                                                                                FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                       UNITED STATES COURT OF APPEALS                        July 9, 2009
                                                                        Elisabeth A. Shumaker
                                    TENTH CIRCUIT
                                                                            Clerk of Court


 ALVIN PARKER,

                Petitioner-Appellant,                           No. 08-6223
           v.                                         Western District of Oklahoma
 GREG PROVINCE, Warden,                                (D.C. No. 5:08-CV-00769-D)

                Respondent-Appellee.


                               ORDER AND JUDGMENT*


Before TACHA, KELLY and McCONNELL, Circuit Judges.


       Alvin Parker is a state prisoner currently serving a sentence for second degree

murder. Mr. Parker appealed that sentence multiple times; after the ninth appeal, the

Oklahoma state court imposed sanctions, including the revocation of good-time credits.

57 Okla. Stat. § 566(C). He now seeks a writ of habeas corpus under 28 U.S.C. §

22411—not to challenge his original sentence, but to challenge those sanctions—on the


       *
        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 This order and judgment is not binding precedent,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.
       1
        Mr. Parker originally filed his petition using a § 2254 form, but the district court
treated his petition as a § 2241 petition in accordance with Hamm v. Saffle, 300 F.3d
grounds that the Oklahoma state court violated his due process rights by imposing

sanctions without sufficient evidence that his appeal was, in fact, frivolous. The district

court denied his petition. We granted COA on whether there was sufficient evidence to

justify the trial court’s imposition of sanctions under Oklahoma law in a manner

consistent with the Fourteenth Amendment, and we now reverse.

                                     I. BACKGROUND

       Mr. Parker is currently serving a 199-year sentence for second degree murder. On

February 22, 2008, he filed an application for post-conviction relief in the District Court

of Oklahoma County, claiming to have newly discovered evidence that a key prosecution

witness had testified falsely at his 1990 trial. At that trial, Glenn Briggs, Mr. Parker’s

accomplice, had told the jury that the state had agreed to reduce his murder charge to

grand larceny in exchange for his testimony. Eighteen years later, however, at Mr.

Parker’s parole hearing, the state told the parole board that no deal had been made with

Mr. Briggs in exchange for the testimony. Mr. Parker thereupon petitioned for post-

conviction relief, but the state court rejected his request, finding it to be frivolous.

       This was not Mr. Parker’s first application for post-conviction relief to the District

Court of Oklahoma County—it was his ninth. In fact, the court had sanctioned Mr.

Parker on three prior occasions for filing frivolous pleadings. The court found that Mr.

Parker’s current application lacked merit because “prosecutorial misconduct and the




1213, 1216 (10th Cir. 2002).

                                              -2-
unreliability of the witnesses at his trial are not new issues” and that “[t]hese claims have

been extensively litigated and repeatedly denied on direct, appellate and collateral

review.” Order Imposing Sanctions at 1. Oklahoma law allows the court to impose

certain specified sanctions on inmates who file frivolous applications. 57 Okla. Stat. §

566(C). In light of Mr. Parker’s continuing to file frivolous applications despite being

warned and sanctioned in the past, the court imposed the following sanctions on Mr.

Parker: (1) $3000 to cover costs of attorney’s fees and costs, court clerk’s costs, and the

court’s time and expense; (2) the loss of 720 earned credits; and (3) the removal of Mr.

Parker’s non-essential personal property for nine months. Mr. Parker appealed the

imposition of sanctions to the Oklahoma Court of Criminal Appeals, but his appeal was

denied.

       It is this imposition of sanctions, and not the underlying claim of prosecutorial

misconduct and witness unreliability, for which Mr. Parker now seeks habeas relief in the

federal courts. He argues that the evidence was insufficient to support the imposition of

sanctions under 57 Okla. Stat. § 566(C), amounting to a violation of his due process rights

under the Fourteenth Amendment. Specifically, he contends that the state court’s finding

that his application was “frivolous” was based on the incorrect belief that his claim was

barred by res judicata. In rejecting Mr. Parker’s petition for post-conviction relief, the

state court said, “Petitioner’s sole proposition of error is not proper for consideration

because it has been previously raised and rejected by the Court of Criminal Appeals on

direct appeal. The doctrine of res judicata bars further consideration of this claim.”

