(D.C. No. 5:11-CV-00831-C) (W.D. Okla.).
Before LUCERO, Circuit Judge, PORFILIO, Senior Circuit Judge, and MATHESON, Circuit Judge.
ORDER AND JUDGMENT[*]
CARLOS F. LUCERO, Circuit Judge.
Murtaza Ali, an Oklahoma state prisoner, appeals from the district court's dismissal of his 28 U.S.C. § 2241 petition for a writ of habeas corpus. He seeks a certificate of appealability ("COA") and leave to proceed in forma pauperis ("IFP"). Exercising jurisdiction under 28 U.S.C. § 1291, we grant a COA and grant his motion to proceed IFP. On the merits, we reverse and remand to the district court for further proceedings.
In August 2010, Ali submitted a request-to-staff letter to the female administrator of the prison's faith-based program. In the letter, Ali inquired about the administrator's sexual orientation, citing religious beliefs that prohibited him from being instructed by a homosexual. The administrator responded by informing Ali that she interpreted his letter as sexual harassment and that further such correspondence would result in disciplinary action. The prison began an investigation into whether it would charge Ali with a disciplinary infraction. During its investigation, Ali was placed in short-term administrative segregation for approximately two weeks.
Like many states, Oklahoma allows its prisoners to earn good time credits, the accrual of which may result in the prisoner's early release. Each earned credit is equivalent to one day of prison. Ali had, until August 2010, reached credit-earning classification level three, earning forty-five credits per month. But pursuant to Oklahoma prison policy OP-060107, an assignment to level one, non-credit earning status, is mandatory when placed in short-term administrative segregation. Ali's classification level was thus dropped from three to one and he ceased earning good time credits while in segregation.
Ali filed his § 2241 petition in federal court, naming Warden Joseph Taylor as respondent. He argued that he was denied due process under the Fourteenth Amendment when he was demoted to a non-credit-earning classification level. He contends that the investigation—and subsequent transfer to segregation—was meritless and arbitrary. Ali asserts that his classification level, in which he allegedly held a liberty interest, was reduced for exercising his First Amendment rights.
The district court adopted the magistrate judge's report and recommendation, which found that Ali's reduced credit-earning classification did not implicate a liberty interest because the prison officials had discretion over Ali's placement in segregation, which caused the demotion. The district court therefore concluded there was no due process violation and dismissed Ali's petition. Ali filed a timely notice of appeal, which this court construes as an application for a COA. See Fed. R. App. P. 22(b)(2). Ali and the respondent have fully briefed the merits on appeal.
Ali's petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"); as a result, AEDPA's provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1 (10th Cir. 1999). AEDPA conditions a petitioner's right to appeal a denial of habeas relief under § 2241 upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(A); Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000) (holding that § 2253(c)(1)(A) requires a state prisoner to obtain a COA regardless of whether he is seeking relief under § 2254 or under § 2241).
We review the district court's dismissal of Ali's § 2241 petition de novo. Abernathy v. Wandes, 713 F.3d 538, 544 (10th Cir. 2013). For the reasons discussed below, we conclude that Ali has made a "substantial showing of the denial of a constitutional right" on the liberty-interest issue and therefore grant a COA. 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Additionally, because both parties fully briefed the issue, we turn to the merits of Ali's claim that he had a constitutionally protected liberty interest in his credit-earning classification.
"The Fourteenth Amendment prohibits states from depriving citizens of liberty without due process of law." Wilson v. Jones, 430 F.3d 1113, 1117 (10th Cir. 2005). "Although their due process rights are defined more narrowly, that guarantee applies to prisoners as well." Id. In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court held that a prisoner is entitled to due process before he is subjected to disciplinary conduct that "inevitably affect[s] the duration of his sentence." Id. at 484, 487.
To make a claim that he was entitled to due process before having his credit-earning level reduced, Ali "must assert the infringement of a protected liberty interest." Fristoe v. Thompson, 144 F.3d 627, 630 (10th Cir. 1998). "A liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word 'liberty, ' or it may arise from an expectation or interest created by state laws or policies." Estate of DiMarco v. Wyo. Dep't of Corr., 473 F.3d 1334, 1339 (10th Cir. 2007) (quoting Wilkinson v. Austin, 545 U.S. 209, 221 (2005)); see also Ky. Dep't. of Corr. v. Thompson, 490 U.S. 454, 461 (1989) ("[S]tate law may create enforceable liberty interests in the prison setting."). Ali argues that he had a liberty interest in his credit-earning classification. Taylor submits as a rule of law the proposition that Oklahoma inmates have no liberty ...