FILED

United States Court of Appeals

Tenth Circuit

January 17, 2012

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVID ROBIN WHITMORE,

Petitioner - Appellant,

No. 11-6261

(D.C. No. 5:10-CV-01346-M)

W.D. Oklahoma

v.

JUSTIN JONES; THE ATTORNEY

GENERAL OF THE STATE OF

OKLAHOMA,

Respondents - Appellees.

ORDER DENYING CERTIFICATE

OF APPEALABILITY

Before BRISCOE, Chief Judge, MURPHY, and MATHESON, Circuit Judges.

David Robin Whitmore, a state prisoner appearing pro se, seeks to appeal

the district court’s denial of his 28 U.S.C. § 2241 petition. The matter is before

this court on Whitmore’s request for a certificate of appealability (“COA”). See

28 U.S.C. § 2253(c)(1)(A) (providing no appeal may be taken from a “final order

in a habeas corpus proceeding in which the detention complained of arises out of

process issued by a State court” unless the petitioner first obtains a COA); Montez

v. McKinna, 208 F.3d 862, 869 (10th Cir. 2000) (holding that the requirements of

§ 2253(c)(1)(A) apply when the state habeas petitioner is proceeding under

§ 2241). Because Whitmore has not made a “substantial showing of the denial of
a constitutional right,” this court denies his request for a COA and dismisses this

appeal. 28 U.S.C. § 2253(c)(2) (providing that a COA “may issue . . . only if the

applicant has made a substantial showing of the denial of a constitutional right”).

In his § 2241 petition, Whitmore challenged a prison disciplinary

conviction for menacing a member of the prison staff. The matter was referred to

a magistrate judge for initial proceedings pursuant to 28 U.S.C. § 636(b)(1). The

magistrate judge issued a thorough report and recommendation, recommending

that the district court deny Whitmore’s § 2241 habeas petition. In particular, the

magistrate judge concluded Whitmore’s prison disciplinary proceeding complied

with the applicable due process requirements set out in Wolff v. McDonnell, 418

U.S. 539, 556 (1974), and Superintendent v. Hill, 472 U.S. 445, 454 (1985). The

magistrate judge further concluded the disciplinary decision was supported by

“some evidence.” Hill, 472 U.S. at 457. Upon de novo review, the district judge

adopted the report and recommendation and denied Whitmore’s petition.

A COA may issue if Whitmore “has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing,

Whitmore must demonstrate “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.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotation

omitted). In evaluating a request for a COA, it is not the role of this court to

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engage in a “full consideration of the factual or legal bases adduced in support of

the claims.” Id. Instead, this court undertakes “a preliminary, though not

definitive, consideration of the [legal] framework” applicable to each claim. Id.

at 338. Whitmore is not required to demonstrate that his appeal will succeed to

be entitled to a COA. He must, however, “prove something more than the

absence of frivolity or the existence of mere good faith.” Id. (quotations

omitted).

This court has reviewed Whitmore’s Combined Opening Brief and

Application for a COA, the magistrate judge’s report and recommendation, the

district court’s order, and the entire record on appeal pursuant to the framework

set out by the Supreme Court in Miller-El. That comprehensive review

demonstrates Whitmore is not entitled to a COA. The district court’s resolution

of Whitmore’s petition is not reasonably subject to debate and the claims he seeks

to raise on appeal are not adequate to deserve further proceedings. Accordingly,

Whitmore has not “made a substantial showing of the denial of a constitutional

right” and is not entitled to a COA. 28 U.S.C. § 2253(c)(2). 

This court DENIES Whitmore’s request for a COA and DISMISSES this

appeal.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge

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