                                             -3-
Order Denying Petitioner’s Ninth Application for Post Conviction Relief 8. But Mr.

Parker had never before raised his current claim that the prosecutor had allowed Glenn

Briggs to offer false testimony—indeed, he had only just learned of the alleged disparity

between Mr. Briggs’s trial testimony and statements he later made to the parole board.

Mr. Parker had raised an issue of prosecutorial impropriety regarding a witness’s

testimony on his direct appeal, but, as Mr. Parker informed the state court in his reply

brief opposing sanctions, this had been in regard to another witness, Oscar Henry

Branham. See Reply Br. 1–3. Nevertheless, finding that Mr. Parker’s petition for post-

conviction relief was barred by res judicata and therefore frivolous, and finding that Mr.

Parker had a long history of filing frivolous appeals, the trial court imposed sanctions.

       Mr. Parker challenged the imposition of sanctions before the Oklahoma Court of

Criminal Appeals. In order to show that his current claim had not been resolved on direct

appeal, he provided a side-by-side comparison of his post-conviction application, in

which he challenged the testimony of Mr. Briggs, and his original direct appeal brief, in

which he challenged only the testimony of Mr. Branham. The OCCA nevertheless

upheld the sanctions. It repeated the trial court’s finding that Mr. Parker’s “claims of

prosecutorial misconduct and the unreliability of the witnesses at his trial are not new

issues and that these claims have been ‘extensively litigated and repeatedly denied on

direct, appellate, and collateral review.’” Order Affirming Sanctions 2. It did not address

Mr. Parker’s contention that he had in fact never raised his present claims and that the

trial court had erred in finding the claims barred by res judicata.

                                             -4-
       Mr. Parker then sought habeas relief from the imposition of sanctions in federal

court, again claiming that there was no evidence supporting sanctions because the trial

court erred in finding the claim barred by res judicata. The district court found that the

issue of whether res judicata applied was “unnecessary to the disposition of this case,

which does not concern the merits of the order denying Petitioner’s ninth application.”

Dist. Op. 3, n.3. The court found that there was sufficient evidence supporting the

imposition of sanctions, as Mr. Parker had “both a lengthy litigation history with respect

to post-conviction challenges and a history of sanctions related to such challenges,” had

“repeatedly filed frivolous claims,” and had “ignored the previous admonishments and

sanctions.” Id. at 3. Mr. Parker’s arguments that res judicata should not have applied

were beside the point, as Mr. Parker was not collaterally attacking the state district court’s

denial of his application, but rather the sanctions imposed alongside that denial. The

district court denied Mr. Parker’s request for habeas. We then granted Mr. Parker’s

request for COA.

                                     II. DISCUSSION

       “[A]n inmate’s liberty interest in his earned good time credits cannot be denied

without the minimal safeguards afforded by the Due Process Clause of the Fourteenth

Amendment.” Mitchell v. Maynard, 80 F.3d 1433, 1444 (10th Cir. 1996) (citations

omitted). In evaluating whether or not the evidence before the state court was sufficient

for justifying sanctions under the Oklahoma statute, the district court adopted the “some

evidence” standard that we use when a prisoner challenges a prison disciplinary

                                             -5-
conviction that revokes earned credits. See Superintendent, Mass. Corr. Inst., Walpole v.

Hill, 472 U.S. 445, 454 (1985) (“[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.”) (citations omitted);

Mitchell, 80 F.3d at 1445. The parties dispute whether this standard, which we use when

evaluating revocation of good time credits made by prison disciplinary boards, should

also apply to revocations made by state courts. The state focuses on the proceeding’s

effect, which in both cases is revocation of good time credits, and argues that the

standards of review should be the same; Mr. Parker focuses on the tribunal conducting the

proceeding, which in one case is a prison disciplinary board and in the other is a state

court, and argues that our review of the latter should be more demanding. We need not

resolve this dispute, however, as the “some evidence” standard is not even implicated

when there is no evidence supporting the state court’s finding that Mr. Parker’s appeal

was frivolous.

       The state tells us in its brief that the fact that Mr. Parker “had been previously

sanctioned and warned and that the issues raised in the 9th application to the District Court

were procedurally barred” constitutes sufficient evidence for sanctions under this

standard. Aple. 10. It also refers us to the district court’s order, in which that court cited

evidence of Mr. Parker’s “lengthy litigation history with respect to post-conviction

challenges and a history of sanctions related to such challenges.” Dist. Op. 3. In doing

so, the state, like the previous courts that have considered Mr. Parker’s sanctions, fails to

                                              -6-
address Mr. Parker’s primary argument: that there was no evidence that Mr. Parker’s

claim was frivolous and therefore no grounds to impose sanctions under § 566(C) in the

first place.

       The Oklahoma statute allows a court to impose sanctions if “one or more of the

causes of action are frivolous or malicious.” 57 Okla. Stat. § 566(C). A finding that the

claim was either frivolous or malicious is therefore a necessary precondition to sanctions.

The statute defines “frivolous” as “having no reasonable basis in law or fact, or lacking

any good faith legal argument for the extension, modification, or reversal of existing law,

or being maintained solely or primarily for delay or to harass the party filed against.” 57

Okla. Stat. § 566(B)(1). It defines “malicious” as “filing numerous actions, or actions

brought in bad faith on de minimus issues.” 57 Okla. Stat. § 566(B)(3). The trial court

based its sanctions on the grounds that Mr. Parker’s most recent petition was “frivolous,”

as it concerned “matters that have been previously considered and ruled on.” Order

Imposing Sanctions 2.

       The problem, as Mr. Parker has pointed out several times, is that his current claim

had not been previously considered and ruled on. Though the trial court found his claim

barred by res judicata, by all indications that was an erroneous conclusion. Mr. Parker

had never before claimed any impropriety regarding the testimony of Mr. Briggs; indeed,

he only brought that claim once new evidence had surfaced in a newspaper article.

Under Oklahoma law, courts “will apply the doctrines of res judicata and waiver where a

claim either was, or could have been, raised in the petitioner’s direct appeal.” Browning

                                            -7-
v. State, 144 P.3d 155, 156 (Okla. Crim. App. 2006). The state does not contest that Mr.

Parker had never before challenged the testimony of Mr. Briggs. Instead the state relies

entirely on Mr. Parker’s long litigation history and previous sanctions. It is

understandable that officials would become exasperated after a long string of frivolous

proceedings, but that history does not constitute evidence that Mr. Parker’s current

argument was repetitive or otherwise frivolous. Mr. Parker has never made his current

claim before, nor does it seem that Mr. Parker would have been able to previously raise it

on an earlier occasion, as it was based upon new evidence.

        The Oklahoma statute, 57 Okla. Stat. § 566(C), creates a two-step process for

imposing sanctions: the court must first find that the claim is either frivolous or

malicious, and only then does it have the discretion to sanction the petitioner, presumably

considering matters such as his litigation history and response to past sanctions. If there

is no basis for finding the claim frivolous or malicious, the sanctions are unwarranted, no

matter how lengthy the litigation history or how unresponsive the petitioner has been to

past sanctions. As Mr. Parker has shown that his ninth petition presented a new claim,

and as the state has given no argument for why that new claim was nonetheless precluded

by res judicata, we agree with Mr. Parker that evidence of past frivolous claims alone is

not sufficient to justify the imposition of sanctions under Oklahoma law in the present

case.

                                   III. CONCLUSION

        The state court violated Mr. Parker’s due process rights under the Fourteenth

                                             -8-
Amendment by imposing sanctions under 57 Okla. Stat. § 566(C) for filing a frivolous

claim when there was no evidence that the claim was indeed frivolous. We therefore

REVERSE the district court’s decision denying Mr. Parker’s petition for a writ of habeas

corpus, and we REMAND the case to the district court with instructions to grant the writ

as to the imposition of Mr. Parker’s sanctions.



                                                      Entered for the Court



                                                      Michael W. McConnell
                                                      Circuit Judge




                                            -9-
