* Petitioner named Ron Ward as Respondent. Since the filing of the

petition, Mr. Ward has retired, and Edward L. Evans has been named the Interim Director of the Department of Corrections. Accordi ngly, pursuant to Fed. R. Civ. P. 25(d)(1), Edward L. Evans has been substituted a s Respondent. 

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

### March 22, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

T’SHUN WILSON,

Petitioner-Appellant, No. 05-6327

v. (D.C. No. CIV-05-546-T) EDWARD L. EVANS, * (W. D. Okla.)

Respondent-Appellee.

ORDER

Before KELLY , McKAY , and LUCERO , Circuit Judges.

Petitioner, a prisoner in Oklahoma state prison, ha s brought this action under 28 U.S.C. § 2241. On December 6, 2004, Petit ioner failed to return to the halfway house where he was being detained. He was authorized to work from 8:00 a.m. to 10:00 p.m. and had until 11:00 p.m. to return to the halfway h ouse. At 10:25 p.m., Petitioner called the halfway house to inform them that he would be approximately twenty or thirty minutes late in r eturning. At 11:20 p.m., the halfway house called the job site and received no a nswer. A halfway house-2-

employee was sent to the job site to look for Petit ioner and found the site vacant at 12:05 a.m. Petitioner returned to the halfway h ouse at 12:45 a.m. Petitioner was served with the investigator’s report on December 20, 2004, and Petitioner acknowledged to the investigator that he had returned to the halfway house late. The original hearing date was scheduled for December 31, 2004, but was rescheduled twice to accommodate furt her investigation. At the hearing eventually held on January 19, 2005, the he aring officer dismissed the charges against Petitioner because the Department o f Corrections had failed to follow its own policies regarding the timing of rep orts and hearings, and because the incident was investigated before the offense re port was served. But that same day, the facility head ordered a rehearing of the d ecision, and on January 28, 2005, the hearing officer found Petitioner guilty o f escape because Petitioner admitted the late return. As a result of the convi ction, Petitioner lost 365 days’ credit and spent thirty days in disciplinary segreg ation. The facility head affirmed this finding. Petitione r appealed to the administrator of the halfway house, who affirmed th e finding, and then appealed to the current Respondent’s predecessor. The then- Director of the Department of Corrections denied Petitioner’s appeal, finding that due process had been accorded and that “[a]ny time an inmate cannot be l ocated they may be considered an escapee, as there is no time frame in which they must be gone.” Report and-3-

Recommendation, 4 (W.D. Okla. Aug. 26, 2005). In h is § 2241 petition, Petitioner now alleges (1) that the hearings were n ot conducted in a timely manner, (2) that the hearing was not impartial, and (3) that there was insufficient evidence to support a charge of escape. The magistrate judge issued a report recommending d ismissal of each of Petitioner’s claims. As to the hearing’s timelines s, while acknowledging that Oklahoma law does create a liberty interest in pris oner’s earned credits and, therefore, due process protections apply to their l oss, the magistrate judge noted that “a failure to adhere to administrative regulat ions does not equate to a constitutional violation.” Id. at 4-5 (internal quotation omitted). The magistrate judge explained that “even though the Department of Corrections failed to strictly follow its own regulations[,] . . . he had the requ isite twenty-four hours in which to prepare, he had adequate notice of the conduct w ith which he was charged, he had the opportunity to present evidence, and he rec eived a written statement of the evidence relied upon and the reasons for the di sciplinary action.” Id. at 6. Petitioner’s complaint of partiality is based on th e fact that the same person referred Petitioner’s action for investigation, aff irmed his guilt on January 28, and denied Petitioner’s appeal to the facility head. T he magistrate judge recommended dismissal of this because “[t]he mere f act that Petitioner was found guilty is not indicative of bias or prejudice or pa rtiality on the part of the-4-

rehearing officer.” Id. at 7. Additionally, as the magistrate judge noted , Petitioner’s partiality complaint is at least partl y based on alleged partiality in the appeals process, but an appeal is not constitutiona lly required in instances of prison discipline. See Wolff v. McDonnell , 418 U.S. 539, 564-66 (1974) (limiting a prisoner’s due process rights). Finally, Petitioner argued that his actions did notconstitute escape because “an inmate assigned to an alternative to incarcerat ion authorized by law or to the Preparole Conditional Supervision Program” must be out of contact for at least twenty-four hours to be considered an escapee. Okl a. Stat. tit. 21 § 443. The magistrate judge recommended dismissal of this clai m because the halfway house to which Petitioner was assigned was a correctional facility and Petitioner was not covered by § 443, and therefore any unexplained abs ence could constitute escape. The district court adopted the magistrate judge’s r ecommendations over Petitioner’s objections and dismissed Petitioner’s claims on September 21, 2005. Order, 3 (W.D. Okla. Sept. 21, 2005). The districtcourt also denied Petitioner’s motion to proceed in forma pauperis. Order Denying Leave to Proceed In Forma Pauperis (W.D. Okla. May 18, 2005). Though the dis trict court did not address whether to grant Petitioner a certificate of appeal ability (“COA”), we proceed as if Petitioner’s motion for a COA was denied. Petiti oner advances to this court the same arguments he made to the district court and se eks from us a COA.-5-

In order for this court to grant a COA, 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 ju rists 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 t o deserve encouragement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quotations omitted). We have carefully reviewed Petitioner’s brief, the magistrate judge’s recommendation, the district court’s disposition, a nd the record on appeal. Nothing in the facts, the record on appeal, or Peti tioner’s filing raises an issue which meets our standard for the grant of a COA. F or substantially the same reasons set forth by the magistrate judge in his Au gust 26, 2005, Report and Recommendation and district court in its September 21, 2005, Order, we cannot say “that reasonable jurists could debate whether ( or, for that matter, agree that) the petition should have been resolved in a differe nt manner.” Id.
We DENY Petitioner’s request for a COA and DISMISS the appeal. Petitioner’s motion to proceed in forma pauperis is DENIED

. Entered for the Court

Monroe G. McKay Circuit Judge