                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-23-2005

DeVaughn v. Dodrill
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4162




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"DeVaughn v. Dodrill" (2005). 2005 Decisions. Paper 666.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/666


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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 03-4162
                                   ________________

                                RICHARD DeVAUGHN

                                            v.

                                 D. SCOTT DODRILL

                    _______________________________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                               (D.C. Civ. No. 03-cv-00565)
                     District Judge: Honorable Richard P. Conaboy
                    _______________________________________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                 MARCH 21, 2005
              Before: ROTH, MCKEE AND ALDISERT, Circuit Judges.

                               (Filed : August 23, 2005)
                              _______________________

                                     OPINION
                              _______________________

PER CURIAM

      Richard DeVaughn appeals from the District Court’s order denying his habeas

corpus petition challenging the forfeiture of good time credits. Because we lack

jurisdiction to consider DeVaughn’s appeal absent a certificate of appealability (“COA”),
we will construe his notice of appeal as a request for a COA under 28 U.S.C. § 2253(c).

For the reasons that follow, we will deny the request.

       DeVaughn is currently incarcerated at the United States Penitentiary in Terre

Haute, Indiana, serving a sentence imposed by the Superior Court of the District of

Columbia. Before being transferred to Terre Haute, DeVaughn was incarcerated at the

United States Penitentiary in Lewisburg, Pennsylvania. While DeVaughn was housed in

Lewisburg, an inmate disturbance erupted in the recreation yard involving District of

Columbia inmates and Hispanic inmates. DeVaughn was issued a misconduct report for

his participation in the disturbance. Following a disciplinary hearing, DeVaughn was

found guilty and was sanctioned with sixty days in segregation, a loss of privileges, and a

forfeiture of 1372 good time credits.

       In April 2003, while still incarcerated in Lewisburg, DeVaughn filed a habeas

corpus petition under 28 U.S.C. § 2241 in the District Court, challenging the investigation

and disciplinary hearing leading to the forfeiture of his good time credits. Without

conducting an evidentiary hearing, the District Court rejected DeVaughn’s claims on the

merits and denied his habeas corpus petition. DeVaughn appeals.

       We consider first whether DeVaughn’s habeas corpus petition is properly filed

under 28 U.S.C. § 2241 or § 2254. Section 2241 authorizes district courts to issue a writ

of habeas corpus to a state or federal prisoner who “is in custody in violation of the

Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). Section



                                              2
2254 is more specific and confers jurisdiction on district courts to “entertain an

application for a writ of habeas corpus in behalf of a person in custody pursuant to the

judgment of a State court only on the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A prisoner

challenging either the validity or execution of his state court sentence must rely on the

more specific provisions of § 2254 and may not proceed under § 2241. See Coady v.

Vaughn, 251 F.3d 480, 485 (3d Cir. 2001). For purposes of the federal habeas corpus

statute, the Superior Court of the District of Columbia is a “State court.” See Madley v.

United States Parole Comm’n, 278 F.3d 1306, 1309 (D.C. Cir. 2002).

       Here, DeVaughn challenges the execution of his state sentence, i.e., the forfeiture

of his good time credits. Accordingly, he must proceed under § 2254, not § 2241, and he

must obtain a COA under § 2253(c) before we can consider his appeal. Coady, 251 F.3d

at 485-86. Neither we nor the District Court granted a COA. Absent a COA, we lack

jurisdiction to consider DeVaughn’s appeal. See Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). Rather than dismiss the appeal outright, however, we will construe DeVaughn’s

notice of appeal as a request for a COA.1 See Coady, 251 F.3d at 486; Fed. R. App. P.

22(b)(2).




   1
    In deciding whether to grant a COA, we have considered the arguments raised the
parties’ briefs.

                                              3
       We may issue a COA “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where the district court denies

a habeas petition on the merits, a COA should issue when jurists of reason would debate

the correctness of the district court’s decision. See Miller-El, 537 U.S. at 338.

       DeVaughn falls short of satisfying this standard. His primary contention on appeal

is that the District Court failed to address his argument that he remains subject to certain

provisions of the District of Columbia Code (“D.C. Code”) governing the forfeiture of

good time credits. DeVaughn is correct that the District Court did not expressly address

this claim. Regardless, DeVaughn has failed to explain how the length of his detention

would have been any shorter if any particular provisions of the D.C. Code had been

applied.2

       DeVaughn’s submissions to us are devoid of any other argument calling into

question the legality of the forfeiture of good time credits or any other sanction imposed.3

   2
    We need not decide whether any of the cited provisions of the D.C. Code applies to
District of Columbia inmates such as DeVaughn who are in the custody of the Bureau of
Prisons. We note DeVaughn’s argument (apparently in the alternative) that if he were
treated as a federal prisoner, he would be subject to the forfeiture of no more than 54
good time credits per calendar year. He fails to cite any authority for this proposition.
We are aware that a federal prisoner may earn up to 54 good time credits per year under
18 U.S.C. § 3624(b). This statute mentions no limit on the number of good time credits a
federal prisoner may forfeit per year, however. One of the federal regulations DeVaughn
cites specifically allows for the forfeiture of up to 100 per cent of earned good time credit
without any numerical limitation. See 28 C.F.R. § 541.13 (Table 3).
   3
    Generally, an appellant’s failure to raise on appeal an argument he pressed in the
district court results in a waiver of that argument. See Nagle v. Alspach, 8 F.3d 141, 143
(3d Cir. 1993) (citing Fed. R. App. P. 28(a)(3) and (5)).

                                              4
Nonetheless, we have reviewed the District Court’s decision, in particular its rejection of

DeVaughn’s claim of a violation of due process in the disciplinary investigation and

hearings leading to the imposition of sanctions. For substantially the reasons given by the

District Court, we are convinced that jurists of reason would not debate the correctness of

its decision.

       In sum, DeVaughn has failed to make a substantial showing of the denial of a

constitutional right. Accordingly, we will deny his request for a COA.




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