* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### JAN 23 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

BRYAN R. RAMER,

Petitioner-Appellant,

v. RITA MAXWELL,

Respondent-Appellee. No. 00-5110 (D.C. No. 97-CV-383-B) (N.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL , KELLY , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is 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). T he case is therefore ordered submitted without oral argument. Petitioner Bryan R. Ramer seeks a certificate of ap pealability (COA) permitting him to appeal the district court’s orderdenying relief on his petition1 No state charges of escape were filed. -2- for a writ of habeas corpus. Having determined that Mr. Ramer has failed to make “a substantial showing of the denial of a cons titutional right,” as required by 28 U.S.C. § 2253(c)(2), we deny his request and dismiss the appeal. In 1978, Mr. Ramer was convicted in state court of kidnapping and armed robbery. After accepting his guilty plea, the court sentenced Mr. Ramer to two ten-year terms on the kidnapping charges and two tw enty-five year sentences on the armed robbery charges, to run concurrently. In 1983, Mr. Ramer escaped from prison by not returning from a pass. He was apprehended the next day following a “shoot out” with New Mexico law enforce ment officers. He remained in jail in New Mexico until 1992 serving the result ing sentences. In 1984, Oklahoma placed a detainer on him. Thus, upon serv ice of the New Mexico sentences, Mr. Ramer was returned to Oklahoma. When Mr. Ramer returned to Oklahoma, a prison misco nduct report was served on him charging him with escape. 1 A hearing was held and Mr. Ramer was found guilty of escape. Consequently, all his earn ed good time credits were revoked. Mr. Ramer then commenced this habeas action. In hi s complaint, he alleged he was denied due process because he did no t receive adequate notice of the impending administrative charges stemming from his escape and he was-3-

denied an impartial tribunal at the hearing on thos e charges. Mr. Ramer also alleged his sentence has been increased due to the ex post facto application of various new laws. He stated when he was sentenced, Oklahoma awarded good time credits to inmates who donated blood. Those c redits were later discontinued and Mr. Ramer alleged he was denied credits he othe rwise could have received had he been permitted to donate blood and had the l aw not changed. Mr. Ramer also alleged that at the time of his 1978 convictio n, any credits lost due to misconduct reports were to be restored after six mo nths of clear conduct, while currently no inmate convicted of a violent crime ca n have his credits restored. Mr. Ramer noted that, at the time he was sentenced, he would have been eligible for a public works program if he had not had an esc ape on his record for the past ten years counting from the date of the escape. Cu rrent policy counts the ten years from the date the inmate is served with the m isconduct report, in his case approximately nine years after the escape. Finally , Mr. Ramer alleged he was not given credit for the nine days he was incarcerated by the transport company when he was transferred back to the Oklahoma prison syst em and he was erroneously sent to a maximum security unit where he was not pe rmitted to work and earn good time credits. Mr. Ramer concluded that the Ok lahoma Department of Corrections (ODOC) had refused to properly administ er his sentence and to properly credit his good time credits.-4-

The district court construed Mr. Ramer’s complaint as being filed under 28 U.S.C. § 2254 and dismissed all the claims except two for failur e to exhaust. The case continued on Mr. Ramer’s claims that his due p rocess rights had been violated because he did not receive adequate notice of the pending escape charges and had been denied an impartial tribunal, and thathe had been subjected to ex post facto laws because his sentence had been incre ased when his earned credits were totally revoked and credits were denied for do nating blood. The district court determined that no violations had occurred an d denied relief. On appeal, Mr. Ramer argues that he did not get ade quate notice that Oklahoma was planning to charge him with escape upo n his return to the state. He contends that the doctrine of latches prevents O klahoma from prosecuting the misconduct report. Mr. Ramer also asserts that the hearing committee was biased because it refused to let him present his defense. Mr. Ramer also raises several ex post facto issues claiming the ODOC (1) increase d the number of earned credits that could be revoked for a rule violation after he committed the crimes of which he was convicted, but before he violated the rules and (2) eliminated his ability to earn good time credits by donating blood

. First, we must examine whether this action is prope rly considered as one taken pursuant to § 2254 or § 2241. Habeas review is available under § 224 1 when an inmate seeks to attack the execution of a s entence, rather than to-5-

collaterally attack the validity of a conviction an d sentence, an action properly brought pursuant to § 2254. McIntosh v. United States Parole Comm’n , 115 F.3d 809, 811 (10th Cir. 1997). “[A] § 2241 action challenging prison disciplinary proceedings, such as the deprivation of good-time c redits, . . . is challenging an action affecting the fact or duration of the petitioner’s custody.” Id. at 812. Thus, Mr. Ramer’s petition is more properly constru ed as having been brought under § 2241. A state prisoner, such as Mr. Ramer, “must obtain aCOA to appeal the denial of a habeas petition, whether such petition was filed pursuant to § 2254 or § 2241, whenever ‘the detention complained of [in t he petition] arises out of process issued by a State court.’” Montez v. McKinna , 208 F.3d 862, 867 (10th Cir. 2000) (quoting § 2253(c)(1)(A)). To obtain a COA, a habeas petitioner must make “a substantial showing of the denial of a cons titutional right [which] includes showing that reasonable jurists could debate whether . . . 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 , 120 S. Ct. 1595, 1603-04 (2000) (quotations omitted). We have reviewed the district court’s judgment in l ight of Mr. Ramer’s submissions to this court and the record on appeal. We agree that Mr. Ramer has failed to establish that the state court decision “ was contrary to, or involved an-6-

unreasonable application of, clearly established Fe deral law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 22 54(d)(1), or “was based on an unreasonable determination of the facts in lightof the evidence presented in the State court proceeding,” id. § 2254(d)(2). We DENY Mr. Ramer’s request for a certificate of ap pealability and DISMISS this appeal. Mr. Ramer’s two motions to supplement and amend his petition are DENIED. Mr. Ramer’s motion to order t he district court to comply with appellate rules is DENIED. Mr. Ramer’s motion to withdraw his motion to order the district court to comply with appellate rules is DENIED as moot. The mandate shall issue forthwith.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge