                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 22 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    TADD ALAN YORK,

                Petitioner - Appellant,

    v.                                                    No. 01-7111
                                                    (D.C. No. 01-CV-111-S)
    MIKE ADDISON, Warden,                              (E.D. Oklahoma)

                Respondent - Appellee.


                            ORDER AND JUDGMENT            *




Before SEYMOUR , PORFILIO , and BALDOCK , Circuit Judges.


         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.

         Petitioner Tadd Alan York, an inmate in the custody of the Oklahoma

Department of Corrections, seeks a certificate of appealability to challenge the

district court’s rejection of his habeas corpus petition. Because he has failed to


*
      This order and judgment is not binding precedent, except under the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.
make a “substantial showing of the denial of a constitutional right,” as required

by 28 U.S.C. § 2253(c)(2), we deny Mr. York’s request and dismiss his appeal.

      Prison officials accused Mr. York of misconduct and placed him in a

segregated cellblock where Mr. York was subjected to greater confinement and

fewer privileges. Before entering what the prison calls the Restricted Housing

Unit, Mr. York received earned-time credits at Level 4, the highest level of

accrual. Immediately upon entering the Restricted Housing Unit, he was knocked

to Level 1, the lowest level of accrual. Soon after his release he was transferred

to a different prison where he remained at Level 1 accrual status. Carrying that

accrual status to his new prison, he was not restored to Level 4 status for more

than 200 days.

      Mr. York asserts that prison authorities violated his due process rights by

punishing him without providing him either written notice of his infraction or a

hearing at which he could contest the accusations leveled against him. He seeks

these and other procedural protections to which he says he is entitled under Wolff

v. McDonnell, 418 U.S. 539, 564-66 (1974) (holding that prisoners punished by

loss of good time credits must receive (1) written notice of the charges brought

against an inmate at least twenty-four hours before the hearing; (2) the

opportunity to call witnesses and present evidence at the hearing; and (3) a

written statement of the factfinder as to the evidence relied on and the reasons for


                                         -2-
the disciplinary action taken). He recognizes, as he must, that the due process

protections explained in Wolff arise only if he has been deprived of a liberty

interest. Sandin v. Conner, 515 U.S. 472, 487 (1995); see Reply Br. at 2.

Concluding that Mr. York lacked any such liberty interest, the state court rejected

his post-conviction motion. The federal district court agreed and denied

Mr. York’s habeas corpus petition. Mr. York seeks to appeal that decision.

      As the state court recognized, Sandin v. Conner, above, guides the analysis

of Mr. York’s petition. In Sandin, the Supreme Court held that prison

disciplinary actions required due process of law only when the restraint on liberty

“imposes atypical and significant hardship on the inmate in relation to the

ordinary incidents of prison life.” Id. at 484. Mr. York has not demonstrated

that his confinement in the Restricted Housing Unit constituted an atypical and

significant hardship; indeed, Sandin concluded that a similar punishment was not

protected by the due process clause. See id. at 485-86; see also Talley v. Hesse,

91 F.3d 1411, 1413 (10th Cir. 1996) (holding that prisoner lacked liberty interest

in not being placed in administrative segregation).

      Sandin also held that disciplinary actions that do not “inevitably affect the

duration” of a prisoner’s sentence are not protected by the due process clause.

See Sandin, 515 U.S. at 487. Mr. York claims, and the state does not deny, that

the disciplinary action he suffered temporarily diminished the rate at which he


                                         -3-
accrued earned-time credits, but he has not shown that this “inevitably” affected

the duration of his sentence; at the most he has shown that it might have affected

the length of his sentence. See Antonelli v. Sheahan, 81 F.3d 1422, 1431 (7th

Cir. 1996) (holding loss of opportunity to earn good-time credits not

constitutionally protected under Sandin); Luken v. Scott, 71 F.3d 192, 193 (5th

Cir. 1995) (“mere opportunity” to earn good-time credits does not amount to

liberty interest) (emphasis in original). He has thus failed to show that he was

deprived of any protected liberty interest. 1

      Mr. York’s request for a certificate of appealability is DENIED. His

appeal is accordingly DISMISSED. His request to proceed in forma pauperis is

DENIED.



                                                    Entered for the Court



                                                    Bobby R. Baldock
                                                    Circuit Judge




1
       Mr. York relies largely on Hughes v. Rowe , 449 U.S. 5 (1980). That case,
however, held only that it was error for the district court to dismiss a prisoner’s
due process claim without receiving affidavits or any other evidence from prison
officials responding to or explaining the facts alleged by the inmate. The Court
specifically stated that its holding was “not intended to express any view” on the
merits of the petitioner’s due process claim.   Id. at 12.

                                          -4-
