                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                       June 29, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 C HRISTO PH ER E. LO N G STR ETH,

              Petitioner - A ppellant,                   No. 07-6026
       v.                                             (W . D. Oklahoma)
 ERIC FRANKLIN, W arden,                          (D.C. No. 05-CV-1364-C)

              Respondent - Appellee.



            OR DER DENY ING CERTIFICATE O F APPEALABILITY


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      Christopher Longstreth, a state prisoner proceeding pro se, seeks a

certificate of appealability (COA) to appeal the denial by the United States

District Court for the W estern District of Oklahoma of his application for relief

under 28 U.S.C. § 2241. See 28 U.S.C. § 2253(c)(1) (requiring COA); Davis v.

Roberts, 425 F.3d 830, 833 (10th Cir. 2005) (COA required to appeal denial of

state prisoner’s § 2241 application). W e deny a COA and dismiss the appeal.

      On August 23, 2004, prison officer Steven Tucker filed a misconduct report

that he had found “two metal sharpened instruments, one drill bit and one set of

metal clippers” while conducting an inventory of M r. Longstreth’s property

before M r. Longstreth was to be transferred to another facility. R. Doc. 23 Ex. 5

at 1 (R esp’ts’ A nswer to Pet. for W rit of Habeas Corpus with Br. in Supp.,
Apr. 21, 2005). According to the report, M r. Longstreth explained to the

investigating officer: “I was a barber, these were part of the barber tools. They

were in a barber box satchel. Officer Tucker didn’t find those items, Of[ficer]

Clark did. They were not found in my property. These same officers were the

same ones involved in an assault and battery on me.” Id. at 2. The investigation

report notified M r. Longstreth that a hearing on the matter would be held on

September 9, 2004.

      At the hearing M r. Longstreth offered several documents pertaining to

grievances he had filed against Officer Tucker for allegedly assaulting him. H e

argued that the hearing officer should consider those documents to impeach

Tucker’s report. The hearing officer stated that he had considered the documents

but had determined that they were not relevant to the proceeding and did not

impact Tucker’s credibility because they were merely M r. Longstreth’s account of

the alleged assault. The hearing officer, relying on the incident report and

M r. Longstreth’s admission that he had access to those types of tools, found him

guilty and imposed a punishment of 30 days’ disciplinary segregation, loss of 365

days of earned-time credits, and demotion to classification level 1 for 90 days.

      M r. Longstreth sought a due-process review from the director of the

Department of Corrections, whose designee found that there was sufficient

evidence to support the finding, that the punishment was w ithin the allowable

sanctions for his offense, and that disciplinary procedures had been followed.

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      M r. Longstreth’s § 2241 application alleged that he had been denied due

process in a prison disciplinary hearing because (1) there was no credible

evidence to support the finding of guilt; (2) there was no evidence to support the

credibility of the reporting officer; (3) the hearing officer failed to consider

evidence of the reporting officer’s retaliatory motive; (4) prison authorities failed

to investigate evidence of retaliation and a set-up; (5) the hearing officer was

biased; and (6) the punishment imposed exceeded that allowed. The district

court, adopting the magistrate judge’s report and recommendation, denied his

application and denied a CO A. It held that (1) the reporting officer’s incident

report was sufficient evidence to support the finding of guilt; (2) the hearing

officer could believe the reporting officer without corroborating evidence; (3) the

hearing officer read and considered the documents that M r. Longstreth offered

into evidence; (4) the hearing officer considered evidence relating to the alleged

set-up and no further investigation was required; and (5) there was insufficient

evidence that the hearing officer was biased. As for M r. Longstreth’s claim that

his penalty was excessive, the court held (6) that the punishment did not violate

the ex post facto clause because the penalty for his disciplinary infraction had

been established before he committed the infraction, and (7) that even if the

punishment involved an atypical and significant hardship, such hardship could be

imposed when, as in this case, he had received due process. The district court

also held that M r. Longstreth had not stated a claim for retaliation in his opening

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brief, and that assuming such a claim could be found in his reply brief, it was

raised too late.

       Before this court M r. Longstreth appears to be asserting four claims: (1)

that the evidence relied on by the hearing officer was insufficient to establish

guilt, in part because he had challenged the credibility of the reporting officer yet

the authorities had failed to investigate his claim that the reporting officer had a

retaliatory motive; (2) that the district court erred in finding that there was “some

evidence” to support the finding of guilt without conducting an evidentiary

hearing to assess credibility; (3) that the district court erred in ruling that he had

failed to state a claim of retaliation because he had argued in his brief that the

reporting officer falsified evidence against him after he had filed grievances

against the reporting officer; and (4) that the punishment imposed by the

disciplinary hearing committee constituted an atypical and significant hardship.

