U.S. Court of Appeals for the Ninth Circuit, 2004

Koop v. Lehman

U.S. Court of Appeals for the Ninth Circuit · Decided August 12, 2004 · Callahan, Hall, Kleinfeld

105 F. App'x 935

Opinion of the Court

MEMORANDUM **

James Koop appeals the district court’s *936denial of his petition for habeas corpus, which was filed on a 28 U.S.C. § 2254 form, and which the district court determined to be a § 2254 petition. We affirm the district court.

Koop was granted a certificate of appealability (“COA”) on three issues: (1) whether 28 U.S.C. § 2241, rather than 28 U.S.C. § 2254, applies to his petition; (2) whether the 2000 prison disciplinary proceedings violated his First Amendment rights; and (3) whether the district court was correct in its Teague analysis.1 A COA is a jurisdictional requirement,2 and it “may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.”3 Although Ninth Circuit Rule 22-1 allows for a petitioner to broaden a COA, Koop did not make any motions to do so. Moreover, he has not made a substantial showing that, in the issues he briefed that were not included in the COA, any constitutional rights were denied.

Koop’s argument that 28 U.S.C. § 2241 should govern his petition is foreclosed by White v. Lambert,4 Under White, 28 U.S.C. “ § 2254 is the exclusive avenue for a state court prisoner to challenge the constitutionality of his detention,” even when the petition challenges only the execution of the sentence and not the underlying conviction itself.5 The district court was correct to analyze Koop’s petition under § 2254.

Koop filed a personal restraint petition in Washington state court arguing that his First Amendment rights had been violated during the 2000 prison disciplinary proceedings. The last reasoned state court decision, which rejected Koop’s argument, was not “contrary to, or ... an unreasonable application of’6 Turner v. Safley7 so we defer to that state court decision.

The third issue in the COA was whether the district court properly applied Teague in its analysis of “appellant’s due process challenge to the standard of proof.” Koop’s challenge was to the “any evidence” standard used in the 1993 prison disciplinary proceedings, in which, under Washington Administrative Code § 137-28-260(602), authorities determined that his “water stick” was a weapon. Because Koop does not have a “ ‘legitimate excuse’ ” for failing to raise this issue in the § 2254 habeas petition he filed in 1997, he cannot raise it now.8 We therefore need not decide whether the district court’s Teague analysis relating to the 2000 proceedings was correct.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the *936courts of this circuit except as provided by Ninth Circuit Rule 36-3.

. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

. Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).

. 28 U.S.C. § 2253(c)(2).

. 370 F.3d 1002, 1005 (9th Cir. 2004).

. Id. at 1007.

. 28 U.S.C. § 2254(d)(1).

. 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987).

. Hill v. Alaska, 297 F.3d 895, 898 (9th Cir. 2002) (quoting McCleskey v. Zant, 499 U.S. 467, 490, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991)).

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