                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      September 28, 2006
                                    TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                          Clerk of Court


 D A LE M . D EN N EY ,

                 Petitioner - A ppellant,                  No. 06-3269
          v.                                               (D. Kansas)
 RAY ROBERTS, W arden, El Dorado                 (D.C. No. 05-CV-3012-W EB)
 Correctional Facility; PHIL KLINE,
 Attorney General of Kansas,

                 Respondents - Appellees.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before TA CH A, HA RTZ, and TYM KOVICH, Circuit Judges.


      Dale M ichael Lloyd Denney requests a certificate of appealability (COA) to

appeal the district court's denial of his motion for relief, which the district court

construed as an application for habeas relief under 28 U.S.C. § 2241. He sought

modification of his Kansas state prison sentence, arguing that his due-process



      *
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
rights were violated because (1) part of his sentence was not converted to a

determinate sentence, (2) the Kansas Sentencing Commission failed to obey a

court order requiring conversion of part of his sentence, (3) his sentence in one

case should be aggregated with his sentences in two unrelated cases, and (4)

Kansas failed to give him credit tow ard his sentence on one charge for excess

time served on an unrelated charge. In this court he also raises an equal-

protection claim. The district court denied a COA. W e do likew ise and dismiss

the appeal.

                                 BACKGROUND

      In 1987 M r. Denney was convicted of aggravated burglary and rape, for

which he received indeterminate sentences (Case A). See State v. Denney, 101

P.3d 1257, 1259 (Kan. 2004). He served time from January 7, 1988, until his

parole on July 20, 1992. See id. On December 1, 1993, a jury found him guilty

of the commission in October 1992 of aggravated sexual battery, aggravated

criminal sodomy, and an aggravated weapons violation; he received indeterminate

sentences on the convictions (Case B). See id. The same jury also found him

guilty of aggravated criminal sodomy and aggravated sexual battery committed in

July 1993 (Case C); for these crimes he received a determinate sentence of 228

months, to run consecutively to his indeterminate sentences in Case B. See id. In

addition, M r. D enney's parole in Case A was revoked on April 15, 1994. See id.




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      In response to a motion filed by M r. Denney in 2001, a state trial court

converted his sentence of 5 to 20 years in Case A to a determinate term of 36

months. See id. at 1259–60. Because M r. Denney had already served more than

36 months on this sentence, the Kansas D epartment of Corrections treated this

sentence as satisfied. See id. at 1260.

      M r. Denney then filed a motion in Kansas state court claiming entitlement

to (1) a conversion to a determinate sentence for Case B and (2) credit, to be

applied to his sentences in Cases B and C, for time incarcerated in Case A beyond

36 months. Id. The Kansas Supreme Court rejected his claims. Id. at 1261. In

particular, the court rejected M r. Denney's claim to credit, saying “‘[a] defendant

is not entitled to credit on a sentence for time which he has spent in jail upon

other, distinct, and wholly unrelated charges.’” Id. (quoting Campbell v. State,

575 P.2d 524 (1978)).

      Next M r. Denney filed in the United States District Court for the District of

Kansas a pleading seeking relief. The district court construed his pleading as an

application under 28 U.S.C. § 2241 because it was an attack on the execution of a

sentence rather than a challenge to the validity of a conviction or a sentence.

See M ontez v. M cKinna, 208 F.3d 862, 865 (10th Cir. 2000) (distinguishing

claims under § 2241 and § 2254). It then denied the motion on June 23, 2006,

and denied a motion for reconsideration on July 18.




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                                   D ISC USSIO N

      State prisoners seeking habeas relief under § 2241 must obtain a COA to

appeal the denial of an application. See id. at 867. A COA will issue “only if the

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

28 U.S.C. § 2253(c)(2). This standard requires “a demonstration that . . . includes

showing 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.”

Slack v. M cDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted).

In other words, the applicant must show that the district court's resolution of the

constitutional claim was either “debatable or wrong.” Id.

      M r. Denney's first three claims challenge the interpretation of state law by

state courts. Such claims are not cognizable on federal habeas review , for “it is

not the province of a federal habeas court to reexamine state-court determinations

on state-law questions.” Estelle v. M cGuire, 502 U.S. 62, 67–68 (1991); see also

28 U.S.C. § 2241(c)(3); M ontez, 208 F.3d at 865. W e recognize that M r. Denney

asserts a violation of due process, and a pro se litigant's pleadings should be

construed liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

Nevertheless, courts should not “assume the role of advocate for the pro se

litigant.” Id. It is not for this court to make M r. D enney's arguments for him.

M r. Denney's bare assertion that he has been denied due process, without any

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explanation of the legal basis for the claim, does not amount to “a substantial

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

Dunn v. White, 880 F.2d 1188, 1198 (10th Cir. 1989). Accordingly, no

reasonable jurist could dispute the district court's denial of these claims.

      M r. Denney similarly fails to support his claim that he was denied due

process when he was not given credit for excess time served on his Case A

sentence. He cites M eachum v. Fano, 427 U.S. 215 (1976), but that case held

only that transfer to a less desirable prison does not violate a prisoner's due-

process rights when state law does not condition such a transfer on proof of

specific conduct or events, see id. at 226–27. To the extent that M eachum may be

relevant, we note that the Kansas Supreme Court explicitly held that M r. Denney

had no state-law right to jail-time credit for time spent in prison on unrelated

charges. See Denney, 101 P.3d at 1261. M oreover, we are aware of no authority

supporting his constitutional claim. Indeed, at least one circuit court has held to

the contrary. See Holscher v. Young, 440 F.2d 1283, 1290 (8th Cir. 1971) (“Due

process does not require that [the applicant] be credited with the time spent in

prison under the prior illegal conviction of a crime unrelated to the present

case.”). As a result, no reasonable jurist could dispute the district court's denial

of this claim.

      Finally, M r. Denney appears to raise an equal-protection claim in his

application to this court. W e need not consider whether this claim was presented

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in district court, because it clearly fails on the merits. M r. Denney proffers no

facts and cites no cases that support his contention; he has not identified how he

was treated differently from other similarly situated persons. See Penrod v.

Zavaras, 94 F.3d 1399, 1406 (10th Cir. 1996). A conclusory statement that he

has been denied equal protection does not amount to a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Dunn, 880 F.2d at

1198. Thus, regardless of whether the district court was presented with

M r. D enney's equal-protection claim, the claim is meritless. See Davis v.

Roberts, 425 F.3d 830, 834 (10th Cir. 2005) (court may deny a COA for any

reason adequately supported by the record).

      W e DENY M r. D enney's application for a COA and DISM ISS the appeal.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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