F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          January 4, 2006
                                TENTH CIRCUIT                           Elisabeth A. Shumaker
                                                                           Clerk of Court


 CHRISTOPHER JOHN MOORE,
              Petitioner-Appellant.                       No. 05-6097
 v.                                               (D.C. No. 04-CV-1270-M)
 SAM CALBONE, Warden,                                    (W.D. Okla.)
              Respondent-Appellee.



                                      ORDER


Before EBEL, McKAY, and HENRY, Circuit Judges.




      This is a pro se prisoner appeal. Although Petitioner initially brought this

action pursuant to 28 U.S.C. § 2254, the district court construed the petition as

being properly raised under 28 U.S.C. § 2241. Because Petitioner challenges the

execution of his sentence rather than the validity of the underlying conviction, we

also recognize this petition under § 2241. In his application to the district court,

Petitioner challenged a loss of “good time” credits he had earned for his

satisfactory performance in prison. Those credits were taken away as a result of

the prison disciplinary proceeding. Specifically, Petitioner was charged with

fraternizing with a prison guard. The alleged fraternization occurred when a
female guard came to Petitioner’s cell and gave him a softball glove which he

agreed to “break in” for her. Following the prison disciplinary proceeding,

Petitioner brought his claim to the district court where he maintained that there

was insufficient evidence to find him guilty of the disciplinary infraction. In his

Report and Recommendation (R&R), the magistrate judge disagreed with

Petitioner and recommended that the district court deny the petition. The district

court adopted the magistrate judge’s R&R in full and denied Petitioner’s request

for a certificate of appealability. Petitioner now renews his request for a

certificate of appealability with this court. The issues which he raises on appeal

are identical to those brought before the district court.

      In order for this court to grant a certificate of appealability, Petitioner must

make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To do so, Petitioner must demonstrate “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, 

,

484 (2000) (internal citation and quotation omitted).

      We have carefully reviewed Petitioner’s brief, the district court’s

disposition, and the record on appeal. Nothing in the facts, the record on appeal,

or Petitioner’s filing raises an issue which meets our standards for the grant of a


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certificate of appealability. For substantially the same reasons as set forth by the

magistrate judge’s R&R which the district court adopted in its April 5, 2005

Order, we cannot say that it is “debatable whether the district court was correct in

its procedural ruling.” 

we say “that reasonable jurists could debate

whether the petition should have been resolved in a different manner.” 

DENY Petitioner’s request for a certificate of

appealability and DISMISS the appeal.

                                               Entered for the Court



                                               Monroe G. McKay
                                               Circuit Judge




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