FILED
                                               United States Court of Appeals
                   UNITED STATES COURT OF APPEALS      Tenth Circuit

                         FOR THE TENTH CIRCUIT                 September 29, 2020
                       _________________________________
                                                              Christopher M. Wolpert
                                                                  Clerk of Court
    STEVEN R. BARELA,

          Petitioner - Appellant,                    No. 20-8016
                                            (D.C. No. 1:19-CV-00011-NDF)
    v.                                                 (D. Wyo.)

    WYOMING DEPT. OF CORR.
    HONOR CONSERVATION CAMP
    WARDEN TODD MARTIN, in his
    official capacity,

          Respondent - Appellee.
                      _________________________________

                          ORDER AND JUDGMENT *
                       _________________________________

Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.
                _________________________________

         This appeal grew out of Mr. Steven Barela’s habeas action involving

two disciplinary proceedings. The first proceeding involved Mr. Barela’s

participation in a program involving dogs. Authorities suspected that Mr.

Barela had committed a disciplinary violation by feeding human food to a


*
      Mr. Barela seeks oral argument, but it would not materially help us
to decide the appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
So we have decided the appeal based on the record and the parties’ briefs.

      Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate under Fed. R. App. P. 32.1(a) and 10th Cir. R.
32.1(A).
dog. The second proceeding involved a disciplinary allegation that Mr.

Barela had threatened other inmates.

      Both proceedings resulted in disciplinary sanctions, which led Mr.

Barela to seek federal habeas relief based on a denial of due process,

violation of equal protection, and violation of the state constitution. The

district court awarded summary judgment to the respondent (Warden Todd

Martin), denied Mr. Barela’s motion for a certificate of appealability on

the due-process claims, and granted a certificate of appealability on the

equal-protection claims. Mr. Barela seeks a certificate on the due-process

claims and appeals the dismissal of his other claims.

1.    Construction of Mr. Barela’s Opening Appeal Brief

      His opening appeal brief consists of only a few words and contains

no argument. But he attaches several briefs from district court. Because he

is pro se, we liberally construe his opening appeal brief to include the

arguments in these attachments. See Hall v. Bellmon, 

, 1110

(10th Cir. 1991).

2.    The Due-Process Claims

      In his habeas petition, Mr. Barela claimed that prison authorities had

failed to provide due process in the two disciplinary proceedings. The

district court rejected these claims, reasoning that the disciplinary

sanctions had not involved a protected interest.



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      To appeal this ruling, Mr. Barela needs a certificate of appealability.

See Montez v. McKinna, 

, 867 (10th Cir. 2000) (concluding

that a certificate of appealability is required for state prisoners seeking to

appeal the denial of habeas relief filed under 28 U.S.C. § 2241). The test

for granting a certificate is generous, permitting a certificate if the

summary-judgment ruling was reasonably debatable. Slack v. McDaniel,

, 483–84 (2000). We must apply this generous test in light of

the standard of review, the test for summary judgment, and the underlying

requirements for due process.

      If we were to entertain the appeal on the due-process claims, we

would engage in de novo review of the award of summary judgment.

Watson ex rel. Watson v. Beckel, 

, 1239 (10th Cir. 2001). To

apply this standard, we would view the evidence favorably to Mr. Barela

and uphold the summary-judgment ruling only if the respondent had shown

a right to judgment as a matter of law and the absence of a genuine dispute

of material fact. Fed. R. Civ. P. 56(a).

      In an appeal, we would apply this standard to the underlying

substantive requirements for a due-process claim. These requirements

include the existence of an interest in life, liberty, or property. Templeman

v. Gunter, 

, 369 (10th Cir. 1994). Of these interests, the only




                                       3
conceivable possibility is a liberty interest. 1 So we must decide whether the

summary-judgment evidence suggested a possible liberty interest.

      We consider the existence of a liberty interest for the various

restrictions imposed on Mr. Barela. These restrictions started when

authorities put Mr. Barela in restricted housing during an investigation into

possible disciplinary charges. In the eventual disciplinary hearing,

authorities found Mr. Barela guilty and sanctioned him with lost time for

recreation and television.

      While in restricted housing, Mr. Barela attended a hearing to

consider his request for commutation. Because he remained in restricted

housing, he had to appear in restraints. His bid for commutation was

unsuccessful, and Mr. Barela attributes the outcome to his appearance in

restraints.

      Given the outcome of the disciplinary proceedings, we consider

whether a fact-finder could reasonably infer a liberty interest from the loss

of time for recreation or television, placement in restricted housing, or

prejudice to the bid for commutation. In our view, none of these

consequences could have triggered a liberty interest.



1
      Mr. Barela also contends that some of his property was lost. But the
disciplinary proceedings didn’t lead to an order depriving Mr. Barela of
any property. Any loss of property would have resulted only indirectly
from the disciplinary proceedings.

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      Virtually all prisoners are subject to numerous restrictions, and

violations typically carry a variety of sanctions. These sanctions affect a

liberty interest only when they restrain freedom significantly and

atypically “in relation to ordinary incidents of prison life.” Sandin v.

Connor, 

, 484 (1974). So we consider the typicality and

significance of the disciplinary sanctions ultimately imposed on Mr.

Barela.

      These sanctions included a temporary loss of television (15 days) and

recreation privileges (45 days). These are common sanctions in prisons, so

they couldn’t possibly trigger a liberty interest. See, e.g., Grady v. Garcia,

506 F. App’x 812, 814-15 (10th Cir. 2013) (unpublished) (affirming the

award of summary judgment on an inmate’s due-process claims regarding

loss of time for television and recreation); Marshall v. Morton, 421 F.

