F I L E D

United States Court of Appeals

Tenth Circuit

DEC 30 2004

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STEPHEN GOOCH,

Petitioner-Appellant, No. 04-6264

v. (W.D. Oklahoma)

RON WARD,

Respondent-Appellee.

 (D.C. No. CIV-04-94-HE)

ORDER

Before KELLY, HENRY, and TYMKOVICH, Circuit Judges.

Stephen Gooch, a state prisoner proceeding pro se, seeks a certificate of

appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2241 petition for

habeas corpus. We deny his request for a COA and dismiss this matter.

I. BACKGROUND

Mr. Gooch is in the custody of the Oklahoma Department of Corrections

(“ODOC”) for drug-related convictions. On the morning of July 17, 2003, prison

officials conducted a random “shakedown” of Mr. Gooch’s cell and found “a half

bottle or jar of bleech [sic], a small bottle of floor wax and other misc.
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contraband.” Ex. A. He was charged with a disciplinary offense for violation of

Rule 09-3, which prohibits the “possession/introduction of any drug, narcotic,

intoxicant, chemical, drug paraphernalia not prescribed by medical staff.” Ex. D. 

Mr. Gooch was provided notice of his charge and did not request witnesses for his

disciplinary hearing. At the conclusion of the hearing, he was found guilty of the

offense, based on his admission that he possessed the wax and had knowledge of

the bleach. As punishment, prison officials placed him in disciplinary segregation

for fifteen days and revoked ninety days of earned credits. 

Mr. Gooch undertook an administrative appeal of the disciplinary

conviction to a facility head, and his conviction was affirmed. In a subsequent

appeal to the Director or Designee of the ODOC, his conviction was again

affirmed because “[w]ax and bleach are not authorized items to have in [a

prisoner’s] property.” Ex. G. Mr. Gooch now seeks a COA so he may appeal the

district court’s dismissal of his 28 U.S.C. § 2241 petition. 

II. DISCUSSION

We may issue a COA and entertain Mr. Gooch’s appeal only if he “has

made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To make a substantial showing, Mr. Gooch “must show that

reasonable jurists could debate whether (or, for that matter, agree that) the
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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) (internal quotation marks omitted). 

We have carefully reviewed the magistrate judge’s report and

recommendation, the district court’s order, and the entire record and brief on

appeal. For substantially the same reasons set out in the magistrate judge’s report

and recommendation, and the district court’s order addressing objections to the

report and recommendation, we conclude that Mr. Gooch has not made a

“substantial showing of the denial of a constitutional right” under 28 U.S.C. §

2253(c)(2). He asserts that he was authorized to possess the cleaning materials to

perform his prison job and that he was improperly convicted because there was no

evidence of misconduct. However, we conclude that Mr. Gooch received the due

process protections to which he was entitled under Wolff v. McDonnell, 418 U.S.

539, 564-66 (1974). Furthermore, prison officials supported his disciplinary

conviction with “some evidence,” as required by Superintendent, Mass. Corr.

Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985). Mr. Gooch admitted to

possession of the wax, and the ODOC construed the cleaning supplies found in

his cell as “chemicals” prohibited by Rule 09-3. 
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We therefore DENY Mr. Gooch’s application for a COA and DISMISS the

appeal. 

Entered for the Court, 

Robert H. Henry

Circuit Judge