I.     D ISC USSIO N

       A COA will issue only if M r. Longstreth makes “a substantial showing of

the denial of a constitutional right.” § 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. M cDaniel, 529 U.S. 473, 484 (2000)

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

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

wrong.” Id.

      A prisoner’s due-process rights are limited. “Prison disciplinary

proceedings are not part of a criminal prosecution, and the full panoply of rights

due a defendant in such proceedings does not apply.” Wolff v. M cDonnell, 418

U.S. 539, 556 (1974). The minimum requirements of procedural due process in a

prison disciplinary proceeding are that the inmate receive “(1) advance written

notice of the disciplinary charges; (2) an opportunity, when consistent with

institutional safety and correctional goals, to call witnesses and present

documentary evidence in his defense; and (3) a written statement by the factfinder

of the evidence relied on and the reasons for the disciplinary action.”

Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985); see

Wolff, 418 U.S. at 563–66. There must also be “some evidence in the record”

supporting the findings of the prison disciplinary board. Hill, 472 U.S. at 454.

This is all the process that is required. See Shakur v. Selsky, 391 F.3d 106, 119

(2d Cir. 2004) (“the only process due an inmate is that minimal process

guaranteed by the Constitution, as outlined in Wolff.”); Piggie v. Cotton, 342 F.3d

660, 662 (7th Cir. 2003) (only process due prisoner in disciplinary hearing is

advance written notice of the charges, opportunity to present evidence to

impartial decision-maker, and written explanation for discipline supported by

“some evidence.”); Brown v. Rios, 196 Fed. App’x 681, 683 (10th Cir. 2006)

                                          -5-
(same); Walker v. Edgell, 5 F.3d 548, *2 (10th Cir. 1993) (unpublished table

decision) (same). “Ascertaining whether [the some-evidence] standard is satisfied

does not require examination of the entire record, independent assessment of the

credibility of witnesses, or weighing of the evidence. Instead, the relevant

question is whether there is any evidence in the record that could support the

conclusion reached by the disciplinary board.” Hill, 472 U.S. at 455–56. A

disciplinary board’s decision can be upheld by a reviewing court “even if the

evidence supporting the decision is meager.” M itchell v. M aynard, 80 F.3d 1433,

1445 (10th Cir. 1996) (internal quotation marks omitted).

      M r. Longstreth’s first claim fails because the incident report was “some

evidence.” See Hill, 472 U.S. at 455–56. Although M r. Longstreth concedes that

an incident report is generally adequate, he argues that when an inmate contests

the credibility of the report, “prison disciplinary committee personnel must

corroborate the disciplinary report with credible material facts.” Application for

COA at 10. For support he relies on M cCall-Bey v. Franzen, 585 F.Supp. 1295

(N.D. Ill. 1984), in which the summary report of the defendant’s hearing did not

set forth the facts relied on for a finding of guilt. See id. at 1298. This failure,

according to that district court, violated the prisoner’s right to due process. See

id. M cCall-Bey provides no support for M r. Longstreth’s contention that

corroborating evidence is necessary when the prisoner raises a credibility

challenge, nor are we aware of any other support for that proposition. M cCall-

                                           -6-
Bey is also distinguishable because the facts relied on for finding M r. Longstreth

guilty were set forth in the hearing officer’s report.

       Likewise, we reject M r. Longstreth’s second contention because the district

court was not required to conduct an evidentiary hearing to determine the

reporting officer’s credibility. See Hill, 472 U.S. at 455 (“Ascertaining whether

[the some-evidence] standard is satisfied does not require . . . independent

assessment of the credibility of witnesses.”). His third contention— that the

district court failed to consider his claim of retaliation— amounts to a restatement

of his first two contentions. He appears to be suggesting that his evidence of

retaliation requires abandonment of the some-evidence standard and an

evidentiary hearing in district court. But we know of no authority suggesting

such a requirement, which would fly in the face of the Supreme Court’s opinion

in Hill.

       M r. Longstreth’s fourth claim is that the punishment imposed constituted

an atypical and significant hardship. The district court properly rejected the

claim because M r. Longstreth received due process, so such hardship can be

imposed. See Wilkinson v. Austin, 545 U.S. 209, 224–25 (2005) (placement in

super-max prison created atypical and significant hardship but was permissible

because preplacement procedure satisfied due process).




                                          -7-
II.   C ON CLU SIO N

      The district court’s resolution of the issues raised in M r. Longstreth’s

application was neither debatable nor wrong. Because M r. Longstreth has failed

to m ake a substantial show ing of the denial of a constitutional right, we DENY a

COA and DISM ISS the appeal. W e GRANT M r. Longstreth’s motion to proceed

in form a pauperis but DENY his “Request for Judicial Notice” regarding

documents he allegedly submitted to the disciplinary hearing officer.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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