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

2000) (holding that state prisoners must obtain a COA to appeal denials of 28

U.S.C. § 2241 petitions). Before granting a COA, we must conclude that Carson

“has made a substantial showing of the denial of a constitutional right.”

                                         -4-
§ 2253(c)(2). Carson bears the burden of demonstrating “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) (quotation omitted). Because Carson’s COA was denied on

procedural grounds, we must find both “that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.” Id. (emphasis added).

      A state prisoner seeking habeas relief in federal court must first exhaust all

available state court remedies “unless doing so would be futile because of ‘an

absence of available State corrective process’ or because ‘circumstances exist that

render such process ineffective to protect the rights of the applicant.’” Magar v.

Parker, 490 F.3d 816, 818 (10th Cir. 2007) (quoting 28 U.S.C. § 2254(b)(1)).

“The Supreme Court has explained that if state court remedies are no longer

available because the prisoner failed to comply with the deadline for seeking

review, the prisoner’s procedural default functions as a bar to federal habeas

review.” Id. at 819. A procedural default may be excused if a petitioner can

“demonstrate cause for the default and actual prejudice as a result of the alleged

violation of federal law, or demonstrate that failure to consider the claims will

result in a fundamental miscarriage of justice.” Id. (quotation omitted).

                                          -5-
      Oklahoma law establishes a process for judicial review of prison

disciplinary proceedings that result in the revocation of earned credits. See

O KLA . S TAT . A NN . tit. 57, § 564.1; see also Magar, 490 F.3d at 818–19

(discussing Oklahoma’s process for judicial review of prison disciplinary

proceedings under § 564.1). In the review process, a court determines “whether

due process was provided by the revoking authority,” and the statute enumerates

seven factors the court must consider in making its determination. See

§ 564.1(D)(1)–(7). Carson’s due process claims fall within the scope of judicial

review under § 564.1 and he has not demonstrated how such a process was

ineffective to protect his due process rights.

      After the state district court denied Carson’s petition for judicial review,

§ 564.1 permitted him to appeal that decision to the OCCA, pursuant to its rules.

See § 564.1(G). Under those rules, a petition in error must be filed with the

OCCA “within thirty (30) days from the date the final order adjudicating the

petition for judicial review is filed with the clerk of the district court.” OKLA .

S TAT . A NN . tit. 22, Ch. 18, App., Ct. of Crim. App. R. 15.3(A). Filing of the

petition is jurisdictional and a failure to timely file constitutes waiver of the right

to appeal. Id. The district court order denying Carson’s petition for judicial

review was filed on December 9, 2009. Carson filed his petition in error with the

OCCA on January 19, 2010. Because it was not filed on or before January 8,

2010, the OCCA declined jurisdiction over his appeal because it was not timely

                                          -6-
filed. Carson’s failure to timely appeal his claims to the OCCA is a procedural

default and bars review of his claims in a federal habeas petition.

      Carson’s procedural default may be excused if he demonstrates either

(1) cause for the default and actual prejudice from the violation of federal law, or

(2) a fundamental miscarriage of justice if his claims are not considered. In his

habeas petition before the federal district court, Carson alleged the state district

court created confusion surrounding his receipt of its Journal Entry of Judgment

denying his petition for judicial review. Carson alleges he received two copies of

the Journal Entry on December 14, 2009 and January 4, 2010. Additionally, from

the record, it appears the district court filed two Journal Entries of Judgment on

December 9, 2009 and December 30, 2009. The magistrate judge, in the Report

and Recommendation, noted Carson’s “allegations of cause appear to have

potential merit” based upon these duplicate entries. R., Vol. 1 at 5–6.

Nonetheless, the magistrate judge determined Carson failed to satisfy the actual




                                          -7-
prejudice component of the exception to procedural default 4 and his procedural

default was not excused.

      On appeal, Carson does not re-assert his arguments regarding cause for his

procedural default and therefore we do not consider such claims. However, even

if we considered his arguments, we agree with the thorough and reasoned decision

of the magistrate judge in the Report and Recommendation that Carson failed to

demonstrate actual prejudice. We also agree that failure to consider his claims

will not result in a fundamental miscarriage of justice.



                                  III. Conclusion

      For the foregoing reasons, we AFFIRM the district court’s judgment,

DENY Carson’s request for a COA, DENY Carson’s motion to proceed in forma



      4
        The magistrate judge considered Carson’s claims that he was denied due
process in the prison disciplinary proceedings because Carson alleged no evidence
supported his disciplinary conviction. The magistrate judge examined the record
to determine if there was “some evidence” to support Carson’s disciplinary
conviction. See Hill, 472 U.S. at 454 (“[R]evocation of good time does not
comport with the minimum requirements of procedural due process, unless the
findings of the prison disciplinary board are supported by some evidence in the
record.”) (quotation and citation omitted). The offense report and incident report,
which contained an officer’s statements and descriptions of the contraband found
in Carson’s knee brace, was “some evidence” supporting Carson’s conviction for
the possession of contraband. The magistrate judge also found Carson (1) made
no request for the surveillance videotape before his disciplinary hearing, (2) did
not request the videotape be presented at the hearing, and (3) requested the
videotape only in appealing his conviction. Thus, the magistrate judge concluded
Carson failed to show actual prejudice to overcome his procedural default.

                                         -8-
pauperis, and DISMISS Carson’s appeal.



                                           Entered for the Court

                                           Timothy M. Tymkovich
                                           Circuit Judge




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