                                                                                  FILED
                                                                      United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                           Tenth Circuit

                           FOR THE TENTH CIRCUIT                              April 19, 2018
                       _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
MIKEAL GLENN STINE,

      Petitioner–Appellant,

v.                                                          No. 17-1267
                                                   (D.C. No. 1:17-CV-01423-LTB)
JACK FOX,                                                     (D. Colo.)

      Respondent–Appellee.
                     _________________________________

                           ORDER AND JUDGMENT*
                       _________________________________

Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
                   _________________________________

      Mikeal Glenn Stine appeals the district court’s dismissal of his petition for

writ of habeas corpus under 28 U.S.C. § 2241. We affirm.

                                   BACKGROUND

      Stine is a prisoner in the custody of the Federal Bureau of Prisons (BOP), and filed

pro se an Application for Writ of Habeas Corpus under 28 U.S.C. § 2241.1 The district


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
      1
       Because Stine is pro se we construe his filings liberally. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam).
court granted Stine’s Prisoner’s Motion and Affidavit for Leave to Proceed in a Habeas

Action under 28 U.S.C. § 1915.

       Stine claims that the BOP illegally forfeited his future good-time credits in two

ways. First, he claims that in 2004 before sentencing (but while he was incarcerated) the

BOP found that he had committed prohibited acts and removed good-time credits

prospectively—depriving him of his opportunity to earn good-time credits before he had

been sentenced. Second, he claims that in 2004, 2005, 2007, and 2009 the BOP

prospectively forfeited more than the 54 credits a prisoner can earn in a given year, in

violation of federal statute and BOP internal program statements.2

       On these bases, Stine filed his § 2241 application, claiming that he had been

deprived of a liberty interest in violation of due process in both instances and seeking 162

days of good-time credits. The district court determined that Stine had failed to show any

constitutional or statutory violation and so summarily denied the § 2241 petition on the

merits and entered judgment by separate order. This appeal followed.

                                      DISCUSSION

       We review de novo the district court’s dismissal of a § 2241 habeas petition.

Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010). Relief under § 2241 is

warranted only if the applicant “is in custody in violation of the Constitution or laws

or treaties of the United States.” 28 U.S.C. § 2241(c)(3). Stine doesn’t make any



       2
        And Stine does provide documentation that more than 54 days were
disallowed based on disciplinary proceedings in 2005 and 2009. But he provides no
evidence that those disallowances were in fact carried over into the following years.
                                             2
claim that the federal statute creating the good-time-credit regime creates an

independent right.

       So his only potential claim is constitutional—a protected liberty interest.3 A

protected liberty interest may arise from either the Due Process Clause itself, or from

a state or federal law. Fristoe v. Thompson, 144 F.3d 627, 630 (10th Cir. 1998). And

Stine’s claim rests on the federal good-time-credit system. See Sandin v. Conner, 515

U.S. 472, 477 (1995) (“[T]he Due Process Clause itself does not create a liberty interest

in credit for good behavior.”)

       We look at “the language of the statutes” to determine whether they create a

protected liberty interest. Montero v. Meyer, 13 F.3d 1444, 1448 (10th Cir. 1994). “Stated

simply, ‘a State creates a protected liberty interest by placing substantive limitations on

official discretion.’” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 462 (1989) (quoting

Olim v. Wakinekona, 461 U.S. 238, 249 (1983)). So “[a] statute which allows a

decisionmaker to deny the requested relief within its unfettered discretion does not create

a constitutionally-recognized liberty interest.” Fristoe, 144 F.3d at 630.




       3
         Stine’s two claims, though distinct, rest on the premise that he has a right to
unearned credits: He contests the unauthorized “taking of good-time credits . . .
[which] cause[ed him] to spend more time incarcerated than he would without the
illegal forfeiture of good-time credits by the Bureau of Prisons.” Appellant’s Opening
Br. at 2; see Stephens v. Thomas, 19 F.3d 498, 501 (10th Cir. 1994) (“A state inmate’s
due process rights are implicated only when a state’s actions impinge on a protected
liberty interest.”).
        He also asserts, with the same factual bases, that there is an equal protection
problem because inmates are treated differently. But he fails to explain, nor can we
discern, any cognizable equal protection claim.
                                              3
       Because earned good-time credits can be removed only in prescribed

circumstances, there is a liberty interest—and thus due process protections—for those

credits. See Wolff v. McDonnell, 418 U.S. 539, 558 (1974) (“Since prisoners in Nebraska

can only lose good-time credits if they are guilty of serious misconduct, the determination

of whether such behavior has occurred becomes critical, and the minimum requirements

of procedural due process appropriate for the circumstances must be observed.”).

