                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                      March 23, 2010
                      UNITED STATES COURT OF APPEALS
                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court
                            FOR THE TENTH CIRCUIT


    NATHANIEL W. ELLIBEE,

                Plaintiff-Appellant,

    v.                                                    No. 09-3292
                                                 (D.C. No. 5:08-CV-03186-SAC)
    PAUL FELECIANO, JR., Chairman,                          (D. Kan.)
    Kansas Parole Board, in his official
    capacity; ROBERT SANDERS,
    Member, Kansas Parole Board, in his
    official capacity; PATRICIA BIGGS,
    Member, Kansas Parole Board, in her
    official capacity,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before KELLY, BALDOCK, and HOLMES, Circuit Judges.


         Plaintiff Nathaniel Ellibee, a Kansas state prisoner, filed a combined

complaint under 42 U.S.C. § 1983 and petition for a writ of habeas corpus under

28 U.S.C. § 2241. The complaint challenged the Kansas Parole Board’s


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
procedure and its decision to deny and defer Mr. Ellibee’s parole application.

Before service of process on the opposing parties, the district court dismissed the

complaint. We grant a Certificate of Appealability (COA) on the habeas aspect of

Mr. Ellibee’s case, and we reverse and remand the habeas and civil-rights issues

for further proceedings.

                                         I.

      Mr. Ellibee pleaded guilty to aiding and abetting second-degree murder,

attempted aggravated robbery, and conspiracy to commit aggravated robbery in

1992. He was sentenced to twenty-one years to life plus twenty-five years’

imprisonment. His sentence was upheld on direct appeal and his subsequent

25 U.S.C. § 2254 habeas corpus petition was denied. The Kansas Parole Board

held a hearing on September 9, 2007, denied parole, and deferred its next

consideration of Mr. Ellibee’s application for four years.

      Mr. Ellibee presented constitutional claims regarding the parole

proceedings to the Kansas Supreme Court, which summarily denied his petition.

He then filed his complaint and petition in federal court, asserting that the Board

considered unconstitutional criteria in acting on his parole application. His prolix

complaint encompassed a variety of theories: First Amendment retaliation;




                                         -2-
violation of the Equal Protection, Due Process, Confrontation, and Ex Post Facto

Clauses of the United States Constitution; and offenses under state law. 1

      The district court reviewed the petition and complaint pursuant to

28 U.S.C. § 1915A (providing for prompt review of “a complaint in a civil action

in which a prisoner seeks redress from a governmental entity” to determine

whether there are grounds for dismissal). After doing so, it directed Mr. Ellibee

to show cause why his complaint and petition should not be dismissed.

      Mr. Ellibee responded and the district court evaluated his filings. The

district court first properly differentiated between Mr. Ellibee’s 42 U.S.C. § 1983

civil-rights complaint and his 28 U.S.C. § 2241 petition. As the district court



1
      The district court summarized the claims as:

      He claims he was not treated the same as similarly situated inmates
      granted parole who had not pursued litigation, who had no
      community objections to parole, or who were female. He further
      complains the use of unchanging boilerplate reasons to deny him
      parole was both constitutionally insufficient and noncompliant with
      Kansas law. He contends defendants did not allow him to rebut
      evidence being considered, and prevented any meaningful review by
      not providing plaintiff with a record of his parole consideration
      hearing. Plaintiff further contends the . . . hearing was a sham
      because the outcome was predetermined, and claims the continuous
      denial of parole for pre-incarceration conduct . . . is contrary to the
      intent and public policy behind the Kansas parole statutes. Finally,
      plaintiff contends his [parole board] hearing was fundamentally
      unfair because defendant Biggs is married to the . . . County
      Attorney who prosecuted plaintiff.

R. at 360-61.

                                         -3-
recognized, success on a prisoner’s civil-rights claims would “mean[] at most new

eligibility review, which at most will speed consideration of a new parole

application.” Wilkinson v. Dotson, 544 U.S. 74, 82 (2005). In contrast, a § 2241

habeas petition is appropriate where a prisoner seeks “either immediate release

from prison or the shortening of his term of confinement.” Id. at 79 (quotation

omitted).

      Determining that Mr. Ellibee’s civil-rights complaint failed to state a claim

on which relief may be granted, the district court dismissed those claims. And it

dismissed the habeas petition without prejudice for failure to exhaust state

remedies and denied a request for COA. Mr. Ellibee appeals the dismissal.

                                           II.

      This court reviews de novo the district court’s dismissal of a prisoner’s

complaint under § 1915A(b)(1) for failure to state a claim. Young v. Davis,

554 F.3d 1254, 1256 (10th Cir. 2009). “We must accept all the well-pleaded

allegations of the complaint as true and must construe them in the light most

favorable to the plaintiff.” Id. (quotation omitted). “We review the complaint for

plausibility; that is, to determine whether the complaint includes enough facts to

state a claim to relief that is plausible on its face.” Id. (quotation omitted).

Because Mr. Ellibee is proceeding pro se, we construe his pleadings liberally.

See Straley v. Utah Bd. of Pardons, 582 F.3d 1208, 1210 n.1 (10th Cir. 2009),

cert. denied, 78 U.S.L.W. 3396 (U.S. Mar. 8, 2010) (No. 09-768).

                                           -4-
                            A. Civil Rights Complaint

      Mr. Ellibee’s 42 U.S.C. § 1983 complaint sets forth multiple and abstruse

claims of constitutional error. In its order dismissing the complaint, the district

court keyed on the claims of due-process violations. The Due Process Clause

does not guarantee an inmate a right to parole, although a state’s parole statutes

and regulations may create a liberty interest that is entitled to due-process

protection. See Malek v. Haun, 26 F.3d 1013, 1015 (10th Cir. 1994). The Kansas

Supreme Court, however, has held that the Kansas parole statute does not create a

liberty interest protected by the Due Process Clause of the Fourteenth

Amendment. See Gilmore v. Kan. Parole Bd., 756 P.2d 410, 415 (Kan. 1988)

(“K.S.A. 1987 Supp. 22-3717 does not create a liberty interest in parole.”); see

also Kan. Stat. Ann. § 22-3717(g) (“[T]he Kansas parole board may release on

parole those persons . . . who are eligible for parole.”) (emphasis added).

Because parole is discretionary in Kansas, Mr. Ellibee cannot invoke the

procedural guarantees of the Due Process Clause. See Olim v. Wakinekona,

461 U.S. 238, 250-51 (1983). Accordingly, the district court properly analyzed

Mr. Ellibee’s due-process claims.

      The district court’s order did not give similar attention to Mr. Ellibee’s

remaining claims. In particular, we note the lack of discussion related to

allegations that the parole board retaliated against him because of his litigation

activities on behalf of himself and other prisoners. “Prison officials may not

                                         -5-
retaliate against . . . an inmate because of the inmate’s exercise of his right of

access to the courts” and “[i]t is well established that prison officials may not

unreasonably hamper inmates in gaining access to the courts.” Smith v.

Maschner, 899 F.2d 940, 947 (10th Cir. 1990). This court and other federal

courts have recognized actionable constitutional claims in inmates’ allegations of

denial of parole in retaliation for filing lawsuits. E.g., Shabazz v. Askins,

980 F.2d 1333, 1335 (10th Cir. 1992) (reversing a district court’s dismissal of a

parole-retaliation claim as frivolous); Clark v. Ga. Pardons & Paroles Bd.,

915 F.2d 636, 639 (11th Cir. 1990) (holding allegation that parole was denied for

pursuing litigation stated a claim upon which relief can be granted); Serio v.

Members of La. State Bd. of Pardons, 821 F.2d 1112, 1114 (5th Cir. 1987)

(recognizing that a factually supported allegation that parole board denied parole

in retaliation for filing lawsuits against prison officials may state an equal

protection claim).

      To be sure, a complaint cannot withstand dismissal unless a plaintiff pleads

specific facts showing retaliatory motive. Peterson v. Shanks, 149 F.3d 1140,

1144 (10th Cir. 1998). But we must conclude that the district court erred in

dismissing the action without evaluating the allegations underlying Mr. Ellibee’s

retaliation claim. It is appropriate for the district court to determine in the first

instance the legal sufficiency of Mr. Ellibee’s listing of his litigation efforts and

allegations that a parole board member made extensive inquiries into his litigation

                                           -6-
activities. Though the district court was patently correct in its dismissal of the

due-process claims, on remand it should address the retaliation claim and any

other claim that has not yet received judicial scrutiny.

      We REVERSE and REMAND the § 1983 claims to the district court for

further proceedings consistent with this order and judgment.

                                B. Habeas Petition

       Mr. Ellibee’s filing also included a habeas petition under

28 U.S.C. § 2241. A state prisoner may appeal from the denial of federal habeas

relief under § 2241 only if the district court or this court first issues a COA.

28 U.S.C. § 2253(c)(1)(A); see Montez v. McKinna, 208 F.3d 862, 867 (10th Cir.

2000). When a habeas petitioner seeks to appeal a dismissal based on “procedural

grounds without reaching the prisoner’s underlying constitutional claim,” the

petitioner must demonstrate “that jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right and

that jurists of reason would find it debatable whether the district court was correct

in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Courts

are “allow[ed] and encourag[ed] to first resolve procedural issues,” id. at 485,

such as exhaustion.

      A § 2241 habeas petitioner is required to exhaust state remedies before

bringing a federal action. Montez, 208 F.3d at 866. As a general rule, the

“exhaustion requirement is satisfied if the federal issue has been properly

                                          -7-
presented to the highest state court, either by direct review of the conviction or in

a postconviction attack.” Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534

(10th Cir. 1994). The usual consideration is whether petitioner “raise[d] his

federal claim in the state courts at a time when state procedural law permits its

consideration on the merits. . . .” Bell v. Cone, 543 U.S. 447, 451 n.3 (2005).

      When a petitioner chooses to file a discretionary original proceeding in an

appellate court, however, the exhaustion analysis becomes more complex. In

Castille v. Peoples, 489 U.S. 346, 349-50 (1989) (quotation omitted), the

Supreme Court referred to the “familiar inquiry” of “[t]o what extent must the

petitioner who seeks federal habeas exhaust state remedies before resorting to the

federal court?” The Court noted that “[it] is reasonable to infer” exhaustion and

“to assume that further state proceedings would be useless” in instances in which

“the State has actually passed upon the claim.” Id. at 351.

      But a presumption of exhaustion is “not justified--where the claim has been

presented for the first and only time in a procedural context in which its merits

will not be considered unless ‘there are special and important reasons therefor.’”

Id. (quoting Pa. R.A.P. 1114). According to the Court, “[r]aising the claim in

such a fashion does not, for the relevant purpose, constitute ‘fair presentation.’”

Id. Thus, the answer to the exhaustion question is dependent on whether, under a

state’s procedural rules, it is fair to presume that the highest state court reviewed

the prisoner’s habeas claims.

                                          -8-
      Under the Kansas procedural framework, “[s]ubject to the provisions of

K.S.A. 60-1507 . . . any person in this state who is detained, confined, or

restrained of liberty . . . physically present in this state may prosecute a writ of

habeas corpus in the supreme court, court of appeals or the district court.”

Kan. Stat. Ann. § 60-1501. (Section 60-1507 requires persons attacking their

sentences to file a motion to vacate, set aside or correct the sentence in the court

that imposed the sentence.)

      Rule 9.01(a) of the Kansas Supreme Court Rules of Procedure provides

that, in cases of concurrent jurisdiction:

      Original jurisdiction of an appellate court will not ordinarily be
      exercised if adequate relief appears to be available in a district
      court. . . . In the event the appellate court finds that adequate relief
      is available in the district court, it may dismiss the action or order it
      transferred to the appropriate district court.

(emphasis added). And under Rule 9.01(c), “[i]f the court is of the opinion that

the relief should not be granted, it will deny the petition.” (emphasis added).

      Here, Mr. Ellibee presented his habeas petition to the Kansas Supreme

Court as an original proceeding and that court denied it, albeit summarily. The

court did not dismiss it. We may assume that the Kansas Supreme Court’s

disposition was knowing, deliberate, and sufficient to show that “the State has

actually passed upon the claim.” Castille, 489 U.S. at 351.

      Thus, Mr. Ellibee’s case is not amenable to the square application of

Castille that controlled previous Tenth Circuit cases. In Allen v. Zavaras,

                                             -9-
568 F.3d 1197, 1198 (10th Cir. 2009), a prisoner challenged his conviction with a

petition filed in the Colorado Supreme Court, though that court “is under no

obligation to consider an original habeas petition.” See Colo. Rev. Stat.

§ 13-45-101(1) (“If any person is committed or detained for any criminal or

supposed criminal matter, it is lawful for him to apply to the supreme court or

district courts for a writ of habeas corpus. . . .”). “The Colorado Supreme Court

elected not to consider the merits of [the] petition, denying it without comment

the day it was filed.” Allen, 568 F.3d. at 1203. See also Parkhurst v. Shillinger,

128 F.3d 1366, 1369 (10th Cir. 1997) (applying Castille and holding “petitioner’s

presentation of his claim to the Wyoming Supreme Court via a petition for writ of

certiorari was . . . ineffective to exhaust his state remedies”).

      In Bloom v. McKune, 130 F. App’x 229, 232 (10th Cir. 2005), an

unpublished case, this court determined that petitioner had not properly exhausted

his state remedies by filing habeas petitions directly with the Kansas Supreme

Court. The circumstances, however, were quite different from those of the instant

matter. First, the Kansas Supreme Court dismissed the Bloom petitioner’s habeas

petitions. Id. Second, the Bloom petitioner was attacking his original sentence,

not parole procedures. Thus, those petitions did not “conform to state rules”

delineated in Kan. Stat. Ann. § 60-1507. Bloom, 130 F. App’x at 232. This “is

likely why the Kansas Supreme Court summarily dismissed both [Bloom’s]

habeas petitions” and why his “presentation of claims in his habeas petitions to

                                          -10-
the Kansas Supreme Court did not give Kansas courts a fair opportunity to act,

and his claims were not properly exhausted.” Id.

      We conclude that the district court erred in dismissing Mr. Ellibee’s

application on exhaustion grounds without reaching the merits of his § 2241

arguments. As with the 42 U.S.C. § 1983 aspect of this case, his claims of denial

of constitutional rights are best considered by the district court in the first

instance. We GRANT Mr. Ellibee’s application for a COA, and REVERSE and

REMAND his 28 U.S.C. § 2241 petition to the district court for further

proceedings consistent with this order and judgment.


                                                 Entered for the Court



                                                 Bobby R. Baldock
                                                 Circuit Judge




                                          -11-