App’x 832, 838 (10th Cir. 2011) (unpublished) (stating that “restrictions

on an inmate’s . . . recreation privileges are not different in such degree

and duration as compared with the ordinary incidents of prison life to

constitute protected liberty interests under the Due Process Clause”).

      Mr. Barela was also put in restricted housing for fifteen days.

Placement in restricted housing can be considered significant and atypical

based on four factors:

      1.    the furtherance of a legitimate penological objective,

      2.    the existence of extreme conditions,

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      3.    the potential extension of the prisoner’s confinement, and

      4.    the absence of a time restriction on the placement in restricted
            housing.

DiMarco v. Wyoming Dep’t of Corrs., 

, 1342 (10th Cir.

2007).

      All of these factors weigh heavily against Mr. Barela. Authorities

had a legitimate reason to put Mr. Barela in restricted housing: They

needed to investigate the disciplinary charges. That investigation

proceeded quickly, so Mr. Barela ultimately spent only fifteen days in

restricted housing and wasn’t subjected to extreme conditions. Nor was his

confinement extended from the placement in restrictive housing. So no

fact-finder could reasonably infer a liberty interest from Mr. Barela’s

placement in restricted housing.

      His placement in restricted housing coincided with the timing of Mr.

Barela’s commutation hearing. So he had to appear in restraints, which he

blames for the ultimate decision to deny commutation.

      But commutation is a discretionary remedy that requires a

recommendation from the Parole Board and a favorable decision from the

Governor. W YO . S TAT . A NN . § 7-13-401(f); W YO . C ONST . art. IV, § 5.

Given the discretion of the Parole Board and the Governor, any effect on

the commutation hearing would not trigger a liberty interest. See, e.g.,

Connecticut Bd. of Pardons v. Dumschat, 

(1981) (concluding

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that the Connecticut commutation statute does not create a protected

liberty interest because the statute does not require commutation); Parker

v. Dowling, 664 F. App’x 681, 682 (10th Cir. 2016) (unpublished) (stating

that the possibility of commutation did not create a liberty interest because

commutation was discretionary).

                                    * * *

      No reasonable jurist could find a protected liberty interest based on

the summary-judgment evidence. As a result, no reasonable jurist could

debate the correctness of the district court’s award of summary judgment

on the due-process claims. We thus deny a certificate of appealability on

these claims.

3.    The Equal-Protection Claims

      Mr. Barela also sought habeas relief based on a denial of equal

protection. The district court granted a certificate of appealability on these

claims, so we review them for the ultimate disposition.

      The disposition largely turns on the remedies that Mr. Barela seeks

for the alleged denial of equal protection. The remedy of habeas corpus

ordinarily serves to require release from illegal confinement, attack future

confinement, or shorten the existing confinement. See Preiser v.

Rodriguez, 

, 487 (1973) (release from present confinement or

attack future confinement); Palma-Salazar v. Davis, 

, 1035

(10th Cir. 2012) (shorten confinement).

                                      7
      But Mr. Barela didn’t seek any of these remedies for the denial of

equal protection. He instead requested expungement of his disciplinary

convictions, return of his personal property, reinstatement to his prior

position in the dog program, different housing, prison employment,

compensatory damages, and punitive damages. These are remedies

available in a civil rights suit 2 but not in a habeas action. See 

(concluding that damages are available in civil rights suits, not

habeas actions); Davis v. Fox, 701 F. App’x 715, 716 (10th Cir. 2017)

(unpublished) (concluding that a claim for retaliatory impoundment of

personal property cannot be brought in a habeas petition); 

–36 (concluding that habeas relief was unavailable to

obtain a change in prisoner housing). 3

      As noted above, Mr. Barela also seeks expungement of his

disciplinary convictions. Expungement could conceivably boost his



2
       The district court declined to recharacterize the habeas action as a
civil rights suit, and recharacterization could have saddled Mr. Barela with
unintended consequences. For example, he would have had to pay a higher
filing fee in district court. See 28 U.S.C. § 1914(a). And dismissal for
particular reasons could have restricted future opportunities to proceed in
forma pauperis. 28 U.S.C. § 1915(g). Mr. Barela doesn’t challenge the
district court’s decision to leave the action as one for habeas rather than
recharacterize the action as a civil rights suit.
3
      Like a change in housing, reinstatement in the dog program and
prison employment involve only changes in confinement conditions, not
the duration of confinement. So reinstatement in the dog program and
prison employment are not available habeas remedies.
                                       8
chances for a discretionary remedy like commutation or parole. But these

remedies are discretionary. See pp. 6–7, above (commutation); W YO .

C ONST . art. 3, § 53; W YO . S TAT . A NN . § 7-13-402(2) (parole). Given the

discretionary nature of these remedies, expungement wouldn’t necessarily

quicken Mr. Barela’s release. So expungement wouldn’t be an available

remedy in this habeas action. Wilkinson v. Dotson, 

, 82 (2005).

                                      * * *

      Given the unavailability of the requested remedies in a habeas action,

we affirm the award of summary judgment on the equal-protection claims.

4.    Violation of the State Constitution

      Mr. Barela also alleges violation of the state constitution. Parts of

these allegations involved a denial of due process; parts involved a denial

of equal protection. For all of these allegations, the district court awarded

summary judgment to the respondent. We agree with this ruling because

habeas relief cannot be based on violation of the state constitution. Davis

v. Reynolds, 

, 1109 n.3 (10th Cir. 1989).

5.    Conclusion

      We deny a certificate of appealability on the due-process claims and

affirm the award of summary judgment to the respondent on the claims




                                        9
involving a denial of equal protection and violation of the state

constitution.

                                      Entered for the Court



                                      Robert E. Bacharach
                                      Circuit Judge




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