                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                         October 7, 2005
                       UNITED STATES COURT OF APPEALS
                                                                          Clerk of Court
                                   TENTH CIRCUIT



 ALVIN PARKER,

                  Petitioner-Appellant,                  No. 05-6124
          v.                                           (W.D. of Okla.)
 MARTY SIRMONS, Warden,                           (D.C. No. CV-04-1718-T)

                  Respondent-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY                 *




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




      Petitioner-Appellant Alvin Parker, a state prisoner appearing pro se, filed a

petition for writ of habeas corpus in the United States District Court for the

Western District of Oklahoma. Parker sought relief under 28 U.S.C. § 2254,

which the court construed as a request for relief under 28 U.S.C. § 2241. Upon


      *
         This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         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.
the magistrate’s recommendation, the district court denied the petition. The

district court also denied Parker’s request for a certificate of appealability (COA).

See 28 U.S.C. § 2253(c)(1) (requiring a petitioner to obtain COA before appealing

a district court's final order in a habeas corpus proceeding challenging state

detention). Parker now seeks to obtain a COA from this court based on the same

grounds that were denied by the district court. Because Parker has not made a

substantial showing of the denial of a constitutional right, we deny a COA and

dismiss the appeal.

                                   I. Background

      Parker was tried in Oklahoma state court for the 1985 shooting death of an

Oklahoma City police officer. After a retrial in 1990, Parker was convicted of

second-degree murder after a former felony conviction. He was sentenced to 199

years imprisonment. He appealed, and the Oklahoma Court of Criminal Appeals

affirmed his conviction in 1994.

      In 2004, Parker petitioned for a writ of habeas corpus in federal district

court based on his challenge to information considered by the Oklahoma Pardon

and Parole Board in a parole hearing conducted on December 7, 2004. Parker

alleged that, although the Board was not required to provide reasons for its

decision and did not do so here, its decision to deny Parker’s parole request was

based solely on the fact that his victim was a police officer. In support of his


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argument, Parker alleged (1) that he had completed nearly 20 years of continuous

incarceration for his second-degree murder conviction while the average time to

make parole for prisoners serving life sentences for first-degree murder in the

Oklahoma prison system was twenty-three and a half years; (2) that he had an

“outstanding” institutional work/misconduct record (only two misconduct reports

for refusal to submit to substance abuse testing) and had been on the waiting list

for parole consideration for several years; (3) that his family and friends had

submitted letters offering him housing, support, and employment; and (4) that the

facility’s parole investigator had recommended that commutation be granted.

Based on these alleged facts, Parker contends the Board must have considered the

fact that his victim was a police officer and, further, it must have denied his

request for parole solely on that basis.

      Parker did not explain how his allegations, if true, would constitute a

violation of a specific federal right. He simply claims that “[a]ll confidence in

the outcome of petitioner’s parole hearing is undermined by this simple

observation.” See Habeas Pet. at 6.

      Reading the petition liberally, the magistrate judge construed Parker’s

allegations as due process claims. The magistrate judge issued a report and

recommendation, which discussed in detail the standards for both procedural and

substantive due process and determined that Parker did not present a cognizable


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claim for relief under either theory. Parker timely filed objections to the report.

The district court agreed with the magistrate that Parker had failed to show a

basis for habeas relief and found Parker had provided no persuasive arguments in

his objections. Accordingly, the district court issued an order denying Parker’s

habeas petition. Parker timely applied for a COA in the district court, which

denied his application. Parker applied to this court for a COA. Accompanying

his application was a motion for leave to proceed in forma pauperis pursuant to 28

U.S.C. § 1915.

                                    II. Analysis

      This court may issue a COA only if Parker “has made a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Parker will not

succeed unless he “shows, at least, that jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000); United States v. Springfield, 337

F.3d 1175, 1177 (10th Cir. 2003). In addressing this question, we may not engage

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

claims,” but rather we are limited to conducting “an overview of the claims in the

habeas petition and a general assessment of their merits.” Miller-El v. Cockrell,

537 U.S. 322, 336 (2003). After conducting an overview of the claims raised, we




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find the resolution by the magistrate judge, as adopted by the district court, to be

undebatable.

      Before reviewing Parker’s claims and the decisions reached below, it

should be noted that, although Parker styled his original petition for habeas

corpus as a request for relief under 28 U.S.C. § 2254, both the magistrate and

district court correctly construed it as a request for relief arising under § 2241.

Section 2254 governs challenges to the validity of a conviction and sentence,

whereas § 2241 governs challenges to the execution of the sentence. See Hamm

v. Saffle, 300 F.3d 1213, 1216 (10th Cir. 2002). Here, Parker was challenging the

denial of his request for parole, which clearly falls under the latter category. See

United States v. Furman, 112 F.3d 435, 438 (10th Cir. 1997). Construed

liberally, Parker’s petition alleged that the State of Oklahoma violated his

Fourteenth Amendment rights to procedural and substantive due process.

A. Procedural Due Process Claim

      For the reasons stated by the court below, we find that Parker has not made

a substantial showing of a denial of his right to procedural due process. First, the

United States Supreme Court has declared that “[t]here is no constitutional or

inherent right of a convicted person to be conditionally released before the

expiration of a valid sentence.” Greenholtz v. Inmates of Neb. Penal & Corr.

Complex, 442 U.S. 1, 7 (1979). Second, although a state may affirmatively create


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a liberty interest by enacting mandatory statutes that limit the parole board’s

discretion, both the Tenth Circuit and the Oklahoma Supreme Court have made

clear that Oklahoma has not done so. Shirley v. Chestnut, 603 F.2d 805, 807

(10th Cir. 1979) (“[T]he Oklahoma statutory scheme . . . does no more than create

a parole system, which in the Supreme Court's view as expressed in Greenholtz

does not establish a liberty interest.”); Shabazz v. Keating, 977 P.2d 1089, 1093

(Okla. 1999) (“[T]here is no protectible liberty interest in an Oklahoma

parole. . . . No due process strictures can be applied to test the permissible

parameters of the parole process.”). Indeed, Parker concedes this fact in his

present application for COA. See Pet’r. Applic. at 2. Finally, without a liberty

interest in parole, there is no entitlement to due process protection. See Fristoe v.

Thompson, 144 F.3d 627, 630 (10th Cir. 1998). Therefore, Parker’s allegation

that the Board considered the identity or status of his victim is insufficient, even

if true, to present a cognizable constitutional claim.

B. Substantive Due Process Claim

      For reasons similar to those provided by the court below, we also find that

Parker has failed to make a substantial showing of a violation of his substantive

due process rights. Parker’s claim, liberally construed from his habeas petition

and expanded in his brief before this court, is that the Board based its decision to

deny his parole request on an arbitrary or constitutionally impermissible reason.


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While no Tenth Circuit published opinion has addressed a substantive due process

challenge to the denial of parole of an Oklahoma inmate, the magistrate judge and

district court below rejected Parker’s claim based on two alternative

reasons—each one sufficient alone to support the conclusion reached.

      First, the majority of other circuits to address the question have found that

the requirement of a state-created liberty interest is the threshold requirement for

any due process claim—whether substantive or procedural. See, e.g., Johnson v.

Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997), cert. denied, 522 U.S. 995 (1997)

(“[B]ecause Texas prisoners have no protected liberty interest in parole they

cannot mount a challenge against any state parole review procedure on procedural

(or substantive) Due Process grounds.”); Jones v. Georgia State Bd. of Pardons &

Paroles, 59 F.3d 1145, 1150 (11th Cir. 1995) (rejecting a substantive due process

claim because the inmate had no due process protected liberty interest in parole);

Bailey v. Gardebring, 940 F.2d 1150, 1157 (8th Cir. 1991) (affirming the denial

of a substantive due process claim because the inmate had no liberty interest in

parole and no fundamental right to parole). Additionally, the Oklahoma Supreme

Court has confirmed that Oklahoma has not created a liberty interest in parole for

purposes of substantive due process. See Shabazz, 977 P.2d at 1093 (rejecting

Oklahoma prisoner’s substantive due process claim based on parole board’s

consideration of an improper letter from prosecuting attorney because “[t]he


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parole function neither leads to nor may ripen into a liberty interest”) (emphasis

in original).

       Parker argues that this reasoning of the magistrate judge, as adopted by the

district court, constituted improper reliance upon non-binding decisions without

looking at their reasons. We disagree. The discussion of Parker’s substantive due

process claim included the specific holdings of the other circuits, stating the

reason for their denial of such claims—lack of liberty interest as required in the

Supreme Court’s Greenholtz decision. Further, that reason was discussed at

length in the preceding analysis of Parker’s procedural due process claim, and it

was unnecessary to repeat it in full.

       Moreover, this court need not ultimately decide here whether to follow the

majority of other circuits on the question of whether a liberty interest is required

for a prisoner to bring a substantive due process claim. The second reason for

denying Parker’s claim, which is dispositive in this case, is that Parker has failed

to allege or show that he was denied parole for arbitrary or otherwise

constitutionally impermissible reasons. The Oklahoma Supreme Court has

declared that, in Oklahoma, the parole board is the “sole judge of what materials

may be considered in the decision-making process.” See Shabazz, 977 P.2d at

1094 (emphasis in original). Although Parker repeatedly refers to the

“impermissible factor” that his victim was a police officer, this conclusory


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characterization cites to no authority to show that the Constitution precludes its

consideration in parole proceedings. Parker devotes one sentence to this problem

at the end of the brief filed with this court. He contends that the fact does not

bear a “rational relationship to an evaluation of petitioner’s likelihood to adjust

successfully to release status.” See Pet’r. Br. at 16.b. We disagree.

      For purposes of this inquiry, we may assume that Petitioner’s allegation is

true—that the Board based its decision to deny parole solely on the factor that his

victim was a police officer and did not also consider other factors such as

Parker’s prison misconduct reports for refusal to submit to substance abuse

testing. Even under that assumption, the fact that a prisoner was convicted of

killing a police officer, as opposed to a civilian citizen, shows a lack of respect

for authority and a unique danger to society that bears a rational relationship to

his likelihood to adjust to society upon release. It is certainly not so beyond the

realm of that consideration as to be declared “arbitrary.” See County of

Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998) (emphasizing that the

“touchstone of due process is protection of the individual against arbitrary action

of government”—whether procedural, through denial of fundamental fairness, or

substantive, through “the exercise of power without any reasonable justification

in the service of a legitimate governmental objective”) (internal citations and

quotation marks omitted). Thus, absent any further showing that the


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consideration of that fact was itself a violation of a fundamental right or

implicated another constitutional provision, Parker’s claim fails.

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

right,” 28 U.S.C. § 2253(c)(2), and “jurists of reason” would not find the

magistrate judge’s conclusions or the district court’s decision to adopt these

conclusions debatable. Accordingly, we DENY COA and DISMISS the case. We

GRANT Parker’s motion to proceed in forma pauperis.



                                                Entered for the Court


                                                Timothy M. Tymkovich
                                                Circuit Judge




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