UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ ANTONE LAMANDINGO KNOX, Petitioner - Appellant,

v. TOMMY SHARP, Warden, Respondent - Appellee. No. 20-7014 (D.C. No. 6:19-CV -00050-RAW-KEW) (E.D. Okla.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before LUCERO , BACHARACH , and MORITZ , Circuit Judges.

________________ _________________ Pro se petitioner Antone Kn ox seeks a certificate of appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2241 petition. We deny a COA and dismiss the appeal. I Knox, a state prisoner in the custody of the Oklahoma Department of Corrections (“DOC”), is serving a five-yea r term of imprisonment for possession of contraband in a state pena l institution and a two-year term of imprisonment for assault on a DOC employee. In a prison di sciplinary proceeding, he was found guilty

* This order is not binding precedent, ex cept under the doctrines of law of the case, res judicata, and colla teral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 25, 2020 Christopher M. Wolpert Clerk of Court2 of “making false allegati ons.” The sanction imposed was “120 visitation,” “120 telephone,” and “120 canteen.” Knox filed a § 2241 petition asserting th at he was wrongfully convicted of making a false complaint pursuan t to the Prison Rape Elimination Act and that he is being illegally restrained. The district cour t denied the petition for several reasons: Knox had not shown that hi s conviction resulted in a lo ss of earned credits, he had not exhausted state court remedies, and he fa iled to make a substa ntial showing of the denial of a constitutional right . The district court declin ed to grant a COA. Knox now seeks a COA from this court. II Because Knox proceeds pro se , we “liberally construe his pleadings,” Requena v. Roberts, 893 F.3d 1195, 1205 (10th Cir. 2018), but “do not assume the role of advocate,” Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008) (q uotation omitted). “[A] state prisoner must obtain a COA to appeal the denial of a habeas petition, whether such petition was filed pursuant to § 2254 or § 22 41.” Montez v. McKi nna, 208 F.3d 862, 867 (10th Cir. 2000). We may issue a COA “only if the applicant has made a substantial showing of the denial of a constitutional righ t.” 28 U.S.C. § 2253(c)(2). To make this showing, Knox must demonstrate “that reasona ble jurists could debate whether (or, for that matter, agree that) the petition should have been resolv ed 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) (quotations omitted).3 “A threshold question that must be addr essed in every habeas case is that of exhaustion.” Harris v. Champi on, 15 F.3d 1538, 1554 (10t h Cir. 1994). Although “no statutory exhaustion requi rement applies to petitions filed pursuant to § 2241, it is wellsettled that claims raised in § 2241 petitions must be exhaus ted before a federal court will hear them.” Burger v. Scott, 317 F.3d 1133, 1144 n.8 (10th Cir. 2003). The district court dismissed Knox’s petition becaus e although he had filed an ac tion in state court relating to the allegedly wrongful disciplinary action, the Oklahoma Court of Criminal Appeals (“OCCA”) had not issued a ruling in that ca se by the time the district court made its ruling in this case. We take judicial notice of the OCCA’s subsequent denial of Knox’s requested relief. See Knox v. Fudge , No. REC-2019-388 (Okla. Crim. App. Apr. 9, 2020), https://www.oscn.net/dockets/GetCaseInfo rmation.aspx?db=appellate&number=REC2019-388&cmid=126338; Green v. Nottingha m, 90 F.3d 415, 418 (10th Cir. 1996) (“[F]ederal courts may take notic e of judicial proceedings in other courts if they have a direct relation to matters at issue.” (citing St . Louis Baptist Temple, Inc. v. F.D.I.C., 605 F.2d 1169, 1172 (10th Cir. 1979))). Although Knox had not exhausted state court remedies when he filed his habeas petition, we may consider the merits of his claim because he has since done so. See Osborn v. Shillinger, 861 F.2d 612, 616 (10th Cir. 1988) (“An appellate court may give relief if state remedies are e xhausted by the time it acts, even if those remedies were not ex hausted when the habe as corpus petition was filed.” (alteration and quotation omitted)), abr ogated on other grounds by Harris v. Reed,4 489 U.S. 255 (1989), as recognized by Shafer v. Stratton, 906 F.2d 506, 509 (10th Cir. 1990). We turn to the merits of Knox’s claim. “Habeas co rpus review is available under § 2241 if one is ‘in cust ody in violation of the Cons titution or laws or treaties of the United States.’” McIntosh v. U. S. Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997) (quoting § 2241(c)(3)). “[A] § 2241 attack on the execution of a sentence may challenge . . . deprivation of good-tim e credits and other prison disciplinary matters.” Id.; see also Brown v. Smith , 828 F.2d 1493, 1495 (10t h Cir. 1987). In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court held that prisoners are entitled to due process before being subj ected to either an “atypical, significant deprivation in which a State might concei vably create a liberty interest” or a disciplinary action that “inevitably affect[s] the duration of his sentence.” Id. at 486, 487. Knox has not shown that the DOC vi olated his constitutional rights in connection with his disciplinar y proceedings. He does not contend that a due process liberty interest is im plicated by the loss of visitation, telephone, or canteen privileges. Nor do such sanctions inevitably affect the duration of a prison se ntence. Moreover, as the district court noted , Knox did not “claim his convi ction resulted in a loss of earned credits.” Although hi s opening brief on appeal me ntions revocation of earned credits, he did not raise this issue below. Accordingly, we do not consider it. See United States v. Viera, 674 F.3d 1214, 1 220 (10th Cir. 2012). We conclude that Knox has not made a substantial showing of the denial of a constitutional right.5 III For the foregoing reasons, we DENY a COA and DISMISS the appeal.

Entered for the Court

Carlos F. Lucero Circuit Judge