*This order and judgment is not binding precedent, except under the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.

1The Petition was filed on a form for 28 U.S.C. § 2254 petitions. However,

since Petitioner is challenging the execution of his sentence and not the

conviction and sentence itself, his Petition is construed as a Petition for a Writ of

Habeas Corpus pursuant to 28 U.S.C. § 2241. See McIntosh v. United States

(continued...)

F I L E D

United States Court of Appeals

Tenth Circuit

APR 10 2003

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARVIN HAMMONS,

Petitioner-Appellant,

v.

RON WARD, Warden,

Respondent-Appellee.

No. 02-6326

(D.C. No. 02-CV-543-F)

(W.D. Okla.)

 

ORDER AND JUDGMENT*

Before TACHA, Chief Circuit Judge, McKAY and PORFILIO, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

This is a pro se 28 U.S.C. § 2241 state prisoner appeal.1 Mr. Hammons, a
1

(...continued)

Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997).

-2-

prisoner incarcerated at the Great Plains Correctional Facility in Oklahoma, was

charged with disciplinary misconduct for obtaining money from his inmate

mandatory savings account under false pretenses. Mr. Hammons was found guilty

of the offense and disciplined. After exhausting his administrative remedies, Mr.

Hammons filed a petition in the district court alleging that there was no evidence

to support the disciplinary conviction. The district court denied the petition, and

Mr. Hammons applied to this court for a certificate of appealability.

In order for this court to grant a certificate of appealability, Petitioner must

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

2253(c)(2). To do so, Petitioner 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.” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (citations and internal quotations omitted).

We will not disturb disciplinary actions by prison administrators so long as

there is “some evidence” to support the action. Superintendent, Mass. Corr. Inst.

v. Hill, 472 U.S. 445, 455 (1985). Such a review does not require “examination

of the entire record, independent assessment of the credibility of witnesses, or
-3-

weighing of the evidence.” Id. We must merely determine “whether there is any

evidence in the record that could support the conclusion reached by the

disciplinary board.” Id. at 455-56.

Oklahoma law provides that funds from an inmate’s mandatory savings

“account may be used by the inmate for fees or costs in filing a civil or criminal

action . . . .” Okla. Stat. tit. 57, § 549(A)(5) (2003). The record indicates that

Mr. Hammons requested that a check for $400.00 be issued from his account to

pay fees charged by the Court Clerk for the District Court of Oklahoma County

for photocopying various documents in connection with Mr. Hammons’ state

court criminal proceeding. Such costs are not associated with the filing of a civil

or criminal action. Accordingly, we find that the disciplinary action was

supported by “some evidence.”

We have carefully reviewed Mr. Hammons’ brief, the district court’s

disposition, the magistrate judge’s report and recommendation, and the record on

appeal. Nothing in the facts, the record on appeal, or Mr. Hammons’ brief raises

an issue which meets our standards for the grant of a certificate of appealability. 

Therefore, for substantially the same reasons as set forth by the district court in

its Order of October 4, 2002, we cannot say “that reasonable jurists could debate

whether (or, for that matter, agree that) the petition should have been resolved in

a different manner.” Id. 
-4-

We DENY Petitioner’s request for a certificate of appealability and

DISMISS the appeal. Appellant’s motion to proceed in forma pauperis on appeal

is GRANTED. 

Entered for the Court

Monroe G. McKay

Circuit Judge