                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                     UNITED STATES COURT OF APPEALS October 30, 2008
                                                                 Elisabeth A. Shumaker
                                  TENTH CIRCUIT                      Clerk of Court



 MARVIN BROWN,

          Petitioner-Appellant,
                                                         No. 07-2124
 v.                                          (D.C. No. 2:06-CV-01109-RB-LFG)
                                                          (D. N.M.)
 ROBERT ULIBARRI, Warden,

          Respondent-Appellee.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before HENRY, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges.


      Petitioner-Appellant Marvin Brown, a state prisoner proceeding pro se,

seeks a certificate of appealability (“COA”) to appeal the district court’s

dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2241. See

28 U.S.C. § 2253(c)(1) (requiring a COA before prisoner may appeal the

dismissal of a habeas petition). We have jurisdiction under 28 U.S.C. §§ 1291



      *
          This Order and Judgment is not binding precedent, except under the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. After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
and 2253(a). Reviewing Mr. Brown’s filings liberally, 1 we hold that no

reasonable jurist could conclude that the district court erred. See Slack v.

McDaniel, 529 U.S. 473, 483-84 (2000). Accordingly, we DENY Mr. Brown’s

application for a COA and DISMISS his appeal.

                                I. BACKGROUND

      In 1994, Mr. Brown was sentenced to twenty-six years in prison after

conviction by a state jury for various drug-related crimes. Pursuant to the

provisions of N.M. Stat. Ann. § 33-2-34, New Mexico prisoners can receive good

time credits—that is, “meritorious deductions”—from their sentences upon

recommendation of the classification committee, in an amount of up to thirty days

per month. N.M. Stat. Ann. § 33-2-34(A). 2 Mr. Brown received less than thirty

credits in each of the months of July, August, and September 2001, as well as

January 2002, because of misconduct recorded on “behavior notifications.” On

the basis of a September 25, 2001, misconduct report, the classification



      1
              Because Mr. Brown is proceeding pro se, we review his pleadings
and filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Howard
v. U. S. Bureau of Prisons, 487 F.3d 808, 815 (10th Cir. 2007).
      2
              Although this case involves incidents in 2001 and 2002, we cite the
version of the New Mexico statute in effect from 1988 to 1999. See 1999 N.M.
Laws, Ch. 238, § 8 (“As to persons convicted of a criminal offense committed
prior to July 1, 1999, the laws with respect to meritorious deductions in effect at
the time the offense was committed shall apply.”). The revisions to the statute in
1999, 2003, 2004, and 2006 are not relevant here. See 2006 N.M. Laws, Ch. 82
§§ 1, 2; 2004 N.M. Laws, Ch. 75, § 1; 2003 N.M. Laws 1st Sp. Sess., Ch. 1, § 13;
1999 N.M. Laws, Ch. 238 §§ 1, 2.

                                         -2-
committee ruled—without Mr. Brown present—that he would forfeit ninety days

of good time credit already earned and be placed in disciplinary segregation. See

generally N.M. Stat. Ann. § 33-2-36 (permitting forfeiture of good time credits

for misconduct violations). He received no credits in October or November 2001

while he was in disciplinary segregation. See generally N.M. Stat. Ann. § 33-2-

34(A)(2) (providing that a prisoner in disciplinary segregation is not eligible for

credits).

       Mr. Brown filed a petition for writ of habeas corpus in state court, claiming

that both the withholding of good time credits and the forfeiture of credits already

earned violated his federal constitutional rights. His petition was denied after two

evidentiary hearings. The state court did order, however, that the committee

reconvene with Mr. Brown present and review its ninety day forfeiture decision,

but the committee ultimately adopted the same conclusion. The New Mexico

Supreme Court denied Mr. Brown’s petition for writ of certiorari. He then filed

in federal court a petition for writ of habeas corpus under 28 U.S.C. § 2254.

       The magistrate judge, construing the petition as one brought under 28

U.S.C. § 2241 because the claims related to the execution of his sentence rather

than the fact of his conviction, 3 concluded that all of the claims had been raised




       3
            Construing the petition as brought under 28 U.S.C. § 2241 was
proper. See Yellowbear v. Wyo. Att’y Gen., 525 F.3d 921, 925 (10th Cir. 2008).

