FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 24, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court RICHARD L. DOPP,
Petitioner - Appellant,
v. No. 19-6089 (D.C. No. 5:18-CV-00520-D) TERESA McCOIN, District Supervisor, (W.D. Okla.) Northeast District, Probation and Parole; SCOTT CROW, Interim Director, Oklahoma Department of Corrections,
Respondents - Appellees. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before LUCERO, PHILLIPS, and EID, Circuit Judges. _________________________________
In 1998, Petitioner Richard L. Dopp was convicted on firearm and drug
offenses. The court sentenced him to life without parole (LWOP), which in 2018 was
commuted to 30 years. In calculating his remaining sentence, officials deducted
credits for prison misconduct. He is now out on parole. Dopp, proceeding pro se,
sought habeas relief under 28 U.S.C. § 2241 concerning three misconduct violations
for which he claims to have lost good-time credits—escape, possessing contraband,
and disruptive conduct. Dopp v. McCoin, No. CIV-18-520-D, 2019 WL 1952693, at
* This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. *1 (W.D. Okla. May 2, 2019). The district court denied relief on the first and third
violations but granted relief on the second. Id. at *4–5. Dopp seeks a certificate of
appealability (COA) over the two denials.1 We deny the COA.
BACKGROUND
Dopp’s escape violation stemmed from a 2009 event when he left prison “on a
Certificate of Release that the state court found was secured through the use of a
fraudulent document purporting to be an amended judgment and sentence.” Dopp v.
Workman, 502 F. App’x 797, 800 (10th Cir. 2012) (unpublished). State officials
quickly located him at his mother’s house and brought him back to prison. Id. Back
in prison, officials placed him in segregated confinement for nearly a year before a
disciplinary hearing was held over his alleged misconduct. At the hearing, the
hearing officer denied Dopp’s request to call two Internal Affairs (IA) officers as
witnesses to testify about an “agreement that there would be no street . . . or
misconduct [charges]” if Dopp confessed to them. R. vol. II at 201–03. The officer
reasoned that the “I/A investigators deal [was] not part of this misconduct.” Id. at
202–03.2
1 Dopp also argues that the district court ignored his claim that his credits were incorrectly applied. This is incorrect. In fact, the district court instructed Oklahoma prison officials to “recalculate [Dopp’s] remaining time to be served . . . .” Dopp, 2019 WL 1952693, at *5. 2 In the district court, Dopp also alleged that he was denied the ability to present his “Certificate of Release,” which he claimed was exculpatory. But as noted by the district court, the state considered the certificate at the hearing. Dopp does not raise this issue on appeal. 2 Dopp’s disruptive-behavior violation stemmed from an event in 2012 when he
sent an IA officer a letter “using the legal mail.” R. vol. II at 212, 214. Initially, Dopp
was convicted, but upon rehearing, the charge was dismissed.
DISCUSSION
To receive a COA, Dopp must “ma[k]e a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). This requires “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, 529 U.S. 473, 484 (2000) (quoting Barefoot v.
Estelle, 463 U.S. 880, 893 n.4 (1983)).
I. Escape
Dopp contests two consequences of his escape conviction: (1) his
predisciplinary-hearing placement in segregated confinement; and (2) the denial of
two witnesses he wished to call at the hearing. We examine each in turn.
A. Predisciplinary-Hearing Detention
As a parolee, Dopp is “in custody.” See United States v. Condit, 621 F.2d
1096, 1098 (10th Cir. 1980) (“For . . . habeas[,] . . . parole[] constitutes ‘custody.’”).
“A petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather
than its validity . . . .” Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). “The
fundamental purpose of a § 2241 habeas proceeding is to allow a person in custody to
attack the legality of that custody, and the ‘traditional function of the writ is to secure
release from illegal custody.’” Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th
3 Cir. 2012) (quoting McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811 (10th Cir.
1997)). Thus, “a challenge to the conditions of [a prisoner’s] confinement . . . must
be brought” as a civil-rights—not habeas—action. Id. at 1036. Here, Dopp claims
that his prehearing segregation violated due process. Even if it did, habeas relief is
not the appropriate avenue for such a challenge. By contesting the conditions of his
previous confinement, he is seeking civil-rights relief, not relief under § 2241.
Therefore, a COA is denied on this ground.
B. Witness Exclusion
“It is well settled that an inmate’s liberty interest in his earned good time
credits cannot be denied without the minimal safeguards afforded by the Due Process
Clause . . . .” Howard v. U.S. Bureau of Prisons, 487 F.3d 808, 811 (10th Cir. 2007)
(internal quotation marks omitted) (quoting Mitchell v. Maynard, 80 F.3d 1433, 1444
(10th Cir. 1996)). But “[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). As such, where discipline
may result in the loss of good-time credits, due process requires:
(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.
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 24, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court RICHARD L. DOPP,
Petitioner - Appellant,
v. No. 19-6089 (D.C. No. 5:18-CV-00520-D) TERESA McCOIN, District Supervisor, (W.D. Okla.) Northeast District, Probation and Parole; SCOTT CROW, Interim Director, Oklahoma Department of Corrections,
Respondents - Appellees. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before LUCERO, PHILLIPS, and EID, Circuit Judges. _________________________________
In 1998, Petitioner Richard L. Dopp was convicted on firearm and drug
offenses. The court sentenced him to life without parole (LWOP), which in 2018 was
commuted to 30 years. In calculating his remaining sentence, officials deducted
credits for prison misconduct. He is now out on parole. Dopp, proceeding pro se,
sought habeas relief under 28 U.S.C. § 2241 concerning three misconduct violations
for which he claims to have lost good-time credits—escape, possessing contraband,
and disruptive conduct. Dopp v. McCoin, No. CIV-18-520-D, 2019 WL 1952693, at
* This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. *1 (W.D. Okla. May 2, 2019). The district court denied relief on the first and third
violations but granted relief on the second. Id. at *4–5. Dopp seeks a certificate of
appealability (COA) over the two denials.1 We deny the COA.
BACKGROUND
Dopp’s escape violation stemmed from a 2009 event when he left prison “on a
Certificate of Release that the state court found was secured through the use of a
fraudulent document purporting to be an amended judgment and sentence.” Dopp v.
Workman, 502 F. App’x 797, 800 (10th Cir. 2012) (unpublished). State officials
quickly located him at his mother’s house and brought him back to prison. Id. Back
in prison, officials placed him in segregated confinement for nearly a year before a
disciplinary hearing was held over his alleged misconduct. At the hearing, the
hearing officer denied Dopp’s request to call two Internal Affairs (IA) officers as
witnesses to testify about an “agreement that there would be no street . . . or
misconduct [charges]” if Dopp confessed to them. R. vol. II at 201–03. The officer
reasoned that the “I/A investigators deal [was] not part of this misconduct.” Id. at
202–03.2
1 Dopp also argues that the district court ignored his claim that his credits were incorrectly applied. This is incorrect. In fact, the district court instructed Oklahoma prison officials to “recalculate [Dopp’s] remaining time to be served . . . .” Dopp, 2019 WL 1952693, at *5. 2 In the district court, Dopp also alleged that he was denied the ability to present his “Certificate of Release,” which he claimed was exculpatory. But as noted by the district court, the state considered the certificate at the hearing. Dopp does not raise this issue on appeal. 2 Dopp’s disruptive-behavior violation stemmed from an event in 2012 when he
sent an IA officer a letter “using the legal mail.” R. vol. II at 212, 214. Initially, Dopp
was convicted, but upon rehearing, the charge was dismissed.
DISCUSSION
To receive a COA, Dopp must “ma[k]e a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). This requires “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, 529 U.S. 473, 484 (2000) (quoting Barefoot v.
Estelle, 463 U.S. 880, 893 n.4 (1983)).
I. Escape
Dopp contests two consequences of his escape conviction: (1) his
predisciplinary-hearing placement in segregated confinement; and (2) the denial of
two witnesses he wished to call at the hearing. We examine each in turn.
A. Predisciplinary-Hearing Detention
As a parolee, Dopp is “in custody.” See United States v. Condit, 621 F.2d
1096, 1098 (10th Cir. 1980) (“For . . . habeas[,] . . . parole[] constitutes ‘custody.’”).
“A petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather
than its validity . . . .” Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). “The
fundamental purpose of a § 2241 habeas proceeding is to allow a person in custody to
attack the legality of that custody, and the ‘traditional function of the writ is to secure
release from illegal custody.’” Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th
3 Cir. 2012) (quoting McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811 (10th Cir.
1997)). Thus, “a challenge to the conditions of [a prisoner’s] confinement . . . must
be brought” as a civil-rights—not habeas—action. Id. at 1036. Here, Dopp claims
that his prehearing segregation violated due process. Even if it did, habeas relief is
not the appropriate avenue for such a challenge. By contesting the conditions of his
previous confinement, he is seeking civil-rights relief, not relief under § 2241.
Therefore, a COA is denied on this ground.
B. Witness Exclusion
“It is well settled that an inmate’s liberty interest in his earned good time
credits cannot be denied without the minimal safeguards afforded by the Due Process
Clause . . . .” Howard v. U.S. Bureau of Prisons, 487 F.3d 808, 811 (10th Cir. 2007)
(internal quotation marks omitted) (quoting Mitchell v. Maynard, 80 F.3d 1433, 1444
(10th Cir. 1996)). But “[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). As such, where discipline
may result in the loss of good-time credits, due process requires:
(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) (citing
Wolff, 418 U.S. at 563–67). Additionally, “revocation of good time does not comport
with the minimum requirements of procedural due process unless the findings of the
4 prison disciplinary board are supported by some evidence in the record,” id. (internal
citation and quotation marks omitted), and “the decisionmaker [is] impartial,” Gwinn
v. Awmiller, 354 F.3d 1211, 1219 (10th Cir. 2004) (citing Wolff, 418 U.S. at 592).3
Reviewing the record, we conclude that the hearing officer did not violate
Dopp’s due-process rights by preventing Dopp from calling the two witnesses. Dopp
argues that this decision deprived him of the opportunity to show that he “never
admitted to providing any [false release documents] . . . [and] that [he] did not know
his release was unlawful because he had nothing to do with that release.” Appellant’s
Br. 3. But initially Dopp sought this testimony solely to show that he had a deal.
Thus, on appeal he has expanded his reasons for needing the testimony beyond those
originally given.
In the matter at issue, the officer was investigating whether Dopp should be
punished for escaping from prison using a forged document. The investigation did
not concern what the IA officers had offered Dopp in exchange for his confession.
Dopp does not argue that his admission was coerced or otherwise problematic. He
simply wants to say why he confessed. Since the hearing was to determine whether
Dopp engaged in misconduct, evidence of a deal is irrelevant. Therefore, excluding
witnesses whose only purpose was to testify to a deal did not violate due process.
Additionally, the hearing officer’s decision was supported by “some
evidence.” As evidence of guilt, the hearing officer relied on the IA officers’ report,
3 Both “advance written notice” and a “written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action” were provided. 5 which referenced Dopp’s admission to using a fraudulent document to escape.
Dopp’s admission of the misconduct constitutes “some evidence,” such that this
misconduct conviction complied with due process. Therefore, a COA is denied on
this ground.
II. Disruptive Behavior
Dopp contends that the district court erred by treating his disruptive-behavior
violation claim as moot. He contends that he has a live claim because prison officials
never returned a $5.00 fee imposed on him for the violation. But the district court
reviewed the record and concluded that officials did in fact return Dopp the $5.004
and that he lost no good-time credits for his disruptive-behavior violation. Dopp v.
McCoin, No. CIV-18-520-D, 2019 WL 1952693, at *4 (W.D. Okla. May 2, 2019).
Because Dopp does not allege that this violation is on his record or that he has lost
any good time credits for it, § 2241 relief is not available. Thus, we deny a COA on
III. Miscarriage of Justice
Finally, Dopp asks for a COA under the miscarriage-of-justice exception to
habeas. But “[t]his exception . . . is a markedly narrow one, implicated only in
‘extraordinary case[s] where a constitutional violation has probably resulted in the
conviction of one who is actually innocent.’” Magar v. Parker, 490 F.3d 816, 820
(10th Cir. 2007) (second alteration in original) (quoting Phillips v. Ferguson, 182
4 We need not reach whether Dopp was assessed a $5.00 fine, since habeas is not the appropriate avenue for relief even if it was assessed. 6 F.3d 769, 774 (10th Cir. 1999)). To succeed, Dopp “must identify evidence that
affirmatively demonstrates his innocence,” and in doing so must “do[] more than
simply ‘undermine the finding of guilt against’ him . . . .” Phillips, 182 F.3d at 774
(quoting Ballinger v. Kerby, 3 F.3d 1371, 1375 (10th Cir. 1993)). Here, after
reviewing the record, we conclude that Dopp has provided no evidence
demonstrating his actual innocence. Rather, he takes issue with the evidence used to
convict him, which does not affirmatively demonstrate his innocence. Therefore,
Dopp has failed to support a claim for miscarriage of justice, and we deny a COA on
CONCLUSION
Because no “reasonable jurists could” find that Dopp’s due-process rights were
violated, we deny a COA and dismiss the appeal.
Entered for the Court
Gregory A. Phillips Circuit Judge