                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                            FOR THE TENTH CIRCUIT                         December 10, 2018
                        _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
 KENNETH R. MARSHALL,

       Petitioner - Appellant,
                                                                   No. 17-7083
 v.                                                   (D.C. No. 6:17-CV-00200-RAW-KEW)
                                                                   (E.D. Okla.)
 KAMERON HARVANEK, Warden,

       Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before BRISCOE, MATHESON, and EID, Circuit Judges.
                  _________________________________

      Pro se state prisoner Kenneth R. Marshall seeks a certificate of appealability

(COA) to appeal the district court’s dismissal of his petition for habeas relief under

28 U.S.C. § 2241.1 We deny Marshall’s request for a COA and dismiss the appeal.

                                           I.

      Marshall is serving a life sentence in Oklahoma for a first-degree murder

conviction. On January 27, 2017, a Nowata County District Court judge entered an

order denying Marshall’s application for postconviction release. But the judge left


      *
         This order is not binding precedent, except under the doctrines of law of the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.
      1
       Because Marshall is proceeding pro se, “we construe his filings liberally.”
Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).
the final sentence of the order unfinished. On February 1, 2017, Marshall filed a

motion for clarification and asked the court to complete the unfinished sentence with

language directing the Department of Corrections to discharge him if he had served

forty-five years of his life sentence.

       On February 2, 2017, the court entered an order that incorporated the requested

language. But on February 10 the court entered an amended order stating “that the

order filed January 27, 2017 . . . was proper,” ROA at 94, that “the order filed on

February 2, 2017 was incorrect in its assignment of a forty-five (45) year term,” id.,

and that the February 2 order “should be stricken from the record.” Id.

       After unsuccessfully seeking mandamus relief from the Atoka County District

Court and the Oklahoma Court of Criminal Appeals, Marshall filed a motion in

federal district court for habeas review under 28 U.S.C. § 2241. He also asked the

district court to hold an evidentiary hearing. Marshall believed he was entitled to a

hearing to prove that the Oklahoma Department of Corrections engaged in ex parte

communications with the Nowata County judge. The court denied the motion and

dismissed the petition.

       In this appeal Marshall contends that the district court erred in denying his

motion for an evidentiary hearing. He also seeks a COA to challenge the district

court’s dismissal of his petition. As we conclude below, there is “nothing in the

record [to] indicate[] [Marshall] is entitled to any relief.” Wilson v. Oklahoma, 335

F. App’x 783, 784 (10th Cir. 2009). Consequently, “the denial of [the evidentiary]

hearing[] was not error.” Id.

                                               2
      Additionally, we note that Marshall filed a motion to supplement the appellate

record with a certified copy of the February 2, 2017 order. The certified copy

indicates the February 2, 2017 order was filed with the Oklahoma Court of Criminal

Appeals on February 6, 2017. We GRANT Marshall’s motion to supplement the

record. We have also considered his supplemental authorities.

                                           II.

      To obtain appellate review of the district court’s dismissal of his petition,

Marshall must acquire a COA. To acquire a COA, Marshall must make a “substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

Specifically, he must demonstrate “that reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or wrong.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000). Marshall has failed to make this showing.

      Below, the district court properly framed the question as whether Marshall has

established “he is being held in state custody in violation of the United States

Constitution or other federal law.” Dist. Ct. Op. at 4. The district court then found

that Marshall’s life sentence is not excessive under federal law.2 Reasonable jurists


      2
        On appeal Marshall contends that the district court improperly construed his
argument. Specifically, he argues that the crux of his position below was that the
February 10 order is invalid and that the February 2 order is the only valid order.
The district court likely did not address this argument because Marshall has failed to
successfully tie it to the denial of a federal right. Marshall contends that the
Oklahoma state courts’ treatment of these orders denied him substantive and
procedural due process. But under Oklahoma law, “[d]efendants sentenced to life
imprisonment . . . remain under that sentence all of their days, and obtain their liberty
only after a recommendation from the Pardon and Parole Board, and then only

                                                 3
would not find this conclusion debatable. The United States Supreme Court will

uphold a sentence that is not grossly disproportionate to the crime. See Ewing v.

California, 538 U.S. 11, 21–23 (2003). Here, Marshall’s life sentence was not

grossly disproportionate to his first-degree murder conviction. Cf. 18 U.S.C.

§§ 1111(a)–(b), 3559(a)(1), 3581(b)(1) (authorizing imposition of a life sentence for

Class A felonies such as first-degree murder).

      As for the remaining issues Marshall raises in his brief, we need not reach

them because none of them aids in determining whether the execution of Marshall’s

sentence violates federal law. See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991)

(“[I]t is not the province of a federal habeas court to reexamine state-court

determinations on state-law questions. In conducting a habeas review, a federal court

is limited to deciding whether a conviction violated the Constitution, laws, or treaties

of the United States.”). For example, reasonable jurists would not debate whether the

district court properly disregarded Marshall’s access to the courts arguments because

those are civil rights complaints Marshall can pursue under 42 U.S.C. § 1983. See,



conditionally, under terms dictated by the Governor, if ever.” Anderson v. State, 130
P.3d 273, 286–87 (Okla. Crim. App. 2006) (Lewis, J., concurring). Additionally,
“Oklahoma law prohibits the use of earned time credits to reduce a sentence of life
imprisonment.” Dist. Ct. Op. at 7 (citing Okla. Stat. tit. 57, § 138(A) (“No
deductions [by application of earned credits] shall be credited to any inmate serving a
sentence of life imprisonment . . . .”)). Thus, because the February 2 order instructed
the Oklahoma Department of Corrections to consider Marshall’s earned credits and
release him if “a term of forty-five (45) years ha[d] been served,” it was incorrect as
a matter of Oklahoma law. We do not see how the Nowata County judge’s decision
to correct this erroneous order resulted in a deprivation of due process. Reasonable
jurists would not find this conclusion to be debatable.
                                               4
e.g., Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam) (discussing the

difference between section 1983 and habeas petitions).

                                        III.

      Based on the foregoing, we DENY Marshall’s request for a COA and

DISMISS this appeal.


                                          Entered for the Court


                                          Allison H. Eid
                                          Circuit Judge




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