                                         -3-
and fully exhausted in the state court proceedings, and recommended that each of

the claims be denied on the merits and that the case be dismissed with prejudice.

      Mr. Brown filed timely objections to these recommendations. The district

court overruled all his objections and adopted the magistrate judge’s findings and

recommendations. The district court refused to grant a certificate of

appealability, concluding that Mr. Brown had failed to make a substantial

showing of denial of a constitutional right. Mr. Brown now seeks a certificate of

appealability in order to appeal the dismissal of his § 2241 petition.

                                 II. DISCUSSION

      Under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), issuance of a COA is a jurisdictional prerequisite to appealing the

dismissal of a habeas petition. Miller-El v. Cockrell, 537 U.S. 322, 335-36

(2003); 28 U.S.C. § 2253(c)(1). This applies equally to petitions brought by state

prisoners under § 2254 and § 2241. Montez v. McKinna, 208 F.3d 862, 868-69

(10th Cir. 2000). In order to obtain a COA, Mr. Brown must make “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This

showing involves demonstrating 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). Applying that standard, we

examine whether the district court could have erred in concluding that the state

                                         -4-
court decisions were neither “contrary to, or involved an unreasonable application

of, clearly established Federal law” nor “based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceeding.” 28

U.S.C. § 2254(d).

      In his appellate brief, Mr. Brown reiterates all of the claims asserted in his

federal habeas petition. However, for the most part, Mr. Brown does not address

either the magistrate judge’s recommendations as adopted by the district court or

the district court’s rejection of his objections to those recommendations. Instead,

he reiterates his arguments against the state court’s decision. We agree with the

district court’s rejection of each of his claims.

      First, Mr. Brown argues that he has a right to earn 365 days of good time

credit in a one year period. In his federal habeas petition, he argued that N.M.

Stat. Ann. § 33-2-34 violates this right by permitting only thirty days of good

time credit per month, thus capping the number of credits below the number of

days in a calendar year. However, he did not identify any source for such a right.

The challenged statute provides that “[a]ny inmate . . . may be awarded a

meritorious deduction of thirty days per month upon recommendation of the

classification committee and approval of the warden.” N.M. Stat. Ann. § 33-2-

34(A) (West 1998). 4 Section 33-2-34 appears to be the sole basis for granting

      4
             The current version of the provision states that “[a] prisoner may
earn meritorious deductions upon recommendation by the classification
                                                                       (continued...)

                                          -5-
good time credit, which would preclude any argument that the section itself

violated the right to such credit. That was the conclusion of the state court, which

rejected Mr. Brown’s argument as “without merit” because “the granting of good

time credits per month is mandated by . . . § 33-2-34.” R., Doc. 13, Ex. F, at 2

(Final Order, dated Aug. 7, 2006). “We will not second guess a state court’s

application or interpretation of state law unless such application or interpretation

violates federal law.” Parker v. Scott, 394 F.3d 1302, 1311 (10th Cir. 2005)

(alterations and internal quotation marks omitted). Mr. Brown does not identify

any federal law violation in the interpretation or application of § 33-2-34’s thirty

day per month credit cap. 5 Reasonable jurists could not disagree with the district

court’s denial of this ground for relief.

      Second, Mr. Brown argues that he has a liberty interest in unearned good

time credits; consequently, he reasons, they must be granted unless due process is



      4
       (...continued)
supervisor” and that a prisoner confined for a nonviolent offense may receive “up
to a maximum of thirty days per month of time served.” N.M. Stat. Ann. § 33-2-
34(A)(2), (B) (West 2006).
      5
              On appeal, he presents an argument not made before the district court
that the state court ordered, and the state conceded, that he was eligible for up to
365 days per year, but that the state’s attorney “illegally changed the decision” of
the court. Aplt. Br. at 1-2. We will not hear arguments raised for the first time
on appeal. See, e.g., United States v. A.B., 529 F.3d 1275, 1279 n.4 (10th Cir.
2008) (“We have repeatedly declined to allow parties to assert for the first time
on appeal legal theories not raised before the district court, even when they fall
under the same general rubric as an argument presented to the district court.”),
cert. denied, __ S. Ct. __, 2008 WL 4189667, at *1 (Oct 14, 2008).