       But the same is generally not true of unearned good-time credits, which tend to be

discretionary. See, e.g., Fogle v. Pierson, 435 F.3d 1252, 1262 (10th Cir. 2006) (finding

no liberty interest in prospective good-time credits under the relevant Colorado statute).

So we look at 18 U.S.C. § 3624, which creates the federal good-time-credit regime to

determine whether assignment of future credits is mandatory or discretionary. A prisoner

who is serving a term greater than one year

       may receive credit toward the service of the prisoner’s sentence, beyond the
       time served, of up to 54 days at the end of each year of the prisoner’s term
       of imprisonment, beginning at the end of the first year of the term, subject
       to determination by the Bureau of Prisons that, during that year, the
       prisoner has displayed exemplary compliance with institutional disciplinary
       regulations.

18 U.S.C. § 3624(b)(1).4

       “If the decisionmaker is not ‘required to base its decisions on objective and

defined criteria,’ but instead ‘can deny the requested relief for any constitutionally

       4
         Stine also points us to 28 C.F.R. § 523.20 which governs good-time credits.
Stine argues that this regulation similarly creates an obligation for BOP to award
good-time credits. The regulation does say that the Bureau “will award” 54-days
credit. 28 C.F.R. § 523.20. But the regulation goes on to say that “the amount of good
conduct time awarded for the year is also subject to disciplinary disallowance.” Id.

                                              4
permissible reason or for no reason at all,’ the State has not created a constitutionally

protected liberty interest.” Olim, 461 U.S. at 249 (citations omitted) (quoting Conn. Bd.

of Pardons v. Dumschat, 452 U.S. 458, 467 (1981) (BRENNAN, J., concurring)); see id.

(The government “creates a protected liberty interest by placing substantive limitations

on official discretion.”). And because no set of facts mandates awarding good-time

credits, the BOP’s discretion isn’t cabined.5

       “As this court [has] explained [], denying a prisoner mandatory earned time

credits—i.e., those to which he has some entitlement—would deprive him of a liberty

interest if those credits advance his mandatory date of release on parole. However, where,

as here, the credits are discretionarily awarded, ‘the defendants have not deprived [the

prisoner] of any earned time to which he was entitled’ and thus no liberty interest is

involved.”6 Fogle, 435 F.3d at 1262 (citations omitted) (quoting Templeman v. Gunter,

16 F.3d 367, 370 (10th Cir. 1994)). Put differently, “[a] prisoner may be accorded relief

for the deprivation of good-time credits if he can demonstrate that ‘the State’s action . . .


       5
         Stine disagrees, pointing to the use of the word “shall” in the statute—however
“shall” never applies to the dispensement of credits. But rather, it’s used where the BOP
can’t apply good time credits. See 18 U.S.C. § 3624 (“[I]f the Bureau determines that,
during that year, the prisoner has not satisfactorily complied with such institutional
regulations, the prisoner shall receive no such credit toward service of the prisoner’s
sentence or shall receive such lesser credit as the Bureau determines to be appropriate.”).
       6
        Stine claims that “[a]fter [the Supreme Court decision in] Sandin a statute
need not be mandatory to create a liberty interest right.” Appellant’s Opening Br. at
6. But Sandin reiterated that where “[t]he decision to release a prisoner rests on a
myriad of considerations[,]” there is no protected liberty interest because it doesn’t
“present a case where the State’s action will inevitably affect the duration of [a]
sentence.” Sandin, 515 U.S. at 487.

                                                5
inevitably affect[ed] the duration of his sentence.’ A prisoner is not entitled to due

process protection for State action that might affect the duration of his sentence.” Hudson

v. Ward, 124 F. App'x 599, 601 (10th Cir. 2005) (unpublished) (citations omitted)

(quoting Sandin, 515 U.S. at 487). So Stine has no liberty interest in his unearned credits.

And that conclusion ends our inquiry.7

       Last, the district court certified that an appeal would not be taken in good faith and

denied leave to proceed in forma pauperis on appeal. Stine filed a motion to proceed in

forma pauperis, which we grant.8

                                     CONCLUSION


       So for the reasons stated above, we affirm the district court.


                                               Entered for the Court


                                               Gregory A. Phillips
                                               Circuit Judge




       7
          We have reached similar conclusions in cases analyzing state-law good-time-
credit regimes. See, e.g., Frazier v. Jackson, 385 F. App’x 808, 811 (10th Cir. 2010)
(unpublished) (holding that an inmate “cannot base his due-process claim on his loss of
eligibility for earned-time credits.”); Brown v. Ulibarri, 298 F. App’x 746, 749–50 (10th
Cir. 2008) (unpublished) (“We find no indication in the New Mexico statute that the
provision of good time credits is obligatory.”).
       8
        Having concluded he has no protected liberty interest, we don’t reach Stine’s
additional arguments.
                                              6
