Thannisch v. Scott ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 17 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
ANTHONY JOE THANNISCH,
Petitioner-Appellant,
v. No. 99-6013
(D.C. No. 98-CV-265-L)
H. N. SCOTT, (W.D. Okla.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before ANDERSON, KELLY, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, the panel has determined
oral argument would not materially assist the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Therefore, the case is ordered
submitted without oral argument.
Anthony J. Thannisch, a state prisoner appearing pro se, seeks a certificate
of appealability to appeal the district court’s dismissal of his 28 U.S.C. § 2254
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
habeas petition. As Thannisch has failed to make a “substantial showing of the
denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we deny a certificate of
appealability and dismiss the appeal.
I.
On April 24, 1996, Thannisch was transferred from an Oklahoma state
penitentiary to a private prison housing Oklahoma inmates pursuant to a contract
with the state. He filed a writ of mandamus in state court alleging the transfer
resulted in a diminished opportunity for him to earn good-time credits because the
private facility did not offer “public works jobs” for which state prisoners were
given reductions in sentences. The court denied his request on November 24,
1997. Thannisch apparently filed an identical petition with the Oklahoma Court
of Criminal Appeals and the court denied relief on January 15, 1998. He filed the
instant federal habeas petition on February 23, 1998, asserting the same grounds
as those raised in his state mandamus petitions. The district court denied the
habeas petition after concluding the applicable Oklahoma good-time credits
regulations did not bestow any property or liberty interests upon inmates.
II.
The Supreme Court has held there is no independent constitutional liberty
interest in a state’s good-time credit scheme. Hewitt v. Helms , 459 U.S. 460, 467
(1983). Nor does the Constitution create any property or liberty interest in prison
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employment. Ingram v. Papalia , 804 F.2d 595, 596 (10th Cir. 1986) (per curiam).
Although states may in some circumstances create liberty interests
protected by the Due Process Clause, the liberty interest created by
prison regulations “will generally be limited to freedom from
restraint which . . . imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.”
Penrod v. Zavaras , 94 F.3d 1399, 1406 (10th Cir. 1996) (per curiam) (quoting
Sandin v. Connor , 515 U.S. 472, 484 (1995) (alteration in original)).
Further, t he Oklahoma statutes governing inmate good-time credits do not
guarantee that inmates will receive work-time credit or that inmates will be
provided an opportunity to work. See Okla. Stat. Ann. tit. 57, §§ 138, 224 (West
1991). 1 Thus, an inmate’s transfer from an institution offering such opportunities
to one that does not implicates no constitutional rights. See Meachum v. Fano ,
427 U.S. 215, 229 n.8 (1976). The assignment of inmates is expressly committed
by section 224 to the discretion of prison authorities. As we noted in Twyman v.
Crisp , the work-time credit program
simply provides that if [a prisoner] does work he will receive work-
time credits. At an institution with a large inmate population there
are jobs for only a limited number of prisoners. Therefore, it cannot
be said Oklahoma law creates any right to work-time credits which
amounts to a liberty or property interest.
584 F.2d 352, 357 (10th Cir. 1978) (per curiam) (quoting Gardner v. Benton , 452
1
Although these statutes were amended substantially following
Thannisch’s conviction, the earlier versions also bestowed no such rights on state
inmates. See Okla. Stat. Ann. tit. 57, §§ 138, 224 (West 1981).
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F. Supp. 170, 177 (E.D. Okla. 1977)).
Thannisch’s application for a certificate of appealability is DENIED and
his appeal is DISMISSED. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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