                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  April 11, 2011
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                                  TENTH CIRCUIT



 NOBLE L. JOHNSON,

                 Petitioner-Appellant,                   No. 10-3329
          v.                                             (D. of Kan.)
 KANSAS PAROLE BOARD,                           (D.C. No. 10-CV-3126-SAC)

                 Respondent-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges. **


      Noble Johnson, a state prisoner proceeding pro se, 1 seeks a certificate of

appealability (COA) to appeal the district court’s dismissal of his habeas petition

under 28 U.S.C. §§ 2241 and 2254. After careful review of the record, we

conclude that Johnson has not exhausted his remedies under state law and that his

claims fail on the merits.

      *
         This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      1
        Because Johnson is proceeding pro se, we construe his filings liberally.
See Van Deelan v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
      Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we deny his request

for a COA and dismiss this appeal.

                                  I. Background

      Johnson is currently serving two consecutive sentences of fifteen years to

life at the Lansing Correctional Facility. He has appeared before the Kansas

Parole Board (KPB) numerous times and each time been denied parole. In its

most recent denial, the KPB exercised its statutory prerogative under K AN . S TAT .

A NN . § 22-3717 to defer the next parole hearing ten years, rather than the usual

period of one or three years. The KPB explained its decision as follows:

      After considering all statutory factors, the decision of the [KPB] is:
      Pass to March 2017. Pass Reasons: serious nature/circumstances of
      crime; violent nature of crime; objections to parole. Extended Pass
      Reasons: Inmate has been sentenced for a class A or B felony or an
      off grid felony and the board makes a special finding that a
      subsequent parole hearing should be deferred for ten (10) years,
      because it is not reasonable to expect that parole would be granted at
      a hearing if held before then, for the reasons indicated below: inmate
      needs continued structure and community resources cannot provide
      sufficient support to meet these needs and to provide for public
      safety.

Johnson v. Kan. Parole Bd., No. 99,552, 191 P.3d 1136, 2008 WL 4239117, at *1

(Kan. Ct. App. Sept. 12, 2008) (quoting the KPB decision).

      Johnson challenged the KPB disposition in Kansas state court. The court

denied his petition. Johnson unsuccessfully appealed the denial to the Kansas

Court of Appeals (KCA).




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      He then brought this habeas petition in federal district court. The district

court found that Johnson did not exhaust his remedies in state court and that, in

any case, Johnson failed to state a viable federal claim. The court issued an order

to show cause why the petition should not be dismissed. Johnson responded by

filing a motion for reconsideration. The court denied the motion and dismissed

the claim. The court subsequently denied Johnson’s request for a COA.

      Johnson now seeks a COA from this court to enable him to appeal the

denial of his habeas petition. He raises the following constitutional arguments on

appeal: (1) the KPB proceedings violated the Due Process Clause, (2) the KPB’s

application of § 22-3717 to Johnson violated the Ex Post Facto Clause, and

(3) the KPB decision violated the Equal Protection Clause. He also requests to

proceed in forma pauperis.

                                  II. Discussion

      A challenge to the denial of parole is an attack on the execution of the

sentence and is properly brought under § 2241, rather than § 2254. Henderson v.

Scott, 260 F.3d 1213, 1214 (10th Cir. 2001); see also Powell v. Ray, 301 F.3d

1200, 1201 (10th Cir. 2002). We will therefore treat the petition as arising under

§ 2241.

      Without a COA, we lack jurisdiction to consider the merits of a state

prisoner’s habeas appeal. 28 U.S.C. § 2253(c)(1)(A). We may issue a COA only

if “the applicant has made a substantial showing of the denial of a constitutional

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right.” 28 U.S.C. § 2253(c)(2). To make the requisite showing, Johnson 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) (quotations omitted).

      Having thoroughly reviewed the record, we conclude Johnson is not

entitled to a COA on any of the issues he seeks to pursue on appeal. As a

threshold matter, we recognize Johnson did not make the equal protection claim

in the district court. This claim is therefore waived. As a general rule, we will

not consider issues on appeal that were not raised in the habeas petition before the

district court. See Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir. 1999); see also

Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 721–22 (10th Cir. 1993).

      As for Johnson’s remaining claims, we find they must fail for substantially

the same reasons articulated by the district court.

      A. Exhaustion

      The district court concluded that Johnson failed to exhaust his remedies in

state court and, further, that he made no showing of cause and prejudice to excuse

procedural default. We agree.

      Before filing a federal habeas corpus petition, an inmate must exhaust the

available state remedies. See Coleman v. Thompson, 501 U.S. 722, 730–31

(1991). “The exhaustion requirement is satisfied if the federal issue has been


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properly presented to the highest state court . . . .” Dever v. Kansas State

Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). It appears from the record that

Johnson did not seek timely review of the KCA decision to the Kansas Supreme

Court. He has therefore failed to exhaust his state remedies.

      Generally, when a petitioner fails to exhaust his state court remedies, the

federal habeas petition should be dismissed to allow the petitioner to return to

state court to pursue those remedies. See Demarest v. Price, 130 F.3d 922, 939

(10th Cir. 1997). But the Supreme Court has held if “the petitioner failed to

exhaust state remedies and the court to which the petitioner would be required to

present his claims in order to meet the exhaustion requirement would now find the

claims procedurally barred,” the petitioner’s claims are procedurally defaulted for

purposes of federal habeas corpus review. Coleman, 501 U.S. at 735 n.1; see also

Dulin v. Cook, 957 F.2d 758, 759 (10th Cir. 1992). Federal habeas corpus review

of procedurally barred issues is precluded “unless the prisoner can demonstrate

cause for the default and actual prejudice as a result of the alleged violation of

federal law, or demonstrate that failure to consider the claims will result in a

fundamental miscarriage of justice.” Coleman, 501 U.S. at 750.

