                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                     February 28, 2007
                                  TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                        Clerk of Court

 C HA D BR OWN ,

       Petitioner - A ppellant,
                                                         No. 06-6299
 v.                                                (D.C. No. 05-CV-918-R)
                                                         (W .D. Okla.)
 JUSTIN JONES, Director,

       Respondent - Appellee.



                              ORDER
               DENYING CERTIFICATE O F APPEALABILITY


Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.


      Petitioner-Appellant Chad Brow n, an Oklahoma state inmate appearing pro

se, seeks a Certificate of Appealability (COA) so that he may challenge the

district court’s denial of his petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2241. M r. Brown claims that he was denied due process during a prison

disciplinary proceeding because the evidence against him was insufficient. The

matter was assigned to a magistrate judge, who recommended that the petition be

denied because the record contained sufficient evidence to support a finding of

misconduct. The district court adopted the magistrate judge’s recommendations

and denied M r. Brown’s petition. Because M r. Brown’s claim is not reasonably

debatable among jurists, we deny a COA and dismiss the appeal. See Slack v.
M cDaniel, 529 U.S. 473, 484 (2000).



                                     Background

      In January 2005, while M r. Brown was serving a state sentence at the

Howard M cLeod Correctional Facility in Atoka, Oklahoma, correctional officials

charged him with menacing. Allegedly, an inmate made a sexual threat to a

female sergeant through the ladies’ restroom door, and M r. Brown was the only

inmate in the vicinity of the restroom at that time. See Aplt. Br. Ex. 1, 2, 7. M r.

Brown received notice of the charge against him on January 16, when correctional

officials gave him a copy of the offense report.

      M aintaining his innocence, M r. Brown requested a hearing. He asked that

two correctional officers be called to testify that he was not the only one in the

hallway, and he also claimed that video surveillance tapes would show that he

was not the inmate who made the threat. Although the officers were not present

at M r. Brown’s hearing, their statements were made available to him. He was

apparently not given access to the video surveillance tapes he requested, however.

      Following the hearing, M r. Brown was found guilty of menacing and

correctional authorities removed 365 days of credits that he had earned and

reduced his classification level for 90 days. M r. Brown was given a copy of the

Disciplinary Hearing Report, in which the hearing officer explained the specific

reasons why he had determined that M r. Brown was guilty. The hearing officer

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noted that he had relied on the reporting officer’s statement that M r. Brown was

the only inmate in the hallway at the time of the incident and the consistent

statement of another officer that he had not observed any other inmate leave the

unit after the threat was made.

      M r. Brown pursued administrative remedies within the Oklahoma

Department of Corrections (“ODOC”), appealing the hearing officer’s decision to

the w arden and then the director of the O DOC. On M ay 9, 2005, the director’s

designee issued a decision affirming the finding of guilt and the imposition of

sanctions. The next day, Oklahoma adopted a provision allowing for judicial

review, Okla. Stat. tit. 57 § 564.1, which permits an inmate to appeal an adverse

ODOC final decision in a disciplinary appeal to the state district court within 90

days. M r. Brown did not pursue this remedy; instead, he filed a federal habeas

petition on August 11.

      The state moved to dismiss the petition, alleging that M r. Brown had failed

to exhaust state remedies by not appealing the ODOC decision to the state district

court pursuant to § 564.1. Noting conflicting decisions by federal courts in

Oklahoma regarding the retroactivity of the statute and the lack of an

authoritative state court decision on the subject, the magistrate judge declined to

dismiss for failure to exhaust. Instead, he recommended sua sponte that the

district court dismiss the petition for lack of merit.




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                                     Discussion

      Before reaching the merits of M r. Brown’s claim, we must determine

whether he is entitled to a COA. See 28 U.S.C. § 2253(c)(1); M iller-El v.

Cockrell, 537 U.S. 322, 336 (2003). W e will only grant a COA to a petitioner

who makes “a substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). M r. Brown may do so by establishing that “reasonable

jurists could debate whether . . . the petition should have been resolved in a

different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack, 529 U.S. at 484 (internal quotation

marks omitted).

      M r. Brown’s petition asserted that he was denied due process of law when

the hearing officer found him guilty of misconduct based on insufficient evidence.

W e have held that “an inmate’s liberty interest in his earned good time credits

cannot be denied ‘without the minimal safeguards afforded by the D ue Process

Clause of the Fourteenth Amendment.’” Taylor v. W allace, 931 F.2d 698, 700

(10th Cir. 1991) (quoting Ponte v. Real, 471 U.S. 491, 495 (1985)). However,

because prison disciplinary proceedings are not part of a criminal prosecution,

“the full panoply of rights due a defendant in such proceedings does not apply.”

Id. (quoting W olff v. M cDonnell, 418 U.S. 539, 556 (1974)). Rather, the

inmate’s right to due process in a disciplinary proceeding requires only that he

receive: “(1) advance written notice of the disciplinary charges; (2) an

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opportunity, when consistent with institutional safety and correctional goals, to

call witnesses and present documentary evidence in his defense; and (3) a written

statement by the factfinder of the evidence relied on and the reasons for the

disciplinary action.” Superintendent, M ass. Corr. Inst. v. Hill, 472 U.S. 445, 454

(1985). Additionally, the factfinder’s conclusions must be supported by “some

evidence in the record.” Id.

      The district court, relying on the magistrate’s report, concluded that all

three due process requirements were met and that there was evidentiary support

for the finding of misconduct. W e agree, and no reasonable jurist could conclude

otherwise. See Slack, 529 U.S. at 484. M r. Brown was given advance written

notice of the charge against him when correctional officials provided him with a

copy of the offense report on January 16, 2005. He had a hearing on January 23,

in which he was entitled to present evidence, including statements by two alleged

witnesses. The hearing officer completed a Disciplinary Hearing Report, which

was provided to M r. Brown. In the report, the hearing officer pointed to

statements by corrections officers that M r. Brown was the only one in the vicinity

of the ladies’ restroom and that no other inmates were seen leaving the area at the

time of the incident. This evidence is sufficient to support a finding of

misconduct, notwithstanding M r. Brown’s complaint that he was not provided

various security tapes.

      M r. Brown’s appeal also argues that he was denied due process because the

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hearing officer who found him guilty of misconduct was allegedly a witness to the

incident. This issue was not raised in his § 2241 petition and not ruled upon by

the district court. It is well established that we “will not consider an issue raised

for the first time on appeal.” Tele-Commc’ns, Inc. v. Comm’r, 104 F.3d 1229,

1232 (10th Cir. 1997).

      Accordingly, we DENY the request for a COA, DENY the request to

proceed IFP, and DISM ISS the appeal.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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