                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           April 6, 2006
                            FOR THE TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                          Clerk of Court

    STEVEN KEITH WATTERS,

                Petitioner-Appellant,

    v.                                                    No. 04-7122
                                                    (D.C. No. 01-CV-437-P)
    CHARLES RAY, Warden,                                  (E.D. Okla.)

                Respondent-Appellee.


                            ORDER AND JUDGMENT *


Before LUCERO, EBEL, and MURPHY, Circuit Judges.



         Steven Keith Watters, an Oklahoma state prisoner, appeals the district

court’s denial of his 28 U.S.C. § 2241 petition asserting constitutional violations

in connection with his prison disciplinary hearing. We exercise jurisdiction

pursuant to 28 U.S.C. § 1291 and affirm.



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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not binding precedent, except under the doctrines of law of the case, res judicata,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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
                FACTUAL AND PROCEDURAL BACKGROUND

      After a urine sample from Mr. Watters indicated the presence of

cannibinoid (marijuana), prison officials charged him with the offense of

individual disruptive behavior. A disciplinary hearing officer found Mr. Watters

guilty of the offense and, as punishment, revoked 120 days of earned credits,

imposed ten days of disciplinary segregation, and ordered the loss of three

non-contact visits. Mr. Watters’ administrative appeals were denied.

      Through an attorney, he then filed a petition for a writ of mandamus in

state district court claiming that prison officials violated his rights to due process

and equal protection. Specifically, he alleged constitutional error in the prison’s

failure to perform a confirmation test, its refusal to accept live testimony at the

disciplinary hearing, and its failure to provide chain of custody evidence. The

state district court made factual findings concerning the evidence against

Mr. Watters and the conduct of prison proceedings. Applying the standards set

out by the Supreme Court in Superintendent v. Hill, 472 U.S. 445, 455-56 (1985),

and Wolff v. McDonnell, 418 U.S. 539, 564-67 (1974), the court concluded that

there was some evidence to support disciplinary sanctions and that Mr. Watters

had received the process due under the United States Constitution. It therefore

denied mandamus relief.




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      Mr. Watters appealed to the Oklahoma Supreme Court, which transferred

the case to the Oklahoma Court of Criminal Appeals (OCCA). That court

declined to assume original jurisdiction because Mr. Watters’ filing did not

include a certified copy of the record in accordance with its rules. In an effort to

cure this omission, his attorney filed a motion for reconsideration, along with a

Designation of Appellate Record. The attorney stated that the failure to comply

with court rules was attributable to his own administrative error. OCCA denied

the motion.

      Mr. Watters turned to federal district court for § 2241 habeas relief.

Respondent moved for dismissal, arguing that Mr. Watters was procedurally

barred from raising his claims in federal court because he had failed to properly

appeal the state district court’s denial of relief. As respondent explained, federal

habeas courts do not address issues that have been defaulted in state court on an

independent and adequate state procedural ground, unless petitioner shows cause

and prejudice or a fundamental miscarriage of justice. Coleman v. Thompson,

501 U.S. 722, 750 (1991); Demarest v. Price, 130 F.3d 922, 941-42 (10th Cir.

1997). Mr. Watters’ counsel asserted that his own failure to follow OCCA rules

should not result in denial of habeas relief to his client.

      The magistrate judge assigned to the case characterized Mr. Watters’ effort

to remove the procedural bar as a claim of ineffective assistance of counsel, to be


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evaluated under the two-part Strickland test which requires a showing of deficient

performance and prejudice resulting from the deficiency. See Strickland v.

Washington, 466 U.S. 668, 688, 692 (1984). The magistrate judge found that

counsel’s failure to perfect an appeal of the mandamus fell below an objective

standard of reasonableness and, citing the case of Romero v. Tansy, 46 F.3d 1024,

1031 (10th Cir. 1995), presumed that Watters was prejudiced by that failure.

      Assuming that Mr. Watters had overcome the procedural bar, the magistrate

judge proceeded to evaluate the merits of his claims. She reviewed the state

district court’s decision and decided that the denial of relief was based on a

reasonable determination of the facts and clearly established federal law.

Accordingly, she recommended that the action be dismissed. See 28 U.S.C.

§ 2254(d)(1)-(2) (providing that a federal court will grant habeas relief only if

a state court adjudication on the merits “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States” or “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding”). After consideration of Mr. Watters’ objections, the district court

adopted the magistrate judge’s recommendation and later denied Mr. Watters’

application for a certificate of appealability.




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      On appeal, this court granted a certificate of appealability and directed

respondent to file an appellate brief addressing Mr. Watters’ issues. Respondent

was also required to discuss “whether an Oklahoma state prisoner is

constitutionally entitled to the assistance of counsel when he seeks review of his

prison disciplinary proceeding through a state writ of mandamus, and whether the

ineffective assistance of any such counsel can constitute cause for procedural

default.” Order of August 18, 2005 at 1-2. The case is now fully briefed.

                                    DISCUSSION

      This court reviews de novo the threshold question of whether Mr. Watters

was procedurally barred from seeking § 2241 habeas review in federal district

court. See Anderson v. Attorney Gen., 342 F.3d 1140, 1143 (10th Cir. 2003). The

proper starting point in the analysis is the well-established rule that inmates do not

have a right to counsel in prison disciplinary proceedings. See Baxter v.

Palmigiano, 425 U.S. 308, 315 (1976); Wolff, 418 U.S. at 570. A corollary is that

there is no right to counsel in an action for judicial review of the prison’s decision.

In the absence of such a right, an inmate has no claim of ineffective assistance of

counsel. Coleman, 501 U.S. at 755-57 (refusing to recognize a right to counsel on

collateral review of a criminal conviction).

      The district court incorrectly drew an analogy between a direct criminal

appeal and an action for judicial review of a prison disciplinary ruling. A criminal


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defendant has a right to effective assistance of counsel at trial and on direct

appeal. Romero, 46 F.3d at 1030. For this reason, Strickland prejudice is

presumed if ineffective counsel fails to perfect an appeal. Id. This principle,

however, has no application where there is no right to counsel. And if a prisoner

lacks the right to counsel, “any attorney error that led to the default of [his] claims

in state court cannot constitute cause to excuse the default in federal habeas.”

Coleman, 501 U.S. at 757.

      We conclude that Mr. Watters’ claim of ineffective assistance of counsel

does not excuse his failure to appeal the state court’s mandamus ruling. Further,

our review of the record does not reveal a fundamental miscarriage of justice.

Because Mr. Watters has not shown sufficient cause to overcome the procedural

bar, we AFFIRM the district court’s denial of habeas relief without reaching the

merits of his appellate issues. 1 Mr. Watters’ Motion for Leave to File Out-of-Time

Reply Brief and Motion to Proceed In Forma Pauperis are GRANTED.




1
       This court is “free to affirm a district court decision on any grounds for
which there is a record sufficient to permit conclusions of law, even grounds not
relied upon by the district court.” United States v. Sandoval, 29 F.3d 537, 542 n.6
(10th Cir. 1994) (quotations omitted). It should be noted, however, that we do
not disagree with the district court’s merits determination that Mr. Watters failed
to demonstrate entitlement to habeas relief under the standard of 28 U.S.C.
§ 2254(d)(1).

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      Entered for the Court


      David M. Ebel
      Circuit Judge




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