## 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 2 8 U.S.C. § 2241 petition for habeas corpus. We deny his request for a COA and d ismiss this matter.

I. BACKGROUND Mr. Gooch is in the custody of the Oklahoma Departm ent of Corrections (“ODOC”) for drug-related convictions. On the morn ing of July 17, 2003, prison officials conducted a random “shakedown” of Mr. Goo ch’s cell and found “a half bottle or jar of bleech [sic], a small bottle of fl oor wax and other misc.-2-

contraband.” Ex. A. He was charged with a discipl inary offense for violation of Rule 09-3, which prohibits the “possession/introduc tion of any drug, narcotic, intoxicant, chemical, drug paraphernalia not prescr ibed 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 hea ring, 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 w as 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 authoriz ed 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 const itutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing, Mr. Goo ch “must show that reasonable jurists could debate whether (or, for th at matter, agree that) the-3-

petition should have been resolved in a different m anner 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 mark s omitted). We have carefully reviewed the magistrate judge’s r eport and recommendation, the district court’s order, and the entire record and brief on appeal. For substantially the same reasons set outin the magistrate judge’s report and recommendation, and the district court’s order addressing objections to the report and recommendation, we conclude that Mr. Goo ch has not made a “substantial showing of the denial of a constitutio nal right” under 28 U.S.C. § 2253(c)(2). He asserts that he was authorized to p ossess the cleaning materials to perform his prison job and that he was improperly c onvicted 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 bySuperintendent, 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 c leaning supplies found in his cell as “chemicals” prohibited by Rule 09-3.-4-

We therefore DENY Mr. Gooch’s application for a COAand DISMISS the appeal.

Entered for the Court,

Robert H. Henry Circuit Judge