FILED

United States Court of Appeals

Tenth Circuit

January 31, 2011

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JERRY L. THOMAS,

Petitioner - Appellant,

v.

DAVID C. MILLER, Warden,

Respondent - Appellee.

No. 10-6193

(W.D. Oklahoma)

(D.C. No. 5:10-CV-00110-W)

ORDER DENYING CERTIFICATE

OF APPEALABILITY

Before MURPHY, GORSUCH, and HOLMES, Circuit Judges. 

Jerry L. Thomas, 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 Thomas’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 Thomas has not made a “substantial showing of the denial of a

constitutional right,” this court denies his request for a COA and dismisses this
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Because Thomas has not made a reasoned, nonfrivolous argument, we

deny his request to proceed on appeal without prepayment of fees. 28 U.S.C.

§ 1915(e)(2)(B)(i); DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). 

Thomas shall, therefore, make full and immediate payment of the appellate filing

fee.

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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”).1

In his § 2241 petition, Thomas challenged, nominally on due process

grounds, the results of prison disciplinary proceedings which resulted in the loss

of earned good-time credits. The matter was referred to a magistrate judge,

pursuant to 28 U.S.C. § 636(b)(1)(B), for initial proceedings. In a comprehensive

report and recommendation, the magistrate judge concluded Thomas’s claims

should be denied because they are not cognizable in a § 2241 habeas corpus

proceeding. In particular, the magistrate judge noted Thomas’s assertion

Oklahoma state courts misapplied Oklahoma state law did not raise a valid claim

of a violation of the United States Constitution. Estelle v. McGuire, 502 U.S. 62,

67-68 (1991) (“[I]t is not the province of a federal habeas court to reexamine

state-court determinations on state-law questions. In conducting habeas review, a

federal court is limited to deciding whether a conviction violated the Constitution,

laws, or treaties of the United States.”). Furthermore, the magistrate judge

concluded that the motivations underlying the bringing of a misconduct complaint

against Thomas did not bear on the dispositive legal question of whether

Thomas’s disciplinary proceedings ultimately complied with the dictates of Wolff
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v. McDonnell, 418 U.S. 539, 556 (1974) and Superintendent v. Hill, 472 U.S. 445,

454 (1985). Because Thomas’s prison disciplinary proceedings undeniably

complied with Wolff and Hill, the magistrate judge concluded Thomas was not

entitled to habeas relief. Upon de novo review, the district court adopted the

magistrate judge’s report and recommendation and denied Thomas’s § 2241

petition.

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

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

must demonstrate “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 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. Thomas 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 Thomas’s appellate filings, the magistrate judge’s

report and recommendation, the district court’s order, and the entire record on
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appeal pursuant to the framework set out by the Supreme Court in Miller-El and

concludes Thomas is not entitled to a COA. The district court’s resolution of

Thomas’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,

Thomas 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 Thomas’s request for a COA and DISMISSES this

appeal.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge