                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   April 16, 2014
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



 RICHARD L. DOPP,

              Petitioner - Appellant,

 v.                                                     No. 14-6025
                                                (D.C. No. 5:12-CV-00703-D)
 JUSTIN JONES, Director DOC;                           (W. D. Okla.)
 RANDALL WORKMAN, Warden,

              Respondent - Appellee.


                           ORDER DENYING
                    CERTIFICATE OF APPEALABILITY *


Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.




      Petitioner and appellant, Richard L. Dopp, an Oklahoma state prisoner

proceeding pro se, seeks a certificate of appealability (COA) in order to appeal

the district court’s denial of his petition under 28 U.S.C. § 2241. Having

concluded that he fails to meet the standards for issuance of a COA, we deny Mr.

Dopp’s request for a COA and dismiss this matter.




      *
       This order is not binding precedent, except under the doctrines of law of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.
                                 BACKGROUND

      Mr. Dopp is serving a sentence of life imprisonment, without the possibility

of parole. Mr. Dopp claims that he was denied substantive and procedural due

process in connection with two disciplinary convictions, in which he was found

guilty of escape and of possession of contraband. He accordingly filed the instant

habeas petition, pursuant to 28 U.S.C. § 2241. Additionally, Mr. Dopp filed a

Motion for Preliminary Injunction and/or Temporary Restraining Order, seeking

mandated access to an adequate law library and legal materials.

      Both matters were referred to a magistrate judge. With respect to the

request for injunctive relief, the magistrate judge issued a Report and

Recommendation, explaining her rationale for denying the requested relief:

            Petitioner’s underlying habeas claims allege a lack of
      procedural and substantive due process in prison disciplinary
      proceedings and bear no relationship to Petitioner’s subsequent
      alleged denial of access to a law library and legal materials.
      Therefore, the undersigned finds that a preliminary injunction would
      be inappropriate in the instant case and recommends that the motion
      be denied.

9/19/2012 Report & Recommendation at 2.

      With respect to the habeas petition, the magistrate judge “recommends that

the Petition be summarily dismissed without prejudice in accordance with Rule 4

of the Rules Governing Section 2254 Cases because even if Petitioner’s

allegations are true, the court cannot grant any effective remedy in habeas relief.”

2/7/2013 Report & Recommendation at 1.

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      The district court adopted each Report in separate Orders, further

explaining its reasons for agreeing with the magistrate judge’s recommendations.

It then dismissed Mr. Dopp’s habeas petition without prejudice, and denied his

motion for a preliminary injunction or temporary restraining order. The district

court subsequently denied Mr. Dopp’s motion to Alter or Amend/Reconsider.

The court did not address the availability of a COA to permit an appeal, but it did

grant Mr. Dopp’s’ motion for leave to proceed in forma pauperis on appeal,

finding that he “has made reasoned, nonfrivolous arguments in support of the

issues to be raised on appeal.” 3/10/2014 Order at 1. Mr. Dopp requests a COA

from this court to enable an appeal from the denial of his habeas petition.

                                   DISCUSSION

      A state prisoner must obtain a COA before pursuing a habeas petition.

Allen v. Zavaras, 568 F.3d 1197, 1199 (10th Cir. 2009); 28 U.S.C.

§ 2253(c)(1)(A). A COA will issue “only if the applicant has made a substantial

showing of the denial of a constitutional right,” which is accomplished when an

applicant shows “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. McDaniel, 529 U.S. 473, 484 (2000) (quotation omitted). An applicant

denied habeas relief on procedural grounds “must also show ‘that jurists of reason

would find it debatable . . . whether the district court was correct in its procedural

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ruling.’” Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008) (quoting

Slack, 529 U.S. at 484).

      As indicated, Mr. Dopp is serving a life sentence without the possibility of

parole for a drug trafficking crime committed after a previous felony conviction.

Accordingly, under Oklahoma law, he is not eligible to earn time credits toward

completion of his prison term, nor is he eligible for parole. See Okla. Stat. tit. 57,

§§ 138(A), 332.7(A). This was the basis upon which the magistrate judge

recommended summary dismissal without prejudice.

      In his objections to the magistrate judge’s Report, Mr. Dopp argued that the

magistrate judge had overlooked the possibility that the disciplinary convictions

might deprive him of an opportunity to obtain a commutation of his sentence. His

argument is that if the misconduct convictions remain on his record he will never

receive a favorable recommendation by the Pardon and Parole Board or any

favorable actions by the Governor on an application for commutation. Mr. Dopp

thus claims that the disciplinary convictions will inevitably affect the duration of

his sentence to some degree.

      The district court conducted a de novo review of the issue, and determined

that “the possibility that Petitioner’s misconduct convictions might one day

disadvantage him with respect to a possible commutation of his sentence is too

speculative to provide a basis for a writ of habeas corpus. The cases on which

Petitioner relies are inapposite and address the issue of whether a protected

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liberty interest was infringed.” 3/20/2013 Order at 2. We agree with the district

court’s analysis, as we explain further below.

      “The Fourteenth Amendment prohibits states from depriving citizens of

liberty without due process of law.” Wilson v. Jones, 430 F.3d 1113, 1117 (10th

Cir. 2005); see Sandin v. Conner, 515 U.S. 472 (1995) (holding that prisoners are

entitled to due process before being subjected to disciplinary conduct that

inevitably affects the duration of their sentence). “A liberty interest may arise

from the Constitution itself, by reason of guarantees implicit in the word ‘liberty,’

or it may arise from an expectation of interest created by state laws or polices.”

Wilkinson v. Austin, 545 U.S. 209, 221 (2005); see also Ky, Dep’t of Corr. v.

Thompson, 490 U.S. 454, 461 (1989) (“[S]tate law may create enforceable liberty

interests in the prison setting.”).

      In Wilson, the plaintiff, an Oklahoma state prisoner, was convicted of a

Class X misconduct, which required his classification level to be reduced from

four to one. That mandatory reduction implicated a liberty interest because

“[p]rison officials exercised absolutely no discretion over the imposition of [the

punishment] and had no discretion to allow [the plaintiff/prisoner] to avoid

[punishment].” Wilson, 430 F.3d at 1120-21. Because the misconduct conviction

“‘inevitably affect[ed] the duration of [the prisoner’s] sentence,’” id. at 1120

(quoting Sandin, 515 U.S. at 487), he was entitled to the due-process protections

of Wolff v. McDonnell, 418 U.S. 539, 557 (1974). Wilson, 430 F.3d at 1124.

                                         -5-
      By contrast, in Cardoso v. Calbone, 490 F.3d 1194, 1198 (10th Cir. 2007),

we held that a prisoner’s reduction in classification was “not mandatory” and

therefore did not implicate a liberty interest. Wilson and Cardoso thus indicated

that if the prisoner’s demotion was not discretionary and did inevitably affect the

duration of his sentence, he had a liberty interest in his credit-earning

classification level. That is not the case here, where Mr. Dopp has no liberty

interest in maintaining an incident-free disciplinary record, so that he might

possibly (indeed, entirely speculatively) receive favorable commutation

consideration.

      Furthermore, the district court observed that the magistrate judge’s

recommendation for dismissal of Mr. Dopp’s habeas petition was “not based on

the lack of a protected liberty interest but the unavailability of a habeas remedy.”

3/20/2013 Order at 3. As the court noted, “[i]n this circuit, a prisoner who

challenges the fact or duration of his confinement and seeks immediate release or

a shortened period of confinement, must do so through an application for habeas

corpus.” Id. (quoting Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir.

2012) (citing McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811 (10th Cir.

1997))). By contrast, a request for “a change in the place of confinement is

properly construed as a challenge to the conditions of confinement” and must be

brought as a civil rights action. Id. Similarly, a request or a “challenge to a

transfer from one security level to another or from one prison to another is

                                          -6-
cognizable under § 1983.” Boutwell v. Keating, 399 F.3d 1203, 1209 (10th Cir.

2005).

         In sum, expungement of Mr. Dopp’s misconduct convictions in this case

would not result in a speedier release from prison, because it implicates no liberty

interest nor does it affect his right to earn time credits or be considered for parole,

as he has no such right. As the district court stated, “[t]he only effect of

expungement would be to increase Petitioner’s inmate classification and improve

his housing assignment under maximum security at OSP; in other words, the relief

he seeks would affect only his conditions of confinement. Under the

circumstances, Plaintiff’s remedy is a civil action for relief under § 1983.”

3/20/2013 Order at 3. The court accordingly adopted the Report and dismissed

the 28 U.S.C. § 2241 petition without prejudice to refiling.

         Finally, we note that Mr. Dopp argues in his request for a COA that he

should have been permitted to amend his petition prior to dismissal. This is the

first time Mr. Dopp suggests he might want to amend his petition, or claims that

the district court erred in failing to spontaneously grant such amendment.

Generally, we decline to consider issues raised for the first time on appeal. See

United States v. Mora, 293 F.3d 1213, 1216 (10th Cir. 2002). And, while we

construe Mr. Dopp’s pro se pleadings liberally, we do not excuse him from

following “the same rules of procedure that govern other litigants.” Garrett v.

Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).

                                          -7-
      We therefore do not consider Mr. Dopp’s argument that he should have

been permitted to amend his petition. We do note, however, that the dismissal of

his petition is without prejudice to refiling.

                                   CONCLUSION

      For the foregoing reasons, we DENY Mr. Dopp a COA and DISMISS this

matter.

                                                 ENTERED FOR THE COURT


                                                 Stephen H. Anderson
                                                 Circuit Judge




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