Red Star v. Gallegos , 141 F. App'x 766 ( 2005 )


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  •                                                                                F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    July 28, 2005
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    ANDREW RED STAR,
    Petitioner - Appellant,                      No. 05-3084
    v.                                                 (D. Kansas)
    E. J. GALLEGOS,                                     (D.C. No. 05-CV-3029-RDR)
    Respondent - Appellee.
    ORDER AND JUDGMENT*
    Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.
    Applicant Andrew Red Star, proceeding pro se and in forma pauperis, appeals the
    district court’s denial of his application for habeas corpus under 
    28 U.S.C. § 2241
    . As a
    federal prisoner proceeding under § 2241, Applicant does not need a certificate of
    appealability. See McIntosh v. United States Parole Comm’n., 
    115 F.3d 809
    , 810 n.1
    (10th Cir. 1997). Because the issues he raises on appeal are different from those he
    brought before the district court, we affirm.
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously that 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). The case is therefore ordered
    submitted without oral argument. This order and judgment is not binding precedent,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.
    Applicant pleaded guilty to assault in an administrative disciplinary proceeding
    and was sanctioned to a loss of telephone and commissary privileges for 45 days, 15 days
    segregation, and forfeiture of 14 days of good-time credit. Before the district court,
    Applicant sought expungement of this disciplinary report based on a procedural
    error—namely, failure to conduct a hearing before the Unit Discipline Committee within
    three days. Finding that the error resulted in only a brief delay and that the
    administrative-appeals process and subsequent rehearing adequately protected
    Applicant’s rights, the district court denied habeas relief.
    On appeal Applicant argues that the district court erred in not ordering Respondent
    to file an answer to his procedural claim. He also contends that he was not allowed to call
    witnesses or present evidence in the disciplinary proceeding. Nothing in the record
    indicates that Applicant raised these issues before the district court. Generally, “a federal
    appellate court does not consider an issue not passed upon below.” In re Walker, 
    959 F.2d 894
    , 896 (10th Cir. 1992) (internal quotation marks omitted). Applicant “does not
    argue on appeal that any special circumstance requires us to address [his] contention[s]
    despite lack of preservation below.” United States v. Windrix, 
    405 F.3d 1146
    , 1156 (10th
    Cir. 2005). Therefore, we do not consider these claims.
    We AFFIRM the judgment of the district court.
    ENTERED FOR THE COURT
    Harris L Hartz
    Circuit Judge
    -2-
    

Document Info

Docket Number: 05-3084

Citation Numbers: 141 F. App'x 766

Judges: Hartz, McCONNELL, Seymour

Filed Date: 7/28/2005

Precedential Status: Non-Precedential

Modified Date: 8/3/2023