PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ MICHAEL DON LEATHERWOOD, Petitioner - Appellant,

v. JOE M. ALLBAUGH, Interim Director, Oklahoma Department of Corrections, Respondent - Appellee. No. 16-6251

________________ _________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. No. 5:13-CV-01149-HE)

________________ _________________ Mark Henricksen, Henricksen & Henricksen, Lawyers, Inc ., Oklahoma City, Oklahoma, appearing for Appellant. Keeley L. Miller, Assistant A ttorney General (E. Scott Pru itt, Attorney General, and Jennifer B. Welch, Assistant Attorney Gene ral, with her on the briefs), Office of the Attorney General for the State of Oklahom a, Oklahoma City, Oklahoma, appearing for Appellee.

________________ _________________ Before HARTZ , MATHESON , and MORITZ , Circuit Judges.

________________ _________________ MATHESON , Circuit Judge.

________________ _________________ The district court denied state pris oner Michael Leatherwood’s 28 U.S.C. § 2241 habeas app lication. It granted him a certi ficate of appealability (“COA”) on FILED United States Court of Appeals Tenth Circuit 

### June 27, 2017
Elisabeth A. Shumaker Clerk of Court- 2 - his claim that revocation of his suspe nded sentence for violation of a probation condition violated his procedur al and substantive due process rights. It denied a COA on his other claims. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we affirm the district court’s denial of his due pr ocess claim. We also deny his request for additional COAs and his motion to supplement the record.
I. BACKGROUND
A. State Court Proceedings
1. Sentence In 2009, Mr. Leatherwood pled guilty in Oklahoma state court to two counts of Rape in the First Degree and four c ounts of Rape in the First Degree by Instrumentation. Judge Ke nneth Watson sentenced him to six concurrent 20-year terms and suspended the sentence except for 90 days in jail. Upon completion of his jail time, Mr. L eatherwood was supposed to serve “the remainder of [his] senten ce(s) . . . under the terms set forth in the probation guidelines,” including a list of Special Probation Conditions for Sex Offenders (“Special Probation Conditions”). Record on Appeal (“ROA”) at 1700, 1703. He would therefore serve a suspended sent ence and also be under probationary supervision. See Okla. Stat. tit. 22 § 991(a)(A)(1). 1

1 Okla. Stat. tit. 22 § 991a(A)(1) provides that, after a defendant is convicted of a crime, courts can “[s]uspend the execu tion of the sentence in whole or in part, with or without probation.” In addition, the court may order the defendant “at the time of sentencing or at any time during th e suspended sentence to do one or more” enumerated actions, id. § 991a(A)(1)(a)-(gg), as well as comply with “any other provision specifically ordered by the court,” id. § 991a(A)(1)(hh).- 3 - Mr. Leatherwood agreed to the Special Probation Conditions “as consideration for the imposition of a probated sentence, in whole or in part” and acknowledged that “[f]ailure to comply with a ny of these conditions may result in the revocation . . . of [his] probated sentence.” ROA at 1703. One of the Special Probation Conditi ons, Rule 17, required that Mr. Leatherwood “[n]ot date, socialize, or ente r into a romantic or sexual relationship with any person who has children under the age of eighteen (18) years present in their residence or custody at any time.” Id. Judge Watson ordered Mr. Leatherwood to report to jail on January 8, 2010.
2. First Revocation – Five Years On September 23, 2009, before the sc heduled start of Mr. Leatherwood’s jail term, the State applied to revoke his susp ended sentence, allegi ng he had violated several probation conditions. Mr. Leatherwoo d was put in jail before his revocation hearing. Judge Watson, who had imposed the original sentence, held a revocation hearing on January 8, 2010. During th e hearing, Mr. Leatherwood’s counsel stipulated to five of the alleged probation violations, including a violation of Rule 17 based on Mr. Leatherwood’s relationship with Regina Wood, the mother of two minor children. Judge Watson chastised Mr . Leatherwood for refusing to follow the rules, stating, “And now th ey put you in jail and you’re doing the same thing over there. . . . I gave you all the rope in the world and yo u hung yourself with it.” Id. at 891. Judge Watson revoked five years of Mr. Leatherw ood’s suspended sentence.- 4 - 3. Second Revocation – 15 Years On April 14, 2010, while Mr. Leathe rwood was serving his five-year prison
term, 2 the State filed a second application to revoke, al leging Mr. Leatherwood had continued to violate Rule 17 while he was incarcerated. Judge Watson recused himself. Judge Tammy Bass-LeSure pres ided over a second revocation hearing on August 3, 2010. She noted that despite J udge Watson’s admonitions “not to have any relationship . . . with a person that has ch ildren in their custody,” Mr. Leatherwood had gone to “great lengths to hide the fa ct” that he continued his relationship with Ms. Wood. Id. at 1032-33. Mr. Leatherwood ackno wledged that he “would not do anything to intentionally or willfully vi olate the conditions of my probation except for [Rule] 17 and I take responsibility for that.” Id. at 1065. “[L]ooking at the totality” of the circumstan ces, including Mr. Leatherw ood’s own statements and deceptive behavior, Judge Bass- LeSure concluded he knew he had violated Rule 17. Id. at 1033. Consequently, she revoked th e remaining 15 years of his suspended

sentence. 4. Direct Appeal and Pos t-Conviction Review Mr. Leatherwood appealed to the Oklahoma Court of Criminal Appeals (“OCCA”), raising three issues that are relevant here: (1 ) the revocation violated his procedural and substantive due process rights because (a) Ru le 17 failed to warn him that he could violate it while incarcerated, and (b) the re vocation was so arbitrary as

2 Mr. Leatherwood was originally supposed to serve his 90-day jail term in the Oklahoma County Jail. After his five-year revocation, he was transferred to Lawton Correctional Facility, a priv ate prison in Oklahoma.- 5 - to be fundamentally unfair; (2) Judge Bass- LeSure’s bias violat ed due process; and (3) cumulative error in the second revocation proceed ing required reversal. The OCCA affirmed. Mr. Leatherwood then sought post-convict ion relief, alleging: (1) ineffective assistance of counsel; (2) j udicial bias and conflict; 3 and (3) cumulative error. The state trial court denied relief , and the OCCA affirmed.
B. Federal Habeas Proceedings In October 2013, Mr. Leatherwood app lied for habeas relief under 28 U.S.C. § 2241 in the United States District Cour t for the Western District of Oklahoma. He asserted seven grounds for relie f: (1) violation of due process; (2) in sufficient evidence; (3) improper admission of evidence; (4) judici al bias; (5) judicial conflict; (6) ineffective assistance of counsel; and (7) cumulative erro r. As on direct appeal, his first claim alleged violation of pr ocedural and substantive due proce ss because (1) Rule 17 failed to warn that he could violate it while incar cerated, and (2) the revocation arbitrarily deprived him of his liberty. Mr. Leatherwoo d filed motions to supplement his application with affidavits from Justin Jo nes, the former Director of the Oklahoma Department of Corrections, and from Judge Watson. The magistrate judge recommended deni al of Mr. Leatherwood’s habeas application. Over Mr. Leatherwood’s objection, the federal district c ourt agreed. It also

3 Mr. Leatherwood added judicial conflict to his judicial bi as claim, arguing that Judge Bass-LeSure was th e target of an unrelated i nvestigation conducted by the same district attorney’s (“ D.A.”) office that had pr osecuted Mr. Leatherwood, and therefore she had a conflict of interest in his case.- 6 - denied his request for an evidentiary hearing and his motions to supplement the record. The court issued a COA on the claim alleging a violation of proced ural and substantive due process but declined any other COAs. Mr. Leatherwood filed a timely notice of app eal on his due process claim. He also requests COAs on his judicial bias/conflict 4 and cumulative error claims, and he has moved to supplement the record on appeal with an affidavit fro m Judge Watson.
II. LEGAL BACKGROUND
A. Section 2241 Challenge to Revoca tion and Standard of Review
1. 28 U.S.C. § 2241 and Revocation A habeas application under 28 U.S.C. § 2241 generally at tacks the execution of a sentence rather than its validity. See Straley v. Utah Bd. of Pardons, 582 F.3d 1208, 1213 (10th Ci r. 2009) (“[State prisoner’s] § 2241 habeas petition can only challenge the execution of his sentence, no t the validity of his conviction and the original sentence.”); Yellowbear v. Wyoming Att’y Gen. , 525 F.3d 921, 924 (10th Cir. 2008) (“Section [] 2241 is a vehicle for [a state prisoner] . . . attacking the execution of a sentence.” (citations omitted)). It chal lenges “the fact or dur ation of a prisoner’s confinement and seeks the remedy of imme diate release or a shortened period of

4 In his request for additional C OAs, Mr. Leatherwood combines his allegations of judicial bias (because Judge Bass-LeSure be lieved his initial sentence was too lenient) and judici al conflict (because Judge Bass-LeSure was ultimately under investigation) into one claim, which he labels “judicial conflict.” Aplt. Br. at 55. We refer to it as his “judicial bias/conflict” claim.- 7 - confinement.” McIntosh v. U.S. Parole Comm’n , 115 F.3d 809, 81 2 (10th Cir. 1997) (quotations omitted). A state prisoner’s challenge to the revocation of a suspended sentence is properly brought unde r § 2241 based on our circuit precedent. Montez v. McKinna , 208 F.3d 862, 865 (10th Cir. 2000) (stating that a hab eas application challenging where a state sentence will be served “seems to fit better under the rubric of § 2241”); Stoltz v. Sanders , Nos. 00-6188 & 00-6288, 242 F.3d 390, 2000 WL 1730894, at *1 (10th Cir. 2000) (unpublished table de cision) (“To the extent [petitioner] is challenging the revocation of his [suspended] senten ce, we construe his petition as filed under 28 U.S. C. § 2241 because it cha llenges the execution of his sentence, rather th an its validity.”). 5 By contrast, a state prisoner’s federal habeas challenge to the validity of an underlying c onviction or sentence must typically be brought under § 2254. Montez , 208 F.3d at 865. Mr. Leatherwood challenge s the execution of his sentence—whether he will serve 15 years in prison or as a suspended sentence. See id . He does not challenge the validity of his rape conviction or his se ntence of six concurre nt 20-year terms. He therefore properly brought a § 2241 habeas application. 6

5 Although not precedential, we find th e reasoning of the unpublished cases cited in this opinion instructive. See 10th Cir. R. 32.1 (“U npublished decisions are not precedential, but may be cited for their persuasive value.”); see also Fed. R. App. P. 32.1.

6 The majority of our sibling circuits have held that a state prisoner’s collateral challenge to the execution of a sent ence should be brought under § 2254. See In re Wright , 826 F.3d 774, 778 (4th Cir. 2016) (collecting cases); see also Ochoa v.- 8 - 2. Standard of Review “When reviewing the denial of a habeas petition unde r § 2241, we review the district court’s legal c onclusions de novo and accept its factual fi ndings unless clearly erroneous.” al-Marri v. Davis , 714 F.3d 1183, 1186 (10th Cir. 2013). In doing so, we employ the same deference the district court must apply in reviewing the state proceedings. Curtis v. Chester , 626 F.3d 540, 544 (1 0th Cir. 2010). The standard of federal habeas review of state court decisions depends on which habeas statute applie s. For § 2254 habeas app lications, relief may not be granted unless the state court’s decisi on “was contrary to, or involved an unreasonable application of, cl early established Federal la w, as determined by the Supreme Court of the United States,” 28 U. S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in li ght of the evidence presented in the State court proceeding,” id. § 2254(d)(2). Congress impos ed these standards when it
Workman , 669 F.3d 1130, 1148 (10th Cir. 2012) (Hartz, J., c oncurring) (questioning, in light of Panetti v. Quarterman , 551 U.S. 930 (2007), whet her a state prisoner’s challenge to execution of sentence should be under § 2241 rather than § 2254). But “[w]e are bound by the precedent of prior panels absent en banc reconsideration or a superseding cont rary decision by the Supreme Court.” Barnes v. United States , 776 F.3d 1134, 1147 (10th Cir. 2015) (quotations and emphasis omitted) (refusing to overrule our preceden t because the Supreme Court authority was not “so indisputable and pellucid . . . that it constitute s intervening (i.e., superseding) law that would permit us” to reach a contra ry holding “without en banc consideration”); see Auraria Student Hous. at the Regency, LLC v. Campus Vill. Apartments, LLC , 843 F.3d 1225, 1242 (10th Cir. 2016) (concluding the Supreme Court had “adopted reasoning th at require[d] a different result” from this court’s precedent). Panetti involved a § 2254 habeas petition. 551 U.S. at 937. It neither mentioned § 2241 applications nor doe s its reasoning “indi sputabl[y] and pellucid[ly]” require a departure from Montez

. See Barnes , 776 F.3d at 1147. We cannot say that Panetti questions our precedent to the extent it constitutes a superseding decision.- 9 - enacted the Antiterrorism a nd Effective Death Penalty Act (“AEDPA”), and it intended they be “dif ficult to meet.” Harrington v. Richter , 562 U.S. 86, 102 (2011). The standard of review for a § 2241 application is less demanding. In Walck v. Edmondson , we stated, “The deferential standard of review contained within § 2254 is . . . only properly invoked when an individual in state custody collaterally attacks the validity of a state conviction and/or sentence.” 472 F.3d 1227, 1234 (10th Cir. 2007). Accordingly, “we review habeas claims made pursuant to § 2241 . . . de
novo.” Id. at 1235; see also Phillips v. Court of Common Pleas, Hamilton Cty. , 668 F.3d 804, 810 (6th Cir. 2012) (“[H]ab eas petitions governed by § 2241 are not subject to the heightened sta ndards contained in § 2254(d)”); Martinez v. Caldwell , 644 F.3d 238, 242 (5th Cir. 2011) (“The deferential standa rd afforded to state court decisions, which is specifically articulated in § 2254, is not included in the text of § 2241.”). Thus, we review the state c ourt’s denial of Mr. Leatherwood’s § 2241 application de novo. See Walck , 472 F.3d at 1235.
B. Scope of Habeas Review: State Law and Federal Due Process Federal habeas relief is not availa ble to correct state law errors. Estelle v.
McGuire , 502 U.S. 62, 67-68 (1991); Eizember v. Trammell , 803 F.3d 1129, 1145 (10th Cir. 2015). “[T]his c ourt’s role on collateral review isn’t to second-guess state courts about the application of their ow n laws but to vindicat e federal rights.” Eizember , 803 F.3d at 1145. A prisoner may s eek relief, however, if a state law decision is so fundamentally unfair that it implicates fede ral due process. Estelle , 502 U.S. at 67-68, 75; Hicks v. City of Watonga , 942 F.3d 737, 746 n.4 (10th Cir.- 10 - 1991). “[W]hether a state has afforded sufficient process to protect a [federal] constitutional right is not a question of state law.” Guttman v. Khalsa , 669 F.3d 1101, 1115 (10th Cir. 2012) (quotations omitted). A habeas applicant cannot transform a state law claim in to a federal one merely by attaching a due process label. See Gryger v. Burke , 334 U.S. 728, 731 (1948). Otherwise, “every erroneous d ecision by a state court on state law would come [to federal cour t] as a federal cons titutional question.” Id. ; see Onyx Props. LLC v. Bd. of Cty. Comm’rs , 838 F.3d 1039, 1044 (10th Cir. 2016); Johnson v. Rosemeyer , 117 F.3d 104, 110 (3d Cir. 1997) (“Errors of state law cannot be repackaged as federal errors simply by citing the Due Pro cess Clause.”). Rather, the habeas applicant should “include refere nce to a specific federal constitutional guarantee, as well as a stat ement of the facts that en title [him] to relief.” Gray v. Netherland , 518 U.S. 152, 162-63 (1996); Perruquet v. Briley , 390 F.3d 505, 512 (7th Cir. 2004) (explaining the applican t must “draw[] enoug h of a connection” between the right to due process and the se ntencing court’s allege d errors “to render his claim cognizable on habeas review”). Examples of state la w decisions that may violate due process include erroneous jury instructions 7 and improper admission or

7 See, e.g. , Turrentine v. Mullin , 390 F.3d 1181, 1191- 94 (10th. Cir. 2004) (federal habeas relief granted where jury instruction error ro se to the level of federal due process violation); see also Jackson v. Edwards , 404 F.3d 612, 624-28 (2d Cir. 2005) (same); Sanders v. Cotton , 398 F.3d 572, 583 (7th Cir. 2005) (same); Cockerham v. Cain , 283 F.3d 657, 662-63 (5 th Cir. 2002) (same).- 11 - exclusion of evidence. 8 See Brian R. Means, Postconviction Remedies , Ch. 41 (2016 ed.). The State contends that Mr. Leatherwood raises only a questi on of state law: whether his suspended sentence could be revoked under Oklahoma law for a violation of Rule 17 while incarcerated. But Mr. Leatherwood’s habeas application alleged: (1) “Rule 17 failed to give fair warning that [he] could violate the rule” even though he was incarcerated, Dist. Ct. Doc. 2 at 48; and (2) the district court’s enforcement of a probation condition (i.e ., Rule 17) during his incarceration “arbitrarily deprived him of his liberty and constituted a denial of his right to substantive due process,” id. at 28. The foregoing ar guments go beyond labeling a state claim as a due process claim by referencing the “sp ecific federal constitutional guarantee” and the “statement of the fact s” that Mr. Leatherwood contends warrant relief. See Gray , 518 U.S. at 162-63. We thus pro ceed to consider th e merits of his claim.
C. Due Process Protections for Revoca tion of a Suspended Sentence Mr. Leatherwood’s due process claim on appeal includes his (1) procedural due process claim alleging lack of fair warning, and (2) substantive due process claim

8 See, e.g. , Spears v. Mullin , 343 F.3d 1215, 1227- 28 (10th Cir. 2003) (granting habeas relief on the ground that admission of photographs of victims so infected the sentencing proceed ing with unfairness as to render the imposition of the death penalty a due process violation); see also Perruquet , 390 F.3d at 512 (petitioner drew sufficient c onnection between his right to due process and the trial court’s alleged evidentiary a nd instructional errors to render his claim cognizable on habeas review).- 12 - alleging arbitrary government action. We provide legal background information below.
1. Procedural Due Process Procedural due process protections a pply to the revocation of a suspended

sentence. See United States v. Ferguson , 624 F.2d 81, 83 (9th Cir. 1980) (holding revocation of suspended sentence violat ed due process when court refused to consider mitigating circumstances); Bumgarner v. Middleton , No. 94-7003, 54 F.3d 787, 1995 WL 275718, *1 (10th Cir. 1995) (unpublished table ca se) (“Requirements of due process with regard to revocation of a suspended sentence ar e . . . not as broad as those provided a defendant in a criminal trial.”). These protections are the same as those afforded to revocation of probati on, parole, or supe rvised release. See Gagnon v. Scarpelli , 411 U.S. 778, 786 (1973); United States v. Gallo , 20 F.3d 7, 11 (1st Cir. 1994); Bumgarner , 1995 WL 275718, at *1. 9 We therefore rely on cases about revocation of probation, parole , and supervised release in analyzing the due process issue here. One of the due process protections is th e void-for-vagueness do ctrine. “It is a basic principle of due process that an enactment is void fo r vagueness if its

9 See also Harper v. Young , 64 F.3d 563 (10th Cir. 1995). In Harper , this court analyzed an Oklahoma pre-parole program that releas ed prisoners from confinement and allowed them to live and wo rk in society under strict supervision. Id. at 564. We held that “program participa tion [wa]s sufficiently si milar to parole or probation to merit protection by th e Due Process Clause itself,” id. at 565, identifying the “dispositive characteristic ” indicating the attachment of due process as when “release from incarcerati on” is at stake, id. at 566.- 13 - prohibitions are not clearly defined.” Grayned v. City of Rockford , 408 U.S. 104, 108 (1972) (explaining that “law s [must] give [a] person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly”). Courts—including this one—hav e applied this doctrine in the revocation context. See, e.g. , United States v. Muñoz , 812 F.3d 809, 818 (10th Cir. 2016) (supervised release condition); United States v. Jordan , 890 F.2d 247, 25 5 (10th Cir. 1989) (probation condition). 10
Mr. Leatherwood labels his cl aim as a vagueness challenge, see Aplt. Br. at 37 (“[Rule 17] w[as] unconstitutionally vague”), but he does not argue that the language of Rule 17 itself is impermissibly vague. Instead, he argues he lacked fair warning— from any source—about the circumstances unde r which Rule 17 could be enforced. See id. at 39. Courts have recognized such a due process fair warning argument in the revocation context. See, e.g. , Gallo , 20 F.3d at 11.
In Gallo , a probationer claimed he lacked fair warning that he could violate his probation by refusing to submit to inpa tient medical care when his probation condition required him to s ubmit to care “upon his release from i[n]patient hospitalization[.]” Id. at 9, 12 (emphasis added). The First Circuit found the probationer had adequate warning base d on, among other things, the probation

10 See also Farrell v. Burke , 449 F.3d 470, 476 (2d Cir. 2006) (applying vagueness doctrine in case involving revoc ation due to parole violation); United States v. Loy , 237 F.3d 251, 262 (3d Cir. 2001) (explaining the “same [vagueness] principles” that apply to st atutes “apply to a condition of supervised release”); Green v. Abrams , 984 F.2d 41, 47 (2d Cir. 1993) (hol ding probation cond ition was not “so vague as to deprive [defe ndant] of due process”).- 14 - officer’s and the court’s “r epeated[] expla[nations]” th at the probationer’s conduct risked revocation. Id. at 13. Similarly, in Green v. Abrams , the Second Circuit rejected a fair warning challenge to a pr obation condition, holding that although the written probation condition “did not designate a particular time for payment,” the probation officer’s “constant urging to pay the fine shoul d have put [the defendant] on notice” that the probation condition require d “immediate attemp ts at payment.” 984 F.2d 41, 46-47 (2d Cir. 1993). Courts generally look to the list of probation conditio ns to determine whether a defendant had adequate notice of proscribed activities. See, e.g. , United States v.
Grant , 816 F.2d 440, 442 (9th Cir. 1987). “Of course, where the warning is not contained in a formal [probati on] condition, the record must be closely scrutinized to determine whether the defendant did, in fact, receive the requisite warning.” Id. (quotations omitted). In this regard, “the inquiry into fa ir warning is not necessarily confined to the four corner s of the probation order.” Gallo , 20 F.3d at 13. “The meaning of a probation order may be illumina ted by the judge’s statements . . . or other events, any or all of which may . . . aid[] the court to determine whether a probationer has been forewarned . . . .” Id.
2. Substantive Due Process As relevant to Mr. Leatherwood’s arguments on appeal, the Due Process Clause also imposes “substa ntive limits on the revocati on of [] conditional liberty
. . . .” Black v. Romano , 471 U.S. 606, 610 (1985); see, e.g. , Bearden v. Georgia , 461 U.S. 660, 666 (1983) (r ecognizing substantive limit on the automatic revocation- 15 - of probation where an indigent defe ndant is unable to pay a fine); Douglas v. Buder , 412 U.S. 430, 432 (1973) (recognizing substantive limit on revocation of probation absent evidence the probationer violated probation). A revocation violates due process when it is “fundament ally unfair or arbitrary.” Bearden, 461 U.S. at 666; see Cummings v. Sirmons , 506 F.3d 1211, 12 37 (10th Cir. 2007) (“[I]n rare circumstances, a determination of state law can be so arbitrary or capricious as to constitute an independent due process violation.” (alterati ons and quotations omitted)). “[T]he deprivati on occasioned by the state’s fa ilure to follow its own law must be arbitrary in the constitutional sens e; that is, it must shock the judicial conscience.” Aycox v. Lytle , 196 F.3d 1174, 1179-80 (10th Cir. 1999) (quotations omitted). 11
D. Analysis As the following analysis shows, Mr. Leatherwood’s procedural and substantive due process arguments fa il for much the same reasons. 1. Mr. Leatherwood’s Procedural Due Process Argument Fails Mr. Leatherwood’s procedural due pr ocess/fair warning argument does not challenge the content of Rule 17 but rath er its scope. Under the section of his opening brief titled “The Sp ecial Probation Conditions . . . were unconstitutionally

11 Substantive due process protects an individual’s fundamental liberty interests and also guards ag ainst the arbitrary exercise of governmental power that shocks the conscience. Seegmiller v. LaVerkin City , 528 F.3d 762, 767 (10th Cir. 2008); s ee Chavez v. Martinez , 538 U.S. 760, 787 (2003) (Stevens, J., concurring in part and dissenting in part). Mr. Leat herwood’s argument appears limited to the latter category.- 16 - vague,” he contends Rule 17 did not provide fair warning that his suspended sentence could be revoked for violating the rule when he was incarcerated. Aplt. Br. at 37-38. He further argues that no other source—not his probation documents, the revocation hearing, Oklahoma law, or othe rwise—provided fair warning. Id. at 39 (contending “Mr. Leatherwood received no notice whatso ever from any source that [Rule 17] would apply while in prison”). 12 Because Mr. Leatherwoo d had ample warning, his procedural due process claim fails.

a. Mr. Leatherwood had fair wa rning that Rule 17 applie d while he was in prison Mr. Leatherwood had fair warning regard ing the consequences of engaging in a relationship with Ms. Wood based on Judge Watson’s statements during the January 8, 2010 revocation hearing. See Maynard v. Cartwright , 486 U.S. 356, 361 (1988) (“Objections to vagueness under the Due Process Clause re st on the lack of notice, and hence may be overcome in a ny specific case wher e reasonable persons

12 Mr. Leatherwood argues Rule 17 is void for vagueness because it conflicts with another rule in his Special Probation Conditions. We fail to see how any conflict would render Rule 17 it self unconstitutionally vague . He does not argue that Rule 17 itself is vague such that a person of ordinary intelligence would not know what conduct was prohibited by the condition. He also states that Rule 17 is “constitu tionally overly-broad, ” Aplt. Br. at 50, but he fails to establish the overbread th doctrine applies in this context, see Members of City Council of Los Angeles v. Taxpayers for Vincent , 466 U.S. 789, 801 (1984) (“[T]here must be a realistic danger th at the statute itse lf will significantly compromise recognized First Amendment prot ections of parties not before the Court for it to be facia lly challenged on overbreadth grounds.”); Faustin v. City & Cty. of Denver, Colorado , 268 F.3d 942, 948-49 (10th Cir. 2001). Even if the overbreadth doctrine would apply here, Mr. Leatherw ood’s argument—to the extent he makes one—is inadequately briefed. See United States v. Cooper , 654 F.3d 1104, 1128 (10th Cir. 2011) (“It is well-settled th at arguments inadequa tely briefed in the opening brief are waived.” (quotations omitted)).- 17 - would know that their conduct is at risk.”); Gallo , 20 F.3d at 12 (“[T]he fair warning doctrine does not provide a safe harbor for probationers who choose to ignore the obvious.”). The judge informed Mr. Leatherwood that continuing his relationship with Ms. Wood while incarcerated could result in further revocation of his suspended sentence: Good lawyering . . . convince d me [to impose the original suspended sentence]. . . . And now they put yo u in jail and you’re doing the same thing over there. . . . And you may not even be a threat but the law sa ys that as a sex offender you cannot have a relationship w ith a person who has minor children. . . . I gave you all the rope in the world and you hung yourself with it. ROA at 1616-17 (emphasis added). The judg e told Mr. Leatherwood that he had been “doing the same thing”—that is, “hav[ing] a relationship with a person who has minor children”—after “they put [him] in ja il” awaiting his revocation hearing. Id. at 1617. These statements clearly informed Mr. Leathe rwood that maintaining such a relationship was prohibited ev en while he was incarcerated. The following additional statements fro m Judge Watson to Mr. Leatherwood reinforce this point:

 “You know, I can’t tell you how to live your life . . . . But it’s the children and that Sex Offe nder Registration Act says you can’t be around them. Now, that ’s not going to change. That is the rule.” Id. at 1616.

 “But if you’ve got some questions you better ask it now. And I hope [Ms. Wood] gets it. I mean, she’s going to have to- 18 - abandon her children, complete ly abandon her children for her to be with you.” Id. at 1618. 13 At the second revocation hearing on August 3, 2010, Mr. Leatherwood’s statements to Judge Bass-LeSure s howed he had understood the potential ramifications of his behavior yet chose to a ccept the risk and pursue the relationship:

 I’m not trying to make an excuse. I understand the Rule [17] was in place. . . . However, at the s[a]me time I would ask the Court to consider the fact th at this was a relationship that I was in well before I was ever sentenced . . . . When I was sentenced on May 18th of 2009 I could not just stop being in that relationship with the pers on that I was committed to for my future. And obviously I made the decision, Your Honor to do that. I take full responsibility[.] Id. at 1653-54.

 I would not do anything to inte ntionally or willfully violate the conditions of my probation except for Number 17 and I take responsibility for that. Id. at 1684. These statements demonstrate that Mr . Leatherwood knew that Rule 17 “was in place” when he was in prison, and he to ok “full responsibility” for violating it.

13 Judge Watson also stated: Well, you need to go and see wh at happens to people who to go the penitentiary. . . . And if that gets you on the right path, so be it. If it doesn’t, you’ll get out a nd I’ve got 15 more years to send you back when you do n’t follow the rules. ROA at 1617-18. Although this statement could be interpreted to say that further revocation of the suspended sentence c ould occur only after Mr. Leatherwood’s completion of his five years in prison, the specific passages quoted above gave warning that violating the “rul e[s]” even while he is “in ja il” would result in another revocation.- 19 - Indeed, he said he would “intentionally” a nd “willfully violate” Rule 17 to maintain his relationship with Ms. Wood. 14 Even if his probation documents did not expressly state that Rule 17 could be enforced while Mr. Leatherwood was in pris on, Judge Watson’s st atements about the impropriety of the relationship and his im position of the five-year revocation should have put Mr. Leatherwood on notice. See Gallo , 20 F.3d at 13; Green , 984 F.2d at 46-47. Yet Mr. Leatherwood continued the relationship with Ms. Wood after he was sent to prison, and he admitted at his second revocation heari ng that he knew about and was responsible for violating Rule 17 while in prison. The 15-year revocation did not violate his due proces s right to fair warning. b. Oklahoma statute did not re nder revocation unforeseeable Mr. Leatherwood argues the state court imposed an “unforeseeable application” of the probation statute in viola tion of due process. Aplt. Br. at 37. By revoking his suspended sentence for vi olation of a probation condition while incarcerated, the court, he says, effec tively held that “incarceration was the equivalent of probation.” Id. He points out that th e Oklahoma code defines

14 Ms. Wood’s testimony at Mr. Leathe rwood’s January 8, 2010 revocation hearing provides further support that Mr . Leatherwood had fair warning. She testified that she had attended Mr. Le atherwood’s sentenci ng, had dated him afterward, and that “curren tly he’s in jail but I would say that we are in a relationship.” ROA at 425. When asked w hy she “would continue to be in a dating relationship with a man that you know this judge has ordered that that shouldn’t be happening,” she responded that she thou ght Rule 17 barred Mr. Leatherwood from entering into new relationships, not c ontinuing existing ones, like theirs. Id. at 427- 28. After reading Rule 17 aloud, however , Ms. Wood acknowledged that it means she “can’t date him. Period.” Id. at 428. This exchange provides further evidence that Mr. Leatherwood, who was present fo r her testimony, had fair warning.- 20 - probation as “a procedure by which a defendant found gu ilty of a crime . . . is released by the court subject to conditions imposed by the court and subject to supervision of the Department of Correct ions.” Okla. Stat. tit. 22 § 991a(E) (emphasis added); see Aplt. Br. at 32-33. Because he was imprisoned, he argues, he could not be on probation, a nd thus conditions of proba tion like Rule 17 could not apply to him. In light of this statute, it was unforeseeable, he c ontends, that the court would enforce a Rule 17 viola tion during his incarceration. To the extent the foregoing presents a potentially viable due process argument, it lacks merit. The Oklahoma probation statut e does not tell the whole story. As noted previously, after conviction, a defendant’s sentence can in clude probation, a suspended sentence, or both. Okla. Stat. tit. 22 § 991 a(A)(1). In Mr. Leatherwood’s case, his revocation concerned his suspended sentence, not his probation. He has pointed to no Oklahoma law providing that a suspended senten ce may not be revoke d for violation of a probation condition irrespective of whether th e violation occurred when incarcerated. And even if Oklahoma law is not clear on th is point, Judge Watson gave him fair warning that having a relationship with Ms. Wood while incarcerated co uld result in revocation of his suspended sentence.

c. Oklahoma case law su pports revocation The parties dispute the impact of tw o Oklahoma cases on the due process issue. The State relies on Crowels v. State , 675 P.2d 451 (Okla. Crim. App. 1984), and Demry v. State , 986 P.2d 1145 (Okla. Crim. App. 1999), to argue that the court could revoke Mr. Leatherwood’s suspended sentence even wh ile he was incarcerated.- 21 - Aplee. Br. at 16-17. In Crowels , the OCCA held a suspe nded sentence “imposes the inherent condition that the defendant should not commit a ny felony during the period of that sentence.” 675 P.2d at 453 (affi rming the revocation of an inmate’s suspended sentence after he committe d a felony while incarcerated). In Demry , the OCCA held “a suspended sent ence for a misdemeanor contai ns the inherent condition that the person shall not commit the same misdemeanor during the period of suspension.” 986 P.2d at 1148. The State concedes Oklahoma courts have never squarely held that a probation rule can be applicable to someone who is incarcerated, see Oral Arg. 16:55-17:08, but it argues that these cases placed Mr. Leatherwood on noti ce that he was subject to revocation for violating Rule 17 while incarcerated, Aplee. Br. at 19. Mr. Leatherwood argues the cases “are wholly di stinguishable” from his case. Aplt. Br.
at 26. Although the circumstances of Mr. Leat herwood’s revocation were different from those in either Crowels or Demry , his revocation was at least a plausible extension of the general principle from thos e cases that a suspended sentence can be revoked for acts committed during incarcerati on. And as with the probation statute, Judge Watson’s warnings cured any ambiguity in the case law as fa r as fair warning is concerned.
2. Mr. Leatherwood’s Substantive Due Process Argument Fails Mr. Leatherwood argues the court’s “arbitrary disregard of Oklahoma sentencing law . . . is shocking to the j udicial conscience,” id. at 31, a substantive due- 22 - process claim. 15 But it was not fundamentally unf air or arbitrary for the State to revoke his suspended sentence for viola ting Rule 17 during incarceration. Mr. Leatherwood’s argument fails based on our previous discussion about the Oklahoma probation statute and the Oklahoma ca ses. If the statute and the cases do not support Mr. Leatherwood’s argument that he lacked fair warning, it follows that the revocation of his suspended sentence for con duct while in prison cannot be deemed arbitrary, much less fundamentally unfair. The district court, in denying his § 2241 application, said it well: “[E]ven if the stat e court’s interpretation and application of state law was incorrect, it was not obviously so or so egregious as to shock the judicial conscience in the circumst ances existing here.” Leatherwood v. Allbaugh , No. CIV-13- 1149-HE, 2016 WL 4006029, at *3 (W.D. Okla. July 25, 2016). This is particularly true in light of Oklahoma law providing that a sentencing court may order the defendant “at the time of se ntencing or at any time duri ng the suspended sentence to do one or more” enumerated ac tions, Okla. Stat. tit. 22 § 991a(A)(1)(a)-(gg), as well as comply with “any other provision specifically ordered by the court,” id. § 991a(A)(1)(hh). Mr. Leatherwood already had received a five-year revocation for continuing his relationship with Ms. Wood, including while he was in jail. The ensuing 15-year

15 Mr. Leatherwood argues that “even if Judge Watson had told [him] on January 8, 2010, that the probation rules were in effect even while he was in prison, such a statement would have been incorre ct because . . . rule s of probation do not apply during imprisonment acco rding to Oklahoma law.” Ap lt. Br. at 31. In other words, he argues that no amount of warn ing could overcome th e arbitrariness and fundamental unfairness of his 15-year revocation.- 23 - revocation for continuing the relationship wa s a heavy blow, but Mr. Leatherwood does not argue an Eighth Amendment violation and, as explained above, his substantive due process argument fails. 16
* * * * We affirm the district court’s denial of relief on Mr. Leatherwood’s § 2241 habeas application.
E. Certificates of Appealability Mr. Leatherwood seeks COAs on the issu es of (1) judicial bias/conflict and (2) cumulative erro r. We deny th ese requests. 1. COA and Standard of Review A COA is a jurisdictional prerequisite to this court’s review of a habeas application. 28 U.S.C. § 2253(c)(1)(A); Dulworth v. Jones , 496 F.3d 1133, 1135 (10th Cir. 2007). To receive a COA, the prisoner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Clark v. Oklahoma , 468 F.3d 711, 713 (10th Cir. 2006). The COA inquiry “is not coextensive with a merits analysis.” Buck v. Davis , 137 S. Ct. 759, 773 (2017). “At the COA stage, the only question is whether the applicant ha s shown that ‘jurists of reason could disagree with the district court’s resolution of his constitutional clai ms or that jurists

