302 FAPPX 785 - Tigert v. Higgins

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 10, 2008
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court

KELLY DALE TIGERT,

Petitioner - Appellant,
No. 08-7051
v. (E.D. Oklahoma)
(D.C. No. 6:05-CV-00349-RAW-KEW)
HASKEL HIGGINS, Warden,

Respondent - Appellee.

ORDER DENYING CERTIFICATE
OF APPEALABILITY

Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.

Petitioner-Appellant Kelly Tigert is an Oklahoma state prisoner. When

legal documents bearing Tigert’s name were discovered in the locker of another

inmate, he was charged with violating prison rules prohibiting inmates from

“receiving, trading, selling, giving or loaning” property to another inmate. After

a disciplinary hearing, Tigert was found guilty of Individual Disruptive Behavior

and he lost sixty hours of good time credit.

Proceeding pro se, Tigert filed a petition for a writ of habeas corpus

pursuant to

28 U.S.C. § 2241

 in federal district court. In his petition, Tigert

alleged he was denied due process in the prison disciplinary proceeding. The

federal magistrate judge recommended denying Tigert’s § 2241 petition,
concluding there was no due process violation because Tigert was provided with

(1) at least twenty-four hours advance written notice of the claimed violations, (2)

an opportunity to call witnesses and present documentary evidence in his defense,

and (3) a written statement identifying the evidence relied upon by the factfinders

and the reasons for the disciplinary action taken. Wolff v. McDonnell,

418 U.S. 539, 564-66

 (1974). The magistrate judge further concluded the record contained

“some evidence” to support the disciplinary sanctions imposed on Tigert. 1

Superintendent v. Hill,

472 U.S. 445, 454-55

 (1985). The district court adopted

the magistrate’s recommendation and dismissed Tigert’s § 2241 petition.

      Tigert now seeks a certificate of appealability (“COA”) to enable him to

appeal the district court’s dismissal of his petition. See

28 U.S.C. § 2253

(c)(1)(A). This court will issue a COA “only if the applicant has made a

substantial showing of the denial of a constitutional right.”

Id.

 § 2253(c)(2). To

satisfy this standard, Tigert must demonstrate “that jurists of reason could

disagree with the district court’s resolution of his constitutional claims or that

jurists could conclude the issues presented are adequate to deserve encouragement

to proceed further.” Miller-El v. Cockrell,

537 U.S. 322, 327

 (2003).

      This court has reviewed Tigert’s application for a COA and appellate brief,

the district court’s order, the magistrate judge’s report and recommendation, and

the entire record on appeal pursuant to the framework set out by the Supreme

      1
          That evidence was the document found in the locker.

                                          -2-
Court in Miller-El and concludes that Tigert is not entitled to a COA. The district

court’s resolution of Tigert’s claim is not reasonably subject to debate and the

claim is not adequate to deserve further proceedings. Accordingly, Tigert is not

entitled to a COA.

28 U.S.C. § 2253

(c)(2).

      This court denies Tigert’s request for a COA and dismisses this appeal.

                                      ENTERED FOR THE COURT



                                      Michael R. Murphy
                                      Circuit Judge




                                        -3-
08-7051 - Tigert v. Higgins

HARTZ, Circuit Judge, concurring:

      I concur in denial of the request for a COA and dismissal of the appeal. I

write separately only to address an issue not mentioned in the Order.

      As I read Mr. Tigert’s application for a COA and his original § 2241

application, one ground for his challenge to his discipline is that the rule he

allegedly violated was unconstitutional in its application in this case. The

discipline was based on possession by a fellow inmate of a document belonging to

Mr. Tigert. The respondent acknowledges that the document is a legal document.

Mr. Tigert’s § 2241 application and his pleading to this court appear to contend

(1) that the fellow inmate was Mr. Tigert’s jailhouse lawyer and (2) that a prison

rule cannot totally bar a jailhouse lawyer from possessing a “client’s” legal

materials in his cell. The issue raised by these contentions, it seems to me, would

be worthy of a COA.

      Mr. Tigert, however, failed to raise this issue in his objections to the

magistrate judge’s Report and Recommendation. Therefore, I do not think that

the issue is properly before us and I concur in the Order.