F I LED

United States Court of Appeals

Tenth Circuit

July 6, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

WESLEY RHATIGAN,

Petitioner - Appellant,

v.

RON WARD,

Respondent - Appellee.

No. 05-6388

(D.C. No. 05-CV-654-HE)

(W.D. Okla.)

ORDER DENYING CERTIFICATE

OF APPEALABILITY

Before KELLY, McKAY, and LUCERO, Circuit Judges.

Wesley Rhatigan, a state prisoner proceeding pro se, requests a certificate

of appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C.

§ 2241 habeas petition. For substantially the same reasons set forth by the district

court, we DENY a COA and DISMISS. 

Rhatigan is currently serving an eight year sentence for armed robbery by

force in Lawton Correctional Facility in Oklahoma. A correctional officer, Matt

Ferrell, found in Rhatigan’s cell a soda can with a small metal tube struck through

it, enabling it to be used to smoke marijuana. The can smelled heavily of

mariuana and Ferrell prepared a misconduct report. 
 Rhatigan’s petition was filed after April 24, 1996, the effective date of 1

the Antiterrorism and Effective Death Penalty Act (“AEDPA”); as a result,

AEDPA's provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278,

1282 n.1 (10th Cir. 1999) (citing Lindh v. Murphy, 521 U.S. 320 (1997)). 

AEDPA conditions a petitioner's right to appeal a denial of habeas relief under

§ 2241 upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(A); Montez v. McKinna,

208 F.3d 862, 867 (10th Cir. 2000) (holding that § 2253(c)(1)(A) requires a state

prisoner to obtain a COA regardless of whether he is seeking relief under § 2254

or under § 2241). A COA may be issued “only if the applicant has made a

substantial showing of the denial of a constitutional right.” § 2253(c)(2). This

requires Rhatigan to show “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) (quotations

omitted). Because the district court did not grant a COA, Rhatigan may not

appeal the district court's decision absent a grant of a COA by this court. 

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Prison officials held a disciplinary hearing, during which the doctored soda

can was entered into evidence. They did not conduct a laboratory test to

determine that the can was used for smoking marijuana and instead relied on

Officer Ferrell’s report. Rhatigan was found guilty of Possession of Contraband,

and, as a result, lost 365 days of earned good time credits and was assigned to

disciplinary segregation for 30 days. The disciplinary hearing’s result was

affirmed on administrative appeal.

Rhatigan then filed this habeas petition, alleging that errors during the

prison disciplinary hearing violated his rights under the Due Process Clause. The

district court dismissed his petition and denied his subsequent application for

COA. Having failed to receive a COA from that court, Rhatigan now seeks a

COA from this court.1
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Prison disciplinary proceedings can only be challenged under the Due

Process Clause if the resulting disciplinary action implicates a state-created

liberty interest. Stephens v. Thomas, 19 F.3d 498, 501 (10th Cir. 1994). 

Oklahoma has clearly created a liberty interest in good time credits. Waldron v.

Evans, 861 P.2d 311, 313 (Okla. Crim. App. 1993); Mitchell v. Maynard, 80 F.3d

1433, 1445 (10th Cir. 1996). In this case, Rhatigan lost 365 good time credits.

Thus, his liberty interest in the credits cannot be taken away “without the minimal

safeguards afforded by the Due Process Clause of the Fourteenth Amendment.”

Mitchell, 80 F.3d at 1445 (internal quotations omitted). 

Although Rhatigan was entitled to due process, “[p]rison disciplinary

proceedings are not part of a criminal prosecution, and the full panoply of rights

due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418

U.S. 539, 556 (1974). To satisfy due process in a prison disciplinary proceeding,

“the inmate must receive: (1) advance written notice of the disciplinary charges;

(2) an opportunity, when consistent with institutional safety and correctional

goals, to call witnesses and present documentary evidence in his defense; and (3)

a written statement by the factfinder of the evidence relied on and the reasons for

the disciplinary action.” Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472

U.S. 445, 454 (1985). Further, there must be “some evidence in the record”

supporting the charge. Id. “Ascertaining whether this standard is satisfied does

not require examination of the entire record, independent assessment of the
 In his original petition, Rhatigan argued that the chain of control of the 2

doctored soda can was not established. He does not raise this argument on

appeal. Even had he, this claim would not be sufficient under Hill. 472 U.S. at

454. 

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credibility of witnesses, or weighing of the evidence. Instead, the relevant

question is whether there is any evidence in the record that could support the

conclusion reached by the disciplinary board.” Id. at 455-56. 

Rhatigan alleges that prison officials erred by failing to conduct a

laboratory test to determine whether the doctored soda can found in his room was

actually used to smoke marijuana. Under Hill, this is not a due process violation. 

2

Rhatigan does not allege any failure on the part of prison officials to give him

notice, an opportunity to call witnesses and present evidence, or a written

statement explaining the decision. Further, there is clearly “some evidence” in

the record that Rhatigan possessed marijuana; Officer Herrell reported that the

can discovered in Rhatigan’s room smelled of marijuana and the can itself had

been modified such that it could be used for smoking marijuana. Thus, there is no

due process violation. 

For the reasons set forth above, Rhatigan’s request for a COA is DENIED

and the appeal is DISMISSED. Appellant’s motion to proceed in forma pauperis

is GRANTED. 

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge