                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   April 7, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT



 DONALD GILLISON,

               Petitioner - Appellant,                   No. 08-1453
          v.                                            (D. Colorado)
 TIM HAND, Colorado Board of                (D.C. No. 1:07-CV-00468-REB-MEH)
 Parole,

               Respondent - Appellee.


                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY


Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.



      Donald Gillison, a state prisoner appearing pro se, seeks to appeal the

district court’s denial of his 28 U.S.C. § 2241 petition. The matter is before this

court on Gillison’s request for a certificate of appealability (“COA”). 1 See

28 U.S.C. § 2253(c)(1)(A) (providing no appeal may be taken from a “final order


      1
       On December 16, 2008, Gillison filed a document titled “Petition for Writ
of Certiorari.” Three days later, Gillison filed a document requesting his appeal
be “stayed” until he could find someone to help him with his opening brief. On
December 22, 2008, this court entered an order provisionally granting Gillison
additional time to file an opening brief should he so desire. That order informed
Gillison, however, that this court had construed his “Petition for Writ of
Certiorari” as an opening brief. Because Gillison did not file any additional
documents with this court, we hereby construe his “Petition for Writ of
Certiorari” as both a request for a COA and an opening brief.
in a habeas corpus proceeding in which the detention complained of arises out of

process issued by a State court” unless the petitioner first obtains a COA); Montez

v. McKinna, 208 F.3d 862, 869 (10th Cir. 2000) (holding that the requirements of

§ 2253(c)(1)(A) apply when the state habeas petitioner is proceeding under

§ 2241). Because Gillison has not made a “substantial showing of the denial of a

constitutional right,” this court denies his request for a COA and dismisses this

appeal. 28 U.S.C. § 2253(c)(2) (providing that a COA “may issue . . . only if the

applicant has made a substantial showing of the denial of a constitutional right”). 2

      In his § 2241 petition, Gillison asserts the Colorado State Board of Parole

failed to follow appropriate procedures during its parole determination proceeding

in February 2007, erred in denying him parole, and denied him equal protection of

the laws when it treated him differently during parole proceedings because of his

“mental disabilities.” The matter was referred to a magistrate judge for initial

proceedings pursuant to 28 U.S.C. § 636(b)(1). The magistrate judge issued a

thorough and well-stated report and recommendation, recommending that the

district court deny Gillison’s § 2241 habeas petition. In particular, the magistrate

judge concluded that because the granting of parole is entirely discretionary under

the relevant Colorado statutory scheme, Gillison could not make out either a

procedural or substantive due process claim. Greenholtz v. Inmates of Neb. Penal


      2
       This court grants Gillison’s request to proceed on appeal in forma
pauperis.

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& Corr. Complex, 442 U.S. 1, 11-12 (1979); Malek v. Haun, 26 F.3d 1013, 1015

(10th Cir. 1994); Colo. Rev. Stat. § 17-2-201(4)(a), (9)(a). The magistrate judge

concluded Gillison’s equal protection claim failed because it contained nothing

more than vague and conclusory allegations. In particular, Gillison’s petition did

not describe, inter alia, his alleged disabilities or identify inmates who had been

treated differently. Brown v. Zavaras, 63 F.3d 967, 972 (10th Cir. 1995) (holding

that even pro se litigants must do more than advance conclusory allegations

regarding constitutional claims). Upon de novo review, the district judge adopted

the report and recommendation and denied Gillison’s petition.

      A COA may issue if Gillison “has made a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing,

Gillison 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. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotation

omitted). In evaluating a request for a COA, it is not the role of this court to

engage in a “full consideration of the factual or legal bases adduced in support of

the claims.” Id. Instead, this court undertakes “a preliminary, though not

definitive, consideration of the [legal] framework” applicable to each claim. Id.

at 338. Gillison is not required to demonstrate that his appeal will succeed to be




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entitled to a COA. He must, however, “prove something more than the absence of

frivolity or the existence of mere good faith.” Id. (quotations omitted).

      This court has reviewed Gillison’s appellate filings, the magistrate judge’s

report and recommendation, the district court’s order, and the entire record on

appeal pursuant to the framework set out by the Supreme Court in Miller-El and

concludes Gillison is not entitled to a COA. The district court’s resolution of

Gillison’s petition is not reasonably subject to debate and the claims he seeks to

raise on appeal are not adequate to deserve further proceedings. Accordingly,

Gillison has not “made a substantial showing of the denial of a constitutional

right” and is not entitled to a COA. 28 U.S.C. § 2253(c)(2).

      This court DENIES Gillison’s request for a COA and DISMISSES this

appeal.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




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