16 Mr. Leatherwood does not raise or ade quately address any other substantive due process concerns that this case or Rule 17 may implicate.- 24 - could conclude the issues presented are adequate to deserve encouragement to proceed further.’” Id. (quoting Miller-El v. Cockrell , 537 U.S. 322, 327 (2003)). 17
2. Judicial Bias/Conflict Mr. Leatherwood claims he was denied his due process right to an impartial tribunal. He attempts to comb ine separate claims of judici al bias and j udicial conflict into one claim. As to the judicial bias part of the claim, due process requires a “neutral and detached hearing body.” Gagnon , 411 U.S. at 786 (quotations omitted). Judicial rulings alone are almost al ways insufficient to establish bias, see Liteky v. United States , 510 U.S. 540, 555 (1994), as ar e mere “speculation, beliefs, conclusions, innuendo, suspicion, opini on, and similar non-factual matters,” United States v. Cooley , 1 F.3d 985, 993 (10th Cir. 1993). Mr. Leatherwood argues Judge Bass-LeSure was biased because she believed the initial sentence imposed by Judge Wats on was too lenient. During the second revocation hearing, Mr. Leatherwood said that “[t]he State was clearly not happy with the sentence that I r eceived from Judge Watson.” ROA at 595. Judge BassLeSure replied, “I agree.” Id. This comment, he argue s, shows bias. But Mr. Leatherwood offers nothing to support his claim other than Judge Bass-LeSure’s

17 In Henderson v. Scott , this court considered whether to grant a COA for a habeas application that s hould “probably” be consider ed under § 2241. 260 F.3d 1213, 1214 (10th Cir. 2001). We concluded the applic ant had not made the requisite “substantial showing of the denial of a constitutional right.” Id. (quoting 28 U.S.C. § 2253(c)(2)). Although we suggested th at some degree of deference should be applied to the OCCA’s determination of fede ral constitutional issu es, we did not cite § 2254(d) or engage in a § 2254(d) analysis. Applying so me degree of deference to the state court proceedings here would onl y strengthen the basis for our decision to deny the requested COAs.- 25 - statement, which provides, at most, her opinion as to th e appropriateness of Judge Watson’s original sentence. It is not a valid basis for a claim of judicial bias. See Liteky , 510 U.S. at 555; Cooley , 1 F.3d at 993-94

. Reasonable jurists could not debate the district court’ s denial of this claim, and we thus deny COA. As to judicial conflict, Mr. Leatherw ood argues the same D.A.’s office that was prosecuting his revocation was also investigating Judge Bass-LeSure, and she thus would have been inclined to side with the D.A. who was prosecuting Mr. Leatherwood and revoke Mr. Leatherw ood’s suspended sentence. Mr. Leatherwood’s conflict claim ove rstates the record eviden ce. The D.A.’s office notified Judge Bass-LeSure abou t its investigation of her five months after she had revoked the remaining 15 years of Mr. Le atherwood’s suspended sentence. Mr. Leatherwood offers nothing beyond specula tion that the judge was aware of the D.A.’s investigation into her misconduct at the time of his second revocation hearing. Nor does he offer any evidence that any su ch contemporary inve stigation may have influenced her decision. The district court properly rejected this claim, and we again deny a COA.
3. Cumulative Error Mr. Leatherwood claims that even if none of his alleged errors in isolation justify relief, “the combined effect of th e errors deprived him of due process and a fundamentally fair proceeding.” Aplt. Br. at 59. Mr. Leatherwood lacks the minimum of two errors necessary to sustain a cumula tive error claim. Hanson v.- 26 - Sherrod , 797 F.3d 810, 852 (10th Cir. 2015); Stouffer v. Trammell , 738 F.3d 1205, 1229 (10th Cir. 2013). We theref ore decline to issue a COA.
F. Motion to Supplement Mr. Leatherwood asks us to supplemen t the record with an affidavit from Judge Watson. We will not consider material outside the record that was not before the district court unless it is necessary to “truly disclo se[] what occurred in the district court.” Fed. R. App. P. 10(e)(1); United States v. Kennedy , 225 F.3d 1187, 1192 (10th Cir. 2000) (noting exceptions to Rule 10(e) are “rare”). The affidavit does not satisfy this rule. We therefore deny the mo tion to supplement.
III. CONCLUSION We affirm the district c ourt’s denial of the applica tion for habeas relief. We also deny the requests for additional COAs and the motion to supplemen t the record.16-6251, Leatherwood v. Allbaugh HARTZ, Circuit Judge, concurring: I join Judge Matheson’s opinion except in one regard, which does not affect the outcome. In my view, Mr. Leatherwood’s cha llenge to the district court’s sentence on revocation of his suspended sentence should be treated as arising under 28 U.S.C. § 2254, rather than 28 U.S.C. § 2241. This could make a difference in some future case because § 2254 requires great deference to the state court’s decision. Absent extraordinary circumstances, § 22 54 is the exclusive means for “a person in custody pursuant to th e judgment of a State court” to ch allenge in federal district court the constitutionality of the cust ody. Without any textual su pport for our position, this circuit has carved out an exce ption for challenges (which can be made under § 2241) to “execution” of the sentence, as opposed to cha llenges to the validity of the sentence. As stated in Judge Matheson’s opinion, no other circuit has recognized such an exception. I agree that we are bound by circuit precede nt. But when our precedent is in error, there is no reason to expand it unnecessar ily. And we should try to narrow our differences with the ten other regional circuits to the extent possibl e. In my view, our precedent hardly requires us to say that this case involves execution rather than validity of a sentence. We have not defined what “execution” of the sentence is. And it is no stretch to say that what Mr. Leatherw ood is doing here is challenging the validity of the sentence imposed on revocation of the suspended sentence.