Veal v. Jones , 349 F. App'x 270 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
October 14, 2009
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
RONALD R. VEAL,
Petitioner-Appellant,
No. 09-6055
v.
(D.C. No. 5:08-CV-00350-F)
(W.D. Okla.)
JUSTIN JONES, Director of the
Oklahoma Department of Corrections,
Respondent-Appellee.
ORDER DENYING
CERTIFICATE OF APPEALABILITY
Before LUCERO, McKAY, and MURPHY, Circuit Judges.
Ronald Veal, an Oklahoma state prisoner proceeding pro se, requests a
certificate of appealability (“COA”) to appeal the district court’s denial of his 28
U.S.C. § 2241 petition for a writ of habeas corpus, and seeks leave to proceed in
forma pauperis (“IFP”). Exercising jurisdiction under 28 U.S.C. §§ 1291 and
2253, we deny a COA, grant the petition to proceed IFP, and dismiss the appeal.
I
Veal’s petition arises out of a disciplinary hearing for prison misconduct.
On April 29, 2007, prison officials were planning to conduct a search of Veal’s
cell. A guard reported that, as he approached, Veal ran to the toilet, pulled an
object out of his pants, and flushed it down the toilet. In response, the Oklahoma
Department of Corrections instituted disciplinary proceedings, initially charging
him with running from or resisting apprehension, a Class X infraction. Ten days
later, it altered the charge to destroying or attempting to destroy evidence, a Class
A infraction. Veal was notified of the change and waived an additional
twenty-four hours to prepare. Although he obtained statements about the incident
from several witnesses, Veal chose not to present those statements at his
disciplinary hearing because he believed they spoke to the Class X infraction but
not to the Class A infraction.
The Department found Veal in violation of the Class A infraction. Veal
filed an unsuccessful administrative appeal, claiming in part that he was denied
procedural due process because he was unable to present witnesses or use witness
statements at the hearing. Veal then initiated a state habeas corpus proceeding in
Oklahoma state district court, which dismissed Veal’s claim as frivolous. The
Oklahoma Court of Criminal Appeals denied Veal relief for substantially the same
reasons as the district court.
After exhausting other available remedies, Veal timely filed a habeas
petition in the United States District Court for the Western District of Oklahoma.
A few months later, the Department of Corrections vacated Veal’s earlier
disciplinary conviction, granted him a new administrative hearing, and moved to
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dismiss the case as moot. The district court granted the motion and denied a
COA. Veal now asks this court to grant a COA and overturn his disciplinary
conviction.
II
Because the district court denied Veal a COA, he may not appeal the district
court’s decision absent a grant of a COA by this court. Montez v. McKinna, 208
F.3d 862, 868-69 (10th Cir. 2000). A COA may be issued “only if the applicant
has made a substantial showing of the denial of a constitutional right.”
§ 2253(c)(2). This requires Veal to show “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 construe Veal’s request for a COA liberally because he proceeds pro se.
See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). He argues that: (1) the
initiation of federal habeas proceedings stripped the Oklahoma Department of
Corrections of the jurisdiction to vacate his disciplinary conviction and order a
new hearing; and (2) his initial hearing denied him procedural due process.
That a federal court has begun habeas proceedings does not deprive a
different, competent tribunal of the power to rehear a prisoner’s case. See Hayes
v. Evans, 70 F.3d 85, 86 (10th Cir. 1995). Action of another tribunal renders a
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habeas corpus petition moot when, as a result of the action, the petition “no
longer present[s] a case or controversy under Article III, § 2, of the Constitution. .
. . This means that, throughout the litigation, the plaintiff must have suffered, or
be threatened with, an actual injury traceable to the defendant and likely to be
redressed by a favorable judicial decision.” Spencer v. Kemna, 523 U.S. 1, 7
(1998) (quotations omitted). Here, Veal has already received the precise remedy
he has requested: that his disciplinary conviction be overturned and that he be
provided the opportunity to present witnesses on the Class A charge. Thus, even
assuming that Veal’s procedural due process rights were violated by the change in
charge, his claim is now moot.
III
Veal also petitions the court to proceed IFP. Though his claims were
ultimately without merit, they were not so frivolous or unreasoned as to imply bad
faith. See 28 U.S.C. § 1915(a)(1) & (a)(3). Therefore his petition to proceed IFP
is GRANTED. For the reasons set forth above, however, Veal’s request for a
COA is DENIED, and his petition is DISMISSED.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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