                                            -6-
employed to withhold them. 6 In Fogle v. Pierson, 435 F.3d 1252 (10th Cir.

2006), we rejected a similar claim, concluding that the prisoner had “no

constitutionally-protected liberty interest in earning the credits.” Id. at 1262. In

Fogle, we explained that “denying a prisoner mandatory earned time credits—i.e.,

those to which he has some entitlement—would deprive him of a liberty interest if

those credits advance his mandatory date of release on parole.” Id. “However

where . . . the credits are discretionarily awarded, the defendants have not

deprived [the prisoner] of any earned time to which he was entitled and thus no

liberty interest was involved.” Id. (internal quotation marks omitted). The

Colorado statute we held discretionary in Fogle is similar to the New Mexico

statute at issue here. Compare id. (“[E]arned time . . . may be deducted from an

inmate’s sentence” (quoting Colo. Rev. Stat. § 17-22.5-302(1))), with N.M. Stat.

Ann. § 33-2-34(A) (1998) (“Any inmate . . . may be awarded a meritorious

deduction . . . .” (emphasis added)). We find no indication in the New Mexico

statute that the provision of good time credits is obligatory. Cf. Templeman v.

Gunter, 16 F.3d 367, 370 (10th Cir. 1994) (recognizing that a statute which states

      6
              This question is distinct from the divestment of credits already
earned, which does implicate a liberty interest. See Taylor v. Wallace, 931 F.2d
698, 700 (10th Cir. 1991) (addressing “the settled principle that an 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.’” (quoting Ponte v. Real, 471 U.S. 491, 495 (1985))); see also
Brooks v. Shanks, 885 P.2d 637, 638 (N.M. 1994) (holding that earned good time
credits under § 33-2-34 were an entitlement that could only be divested by
following statutory and administrative procedures).

                                         -7-
“the department . . . shall grant . . . an earned time deduction” might implicate the

mandatory rule) (emphasis added)).

      The state court did not directly resolve the question of whether there is a

liberty interest in unearned credits. Instead, it concluded that there was, in any

event, no constitutional violation because the applicable procedures met the

Supreme Court’s test of Wilkinson v. Austin, 545 U.S. 209, 223 (2005). We find

it unnecessary to reach the Wilkinson balancing test because our precedent

demonstrates that there is no liberty interest involved. Thus, we agree with the

district court that no error by the state court provided grounds for relief.

      Mr. Brown’s third argument depends on the merits of his second one. He

argues that behavior log notations were used to withhold good time credits

without appropriate procedures. He argues that he was not permitted to review

his own behavior logs; that he had no avenue to challenge the withholding of the

credits; and that, contrary to the state court’s assertion, he did not appear before a

Unit Management Team that was supposed to explain to him why he did not

receive the credits and tell him he could appeal or request to review the behavior

log record. However, this case presents us with no grounds to review the

adequacy of the state procedures apart from the purported liberty interest in good

time credits. Because these allegations concern good time credits which Mr.

Brown never received in the first place, and because we have concluded that the

decision whether to grant the credits was a matter of discretion not mandated by

                                          -8-
statute, there is no liberty interest at stake which must be protected by adequate

procedures. Therefore, we will not review the procedures by which behavior log

notations led to the withholding of good time credits.

      Mr. Brown’s final argument on appeal concerns the forfeiture of ninety

days of good time credits as a result of his September 25, 2001, misconduct. A

prison officer wrote a misconduct report stating that Mr. Brown had threatened

him, and a disciplinary hearing officer recommended forfeiture of ninety days of

good time credits and disciplinary segregation. The classification committee

approved the recommendation, as did the warden. In response to the claim in Mr.

Brown’s state habeas petition that his rights were violated because he did not

receive a classification hearing, the state court ordered the classification

committee to reconvene and reconsider its decision with Mr. Brown present. The

district court understood the state’s habeas response as averring that this hearing

actually took place.

      Mr. Brown’s federal habeas claim is confusing because he merely repeats

his assertion that the classification committee “could not forfeit [his] earned

good-time of Ninety (90) Days after [it] failed to provide [him] a Classification

Hearing,” but does not mention the ordered rehearing. 7 R., Doc. 1, at 20. He

      7
              Mr. Brown also asserted in his federal habeas petition that there was
insufficient evidence to support the conclusion that he threatened a prison officer,
but he apparently has abandoned that claim in his COA request. Equally
unsuitable for appellate review is his claim—asserted in his objection to the
                                                                       (continued...)

                                         -9-
repeatedly asserts that a hearing was not provided and argues that the resulting

forfeiture violated his federal due process rights.

      Because this claim does involve the loss of vested good time credits,

federal due process requirements are implicated. See Taylor v. Wallace, 931 F.2d

698, 700 (10th Cir. 1991). We recently reiterated that,

             [w]here a prison disciplinary hearing may result in the loss of
             good time credits, . . . the inmate must receive: (1) advance
             written notice of the disciplinary charges; (2) an 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.

Howard v. U. S. Bureau of Prisons, 487 F.3d 808, 812 (10th Cir. 2007) (quoting

Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985)); see Wilson v.

Jones, 430 F.3d 1113, 1117 (10th Cir. 2005). Further, “the findings of the prison

disciplinary board [must be] supported by some evidence in the record.” Howard,

487 F.3d at 812 (quoting Hill, 472 U.S. at 454).

      The only issue properly raised in this COA is whether the failure to provide

a hearing before the classification committee made the forfeiture decision a due

process violation. Whatever the merits of that claim as initially presented to the

      7
        (...continued)
magistrate judge’s decision and now on appeal—that the specific offense of which
he was found guilty did not qualify for the penalty imposed. Mr. Brown did not
raise this claim in his federal habeas petition and did not amend his petition to
include the claim. We will not hear it now. See Jones v. Gibson, 206 F.3d 946,
958 (10th Cir. 2000) (“Petitioner did not make this argument in his revised habeas
petition. Thus, this court need not consider it.”).

                                         -10-
state court, Mr. Brown is differently situated now because he received relief.

Insofar as Mr. Brown is challenging the state’s averment that it complied with the

state court’s order and held a hearing, Mr. Brown has offered nothing to

substantiate the challenge and he carries the burden to do so. Therefore, like the

district court, we have no reason to question this averment.

      Accordingly, we need not address whether the procedures would be

adequate in the absence of a hearing before the classification committee. Instead,

we liberally construe Mr. Brown’s argument to be either (1) that the state did not

follow its own regulations even if the first and subsequently-ordered, second

committee hearings are viewed together, or (2) that the initial failure to provide a

hearing before the forfeiture of the good time credits could not be remedied by

any subsequent action other than restoration of the credits.

      We reject both of these arguments. Mr. Brown points to no procedural

failure other than the absence of a hearing, and that alleged weakness is now

remedied. Further, we reject any argument that the initial failure to provide a

hearing could not be remedied by later action. In sum, there is no argument

before us under which the forfeiture of ninety days of Mr. Brown’s good time

credits would be tainted by a due process violation. Therefore, we conclude that




                                        -11-
reasonable jurists could not dispute the district court’s rejection of Mr. Brown’s

habeas petition on this ground. 8

                                III. CONCLUSION

      With regard to none of his four claims has Mr. Brown made “a substantial

showing of the denial of a constitutional right.” 28 U.S. C. § 2253(c)(2).

Therefore, we DENY his request for a COA and DISMISS his appeal.



                                       Entered for the Court


                                       JEROME A. HOLMES
                                       Circuit Judge




      8
             We need not resolve the state’s argument that this claim was not
properly exhausted because we may dismiss unexhausted claims on the merits.
See Montez, 208 F.3d at 866 (holding that where “no credible federal
constitutional claim” was raised in the petition, we “may deny on the merits an
unexhausted § 2241 petition); cf. 28 U.S.C. § 2254(b)(2).

                                        -12-