      Because the KCA decision was issued in 2008, it is clear Johnson’s appeal

to the Kansas Supreme Court is now time-barred. Johnson’s claims are thus

procedurally defaulted for purposes of federal habeas corpus review. We must

therefore consider whether Johnson has offered grounds to excuse the procedural


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default. Johnson’s sole argument on this point is that his attorney in the state

appeal failed to notify him of the KCA’s decision and that he only learned of the

decision a year and a half after it was published. In other words, Johnson

contends ineffective assistance of counsel was the cause of his default. But

prisoners have no constitutional right to counsel in post-conviction applications

for relief. See id., 501 U.S. at 757. And where the petitioner had no right to

counsel in the state proceeding, “any attorney error that led to the default of [the

petitioner’s] claims in state court cannot constitute cause to excuse the default in

federal habeas.” Id. We therefore find that Johnson has not shown cause and

prejudice for his procedural default and that his claims are barred.

      B. Failure to State a Federal Claim

      Although the district court found Johnson’s claims were procedurally

barred, it also dismissed the due process and ex post facto claims on the merits.

We agree with the court’s conclusions.

      1. Due Process Claims

      Johnson argues the KPB denied him due process because it relied on

objections to his parole without specifying the source and basis of the objections

and because it acted in an arbitrary and capricious manner.

      To make a claim for denial of due process in violation of the Fourteenth

Amendment, a plaintiff must show the deprivation of a protected liberty or

property interest. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569


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(1972). Although the Due Process Clause does not grant a prisoner the right to

parole, a state’s parole statutes may, through the use of mandatory language,

create a liberty interest that is entitled to due process protection. See Malek v.

Haun, 26 F.3d 1013, 1015 (10th Cir. 1994). But the Kansas Supreme Court has

held the Kansas parole statute is discretionary; it therefore does not create a

protected liberty interest. See Gilmore v. Kan. Parole Bd., 756 P.2d 410, 415

(1988) (“[Section] 22-3717 does not create a liberty interest in parole.”); see also

§ 22-3717(g) (“[T]he Kansas parole board may release on parole those

persons . . . who are eligible for parole.” (emphasis added)). Absent a liberty

interest in parole, Johnson is not entitled to due process protection. See Malek,

26 F.3d at 1016.

      2. Ex Post Facto Claim

      Next, Johnson contends the KPB’s application of § 22-3717 to him violated

the Ex Post Facto Clause, because the statute was only amended after his

conviction to allow a ten-year deferral of parole hearings.

      “One function of the Ex Post Facto Clause is to bar enactments which, by

retroactive operation, increase the punishment for a crime after its commission.”

Garner v. Jones, 529 U.S. 244, 249–50 (2000). But “[w]hen the amendment

creates only the most speculative and attenuated possibility of increasing the

measure of punishment, it is insufficient under any threshold to violate the Ex




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Post Facto Clause. Henderson v. Scott, 260 F.3d 1213, 1215 (10th Cir. 2001)

(quotations omitted) .

      The Supreme Court has declined to “adopt a single formula for identifying

which legislative adjustments, in matters bearing on parole, would survive an ex

post facto challenge.” Garner, 529 U.S. at 252. Instead, the Supreme Court has

identified the following factors as relevant to the inquiry: (1) whether the parole

board has discretion to determine if an inmate is eligible for release, id. at 253;

(2) whether the parole board has the authority to tailor the frequency of the parole

hearings to a particular inmate’s circumstances, Cal. Dep’t of Corr. v. Morales,

514 U.S. 499, 511 (1995); (3) whether the challenged statute permits an expedited

parole review in the event the inmate’s circumstances change, Garner, 529 U.S. at

254; (4) whether an administrative appeal is available, Morales, 514 U.S. at 513;

and (5) the likelihood the plaintiff would be released on parole if he received a

hearing sooner than his next scheduled hearing, see id. at 510–11.

      In a prior unpublished decision, this court found § 22-3717 satisfied the

first four factors listed above. See Berry v. Scafe, 16 F. App’x 948, 950–52 (10th

Cir. 2001) (noting that, under the statute, the KPB has discretion to grant parole

and to set the date of the next parole hearing, and further observing that the

statute provides for expedited review and appeal). Although this order and

judgment is not binding on us, it is persuasive. We also find the fifth factor

weighs against Johnson’s claim. Because Johnson was convicted of two violent


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murders and is currently serving two consecutive fifteen-year-to-life sentences, it

is unlikely he would receive parole even if he were granted a hearing in three

years. See Morales, 514 U.S. at 510 (upholding a similar California statute after

observing “the likelihood of release on parole is quite remote” for those prisoners

who have been convicted of “more than one offense which involves the taking of

a life.” (quotation omitted)). Accordingly, we conclude § 22-3717, as applied to

Johnson, does not violate the Ex Post Facto Clause.

                                 III. Conclusion

      For the foregoing reasons we AFFIRM the dismissal of Johnson’s habeas

petition. We also GRANT Johnson’s motion to proceed in forma pauperis on

appeal.

                                                    ENTERED FOR THE COURT

                                                    Timothy M. Tymkovich
                                                    Circuit Judge




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