Grover Miskovsky v. Eric Franklin , 285 F. App'x 570 ( 2008 )


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  •                                                                                  FILED
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS                     August 4, 2008
    Elisabeth A. Shumaker
    TENTH CIRCUIT                          Clerk of Court
    GROVER MISKOVSKY,
    Petitioner - Appellant,
    v.                                                   No. 08-6005
    (D. Ct. No. 05-CV-01436-HE)
    ERIC FRANKLIN, Warden,                                         (W.D. Okla.)
    Respondent - Appellee.
    ORDER DENYING CERTIFICATE OF APPEALABILITY
    Before TACHA, KELLY, and McCONNELL, Circuit Judges.
    Petitioner-Appellant Grover Miskovsky, proceeding pro se, seeks a certificate of
    appealability (“COA”) to challenge the district court’s denial of his petition for habeas
    relief pursuant to 
    28 U.S.C. § 2241
    . We DENY a COA and therefore dismiss this appeal.
    Mr. Miskovsky is a state prisoner in Oklahoma serving consecutive 84-year, 7-
    year, and 2-year sentences. During his incarceration, Mr. Miskovsky was charged with
    prison misconduct after two box blades and a screwdriver tip were discovered in a light
    fixture in the cell Mr. Miskovsky shared with Robert Simmons. After a hearing
    conducted by the Oklahoma Department of Corrections, Mr. Miskovsky was found guilty
    of misconduct. As part of his punishment, Mr. Miskovsky lost 365 days of good time
    credit.
    Mr. Miskovsky then filed this § 2241 habeas petition in district court, arguing that
    he was denied due process when his earned credits were revoked. He specifically
    contends that, among other things, the prison disciplinary proceeding for possession of
    contraband failed to consider potentially exculpatory statements and violated the “some
    evidence” standard. See Superintendent v. Hill, 
    472 U.S. 445
    , 454 (1985).
    A petitioner may not appeal the denial of habeas relief under 
    28 U.S.C. § 2241
    unless a COA is granted. 
    28 U.S.C. § 2253
    (c)(1)(A). We will issue a COA “only if the
    applicant has made a substantial showing of the denial of a constitutional right.” 
    Id.
     §
    2253(c)(2). This standard requires Mr. Miskovsky to “demonstrate that reasonable jurists
    would find the district court’s assessment of the constitutional claims debatable or
    wrong.” Slack v. McDaniel, 
    529 U.S. 473
    , 484 (2000).
    First, as the magistrate judge noted, there was ample evidence supporting the
    disciplinary hearing officer’s (“DHO”) determination of guilt:
    (1) the Incident and Misconduct Reports; (2) photocopies of the box
    blades; (3) shakedown logs of [Mr. Miskovsky’s] cell; (4) the presumption
    of constructive possession; and (5) the absence of [the discovering officer’s]
    motive to fabricate evidence of misconduct.
    Second, we agree that Mr. Miskovsky has greatly overstated the exculpatory nature of a
    statement allegedly made by Mr. Simmons. Moreover, the record shows that Mr.
    Simmons was asked to give a statement in conjunction with Mr. Miskovsky’s disciplinary
    hearing but refused to do so. Mr. Miskovsky, however, was still allowed to present
    evidence that Mr. Simmons allegedly confessed to possession of the box blades and the
    -2-
    DHO considered such evidence in making her determination.1
    After carefully reviewing Mr. Miskovsky’s brief, the magistrate judge’s
    comprehensive and well-reasoned report and recommendation, the district court’s
    disposition, and the record on appeal, we find nothing that meets our standard for the
    grant of a certificate of appealability. For substantially the reasons set forth by the
    magistrate judge’s report and recommendation, we DENY Mr. Miskovsky’s request for a
    certificate of appealability and DISMISS the appeal. His motion to proceed in forma
    pauperis is GRANTED.
    ENTERED FOR THE COURT,
    Deanell Reece Tacha
    Circuit Judge
    1
    Mr. Miskovsky also claims that he was denied due process because the
    disciplinary investigator was incompetent and inadequately trained and because he was
    denied a staff representative. We agree with the magistrate that these claims lack merit,
    both factually and legally.
    -3-
    

Document Info

Docket Number: 08-6005

Citation Numbers: 285 F. App'x 570

Judges: Kelly, McCONNELL, Tacha

Filed Date: 8/4/2008

Precedential Status: Precedential

Modified Date: 8/3/2023