United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE
matter is before the Court for review of the Report and
Recommendation [Doc. No. 30] issued by United States
Magistrate Judge Bernard M. Jones pursuant to 28 U.S.C.
§ 636(b)(1)(B) and (C). Addressing the merits of the
Petition for a Writ of Habeas Corpus Under 28 U.S.C. §
2241, Judge Jones recommends granting the Petition on one of
three grounds asserted by Petitioner for relief from prison
discipline. Petitioner has filed a timely written objection
[Doc. No. 31]. Thus, the Court must make a de novo
determination of portions of the Report to which a specific
objection is made, and may accept, modify, or reject the
recommended decision in whole or in part. See 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3).
Richard L. Dopp, a state prisoner appearing pro se,
seeks relief from three disciplinary convictions that
occurred during his confinement by the Oklahoma Department of
Corrections (“ODOC”). He was found guilty of
misconduct charges for escape (2010), possession of
contraband (2011), and disruptive behavior (2012). At the
time of these convictions, Petitioner was serving a sentence
of life imprisonment without the possibility of parole, and
penalties of lost earned credits could not be administered.
When Petitioner's prison sentence was commuted to a term
of 30 years in 2018, however, ODOC officials calculated an
amount of time remaining to be served and included
lost-credit deductions for past misconduct penalties.
Grounds One through Three of the Petition, Petitioner claims
he was denied due process with respect to each of the three
misconduct charges and was wrongly convicted of the offenses.
In Ground Four, he claims that ODOC officials have
miscalculated the time remaining on his 30-year sentence
because he has not received all earned credits to which he
was entitled without the misconduct offenses. Petitioner
requests expungement of the misconduct convictions from his
prison record, restoration of earned credits, and
recalculation of his remaining time to be served.
See Pet. at 9.
the merits of Petitioner's claims based on the Petition
and Response, as well as the parties' supplemental
filings and briefs, Judge Jones finds that Petitioner has
failed to establish a denial of due process regarding the
convictions for escape and disruptive behavior, but that
Petitioner is entitled to relief from the discipline he
received for possession of contraband. Judge Jones recommends
that Respondents be ordered to expunge this disciplinary
conviction from Petitioner's prison record, restore the
60 earned credits that were lost due to the conviction, and
recalculate Petitioner's time served and projected
construing the Objection due to Petitioner's pro
se status, he challenges certain unfavorable findings
regarding Grounds One and Three of the Petition. First, as to
the escape conviction, Petitioner asserts that Judge Jones
erred by: a) using the standard established by Sandin v.
Connor, 515 U.S. 472, 484 (1995), to find that no due
process claim could be based on Petitioner's placement in
administrative or disciplinary segregation before he was
charged with misconduct; b) finding harmless error in
ODOC's refusal to allow Petitioner to call witnesses or
present evidence; and c) finding the escape charge was
sufficiently proven. Second, Petitioner challenges Judge
Jones' finding that his claim regarding the disruptive
behavior conviction is moot.
de novo consideration, the Court finds no merit in
Petitioner's arguments and no error in Judge Jones'
findings and conclusions. With regard to the escape charge,
the Court is familiar with the circumstances of
Petitioner's release from custody by private prison
officials at Lawton Correctional Facility, which form the
basis of the charge and have been the subject of numerous
motions, pleadings, and filings in prior cases. Petitioner has
also made numerous challenges to his mistaken release and
reincarceration in other state and federal courts. The Tenth
Circuit summarized the underlying facts ¶ 2012, in a
case where Petitioner unsuccessfully sought habeas relief
under § 2254 in the Northern District of Oklahoma, as
In 2009, Dopp was released from prison on a Certificate of
Release that the state court found was secured through the
use of a fraudulent document purporting to be an amended
judgment and sentence. Shortly after his release, Department
of Correction (DOC) Internal Affairs officials located Dopp
at his mother's house and took him back into custody.
Dopp contends that the DOC officials violated his
constitutional rights because they entered his mother's
house without her consent, arrested him without a warrant,
and did not provide him a probable cause hearing before
returning him to prison to serve the remainder of his LWOP
[life without parole] sentence. He also argues that the State
should be bound by the Certificate of Release on contract
Dopp does not dispute the state court's finding that his
release was secured through the use of a fraudulent document
purporting to be an amended judgment and sentence or its
finding that his original LWOP sentence was never lawfully
altered. Because Dopp does not dispute that he was lawfully
subject to imprisonment for the remainder of his life without
the possibility of parole, he has no colorable claim that DOC
officials violated his constitutional rights by returning him
to custody to serve the remainder of that sentence. Nor does
his contention that the Certificate of Release constitutes an
enforceable contract state a colorable claim for the denial
of a constitutional right.
Dopp v. Workman, 502 Fed.Appx. 797, 800-01 (10th
Placement in Segregation Without a Misconduct Charge
Court first considers Petitioner's argument regarding the
legal standard governing the part of his claim in Ground One
that he was entitled to due process when he was placed in
segregation immediately upon being returned to ODOC custody,
before the escape charge was filed. Petitioner is simply
incorrect in asserting that Sandin is inapplicable.
Judge Jones follows controlling Tenth Circuit caselaw
applying Sandin in the context of due-process
challenges to prison placements. See R&R at 6
(quoting Grissom v. Roberts, 902 F.3d 1162, 1169
(10th Cir. 2018) (applying factors announced in Estate of
DiMarco v. Wyo. Dep't of Corr., 473 F.3d 1134, 1342
(10th Cir. 2007)). Petitioner is also mistaken in arguing
that Sandin does not apply in § 2241 habeas
corpus cases. See, e.g., Grossman v.
Bruce, 447 F.3d 801, 805-06 (10th Cir. 2006); Wilson
v. Jones, 430 F.3d 1113, 1117 (10th Cir.
to Judge Jones' findings regarding the DiMarco
factors, Petitioner appears to challenge only one of them.
Petitioner asserts that he was placed in a disciplinary unit
of segregated or restricted housing at the Oklahoma State
Penitentiary (“OSP”), where the conditions were
sufficiently extreme to be considered “atypical”
under Sandin. See Obj'n at 1. To
support this argument, Petitioner submits an affidavit signed
by another prisoner in December 2009. See id. at 1,
4. The Court declines to consider new matter raised in
response to a magistrate judge's report. See Marshall
v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996)
(“Issues raised for the first time in objections to the
magistrate judge's recommendation are deemed
waived.”); see also ClearOne Commc'ns, Inc. v.
Biamp Sys., 653 F.3d 1163, 1184-85 (10th Cir. 2011);
Abdulhaseeb v. Calbone, 600 F.3d 1301, 1310 (10th
the Court concurs in Judge Jones' ultimate finding that
Petitioner has not shown he had a liberty interest in
avoiding confinement in extreme conditions under the
circumstances surrounding his return to ODOC custody in 2009.
See Rezaq v. Nalley, 677 F.3d 1001, 1013 (10th Cir.
2012) (“extreme conditions in administrative
segregation do not, on their own, ” create a liberty
interest). “[T]he proper approach is a fact-driven
assessment that accounts for the totality of conditions
presented by a given inmate's sentence and confinement,
” and the DiMarco factors may properly be used
to guide the inquiry. Id. at 1012. In this case,
Petitioner does not dispute Judge Erwin's findings that
his placement served a legitimate penological interest given
ODOC's determination that he presented a safety risk,
that his placement was regularly reviewed before the escape