* The case is unanimously ordered submitted without oral argument pursuant to

Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 10 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVID ROBIN WHITMORE, Petitioner - Appellant, v. STEVEN KAISER, Respondent - Appellee. No. 99-6015 (D.C. No. 98-CV-464) (Western District of Oklahoma)

ORDER AND JUDGMENT *

Before BRORBY , EBEL and LUCERO , Circuit Judges.

Petitioner David Whitmore, an inmate within the Okl ahoma state prison system, seeks a certificate of appealability to app eal the district court’s denial of his pro se 28 U.S.C. § 2254 habeas petition. Whitm ore’s habeas petition stems from a decision by the Oklahoma Department of Corre ctions to revoke 720 days of earned credits as a sanction for Whitmore’s part icipation in a prison riot. The district court denied Whitmore’s petition, which es sentially consists of due- 2 -

process claims, finding that it is procedurally barred and lacks merit. Pursuant to 28 U.S.C. § 2253(c)(2), we deny a certificate of ap pealability. Whitmore appears to argue that he was denied due process at his prison disciplinary hearing and before the district court. Specifically, Whitmore asserts that the hearing officer disregarded his evidence a nd disregarded applicable procedural rules. See Wolff v. McDonnell , 418 U.S. 539, 563-66 (1974) (identifying due process protections applicable to a prison disciplinary proceeding). He claims that prison officials abuse d their discretion, acted with bad faith and malice, lied when they accused him of this offense, and had insufficient evidence to convict him. He asserts t hat a legal assistant lied in a sworn affidavit submitted to the district court. F inally, he claims that the district court improperly deprived him of an opportunity to prove his actual innocence, denied various discovery and other motions, and hel d him to a stringent pleading requirement. We agree with the district court’s determination th at Whitmore’s claims concerning the process that he was afforded at the disciplinary hearing are procedurally barred. Whitmore failed to provide th e Oklahoma Court of Criminal Appeals with certified records necessary to supporthis claim for relief in violation of Rule 10.1(C) of the Rules of the Oklah oma Court of Criminal Appeals. Accordingly, the Oklahoma Court of Crimin al Appeals denied relief for- 3 -

Whitmore’s failure to comply with procedural rules. This is an independent and adequate state ground that bars federal habeas revi ew. See Coleman v. Thompson , 501 U.S. 722, 750 (1991). The district court correctly concluded that “[t]he Petitioner has not shown that any objective, external factor impeded his eff orts to comply with the state’s procedural rules; thus, he has not met the cause an d prejudice standard” for overcoming this procedural bar. D. Mem. Op. at 5 ( citing Coleman , 501 U.S. at 753). Whitmore is also unable to demonstrate the p otential for a fundamental miscarriage of justice so as to overcome the proced ural bar, see Murray v. Carrier , 477 U.S. 478, 495-96 (1986), because he cannot prov e his innocence of the offense alleged. The fact that he was on the telep hone until approximately 11:00 p.m. does not preclude him from having joined in th e riot thereafter. Nor does Whitmore’s telephone defense, plus his disputed ass ertion that the riot did not last beyond 11:00 p.m., demonstrate his innocence. Moreover, Whitmore’s claims lack merit. While Whit more was entitled to some due process at his prison disciplinary proceed ing, see Mitchell v. Maynard , 80 F.3d 1433, 1444-45 (10th Cir. 1996), prison disc iplinary proceedings do not implicate the full range of due process rights thatapply to a criminal prosecution. Id. at 1445. Instead, the Constitution requires only that a prisoner receive advance written notice of the charges against him, the right to call witnesses and- 4 -

present evidence if doing so does not jeopardize in stitutional safety or correction goals, and a written statement of the evidence reli ed on and the reasons for the disciplinary action. See Superintendent, Mass. Correctional Inst. v. Hill , 472 U.S. 445, 454 (1985). The revocation of good time credi ts requires only the support of “some evidence in the record.” Id. Upon review of the record, we agree with the magistrate’s conclusion, adopted by the district co urt, that Whitmore was afforded all the process he was due. We further reject Whitmore’s claim that his rights were somehow violated by introduction into the record of an affidavit by legal assistant Johnanna Oblesby. Respondents filed Oblesby’s affidavit in response to Whitmore’s assertion that Oblesby told him that the warden kne w he did not participate in the riot. In her affidavit, Oblesby disputes making su ch a statement. Contrary to Whitmore’s assertion, the district court sufficient ly inquired into Whitmore’s allegation regarding this statement by directing re spondents to respond. Moreover, the district court did not violate Whitmo re’s constitutional rights by crediting this affidavit rather than Whitmore’s all egation. Whitmore’s suggestion that the district court violated his due process or other rights in any other respect during these proc eedings lacks merit. The district court acted within its discretion when it adopted the magistrate’s conclusion that Whitmore was afforded the procedura l protections to which he is- 5 -

entitled. The district court did not violate Whitm ore’s constitutional rights by denying his discovery requests and other motions inlight of its determination that Whitmore’s claims are procedurally barred and lack merit. Nor does the record support a conclusion that the district court held p etitioner to an improperly stringent pleading requirement. We conclude that Whitmore has not made a substantia l showing of the denial of a constitutional right and deny a certifi cate of appealability. See 28 U.S.C. § 2253(c)(2); Barefoot v. Estelle , 463 U.S. 880 (1983); Fed. R. App. P. 22. We deny leave to proceed in forma pauperis. This appeal is DISMISSED . The mandate shall issue forthwith.
ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge