*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. Accordingly, pursuant to Fed. R. Civ.

P. 25(d)(1), Edward L. Evans has been substituted as 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, has brought this action

under 28 U.S.C. § 2241. On December 6, 2004, Petitioner 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 house. 

At 10:25 p.m., Petitioner called the halfway house to inform them that he would

be approximately twenty or thirty minutes late in returning. At 11:20 p.m., the

halfway house called the job site and received no answer. A halfway house
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employee was sent to the job site to look for Petitioner and found the site vacant

at 12:05 a.m. Petitioner returned to the halfway house 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 further investigation. At the

hearing eventually held on January 19, 2005, the hearing officer dismissed the

charges against Petitioner because the Department of Corrections had failed to

follow its own policies regarding the timing of reports and hearings, and because

the incident was investigated before the offense report was served. But that same

day, the facility head ordered a rehearing of the decision, and on January 28,

2005, the hearing officer found Petitioner guilty of escape because Petitioner

admitted the late return. As a result of the conviction, Petitioner lost 365 days’

credit and spent thirty days in disciplinary segregation.

The facility head affirmed this finding. Petitioner appealed to the

administrator of the halfway house, who affirmed the 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 located they may be considered

an escapee, as there is no time frame in which they must be gone.” Report and
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Recommendation, 4 (W.D. Okla. Aug. 26, 2005). In his § 2241 petition,

Petitioner now alleges (1) that the hearings were not 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 dismissal of each of

Petitioner’s claims. As to the hearing’s timeliness, while acknowledging that

Oklahoma law does create a liberty interest in prisoner’s earned credits and,

therefore, due process protections apply to their loss, the magistrate judge noted

that “a failure to adhere to administrative regulations 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 requisite twenty-four hours in which

to prepare, he had adequate notice of the conduct with which he was charged, he

had the opportunity to present evidence, and he received a written statement of

the evidence relied upon and the reasons for the disciplinary action.” Id. at 6. 

Petitioner’s complaint of partiality is based on the fact that the same person

referred Petitioner’s action for investigation, affirmed his guilt on January 28, and

denied Petitioner’s appeal to the facility head. The magistrate judge

recommended dismissal of this because “[t]he mere fact that Petitioner was found

guilty is not indicative of bias or prejudice or partiality on the part of the
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rehearing officer.” Id. at 7. Additionally, as the magistrate judge noted,

Petitioner’s partiality complaint is at least partly based on alleged partiality in the

appeals process, but an appeal is not constitutionally 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 not constitute escape because

“an inmate assigned to an alternative to incarceration 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. Okla. Stat. tit. 21 § 443. The

magistrate judge recommended dismissal of this claim because the halfway house

to which Petitioner was assigned was a correctional facility and Petitioner was not

covered by § 443, and therefore any unexplained absence could constitute escape.

The district court adopted the magistrate judge’s recommendations over

Petitioner’s objections and dismissed Petitioner’s claims on September 21, 2005. 

Order, 3 (W.D. Okla. Sept. 21, 2005). The district court 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 district court did not address

whether to grant Petitioner a certificate of appealability (“COA”), we proceed as

if Petitioner’s motion for a COA was denied. Petitioner advances to this court the

same arguments he made to the district court and seeks from us a COA.
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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 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). 

We have carefully reviewed Petitioner’s brief, the magistrate judge’s

recommendation, the district court’s disposition, and the record on appeal. 

Nothing in the facts, the record on appeal, or Petitioner’s filing raises an issue

which meets our standard for the grant of a COA. For substantially the same

reasons set forth by the magistrate judge in his August 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 different 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