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

                              FOR THE TENTH CIRCUIT                          September 9, 2016
                          _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
OLOYEA D. WALLIN,

      Petitioner - Appellant,

v.                                                             No. 15-1299
                                                  (D.C. No. 1:13-CV-01867-MSK-CBS)
MICHAEL MILLER, Warden of Crowley                               (D. Colo.)
County Correctional Facility,

      Respondent - Appellee.
                      _________________________________

             ORDER DENYING CERTIFICATE OF APPEALABILITY
                    _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

       This order is entered to follow up on our May 12, 2016 order, which was entered

both in this case and in number 15-1301, also captioned as Wallin v. Miller. The May 12

order denied petitioner’s request for a certificate of appealability on all claims applicable

to this 28 U.S.C. § 2241 proceeding. As a result, this proceeding should have been

terminated when the May 12 order was entered, but due to a clerical error it was not.

       This order supplements our original order and acts to deny Mr. Wallin’s certificate

of appealability and to dismiss this matter. We incorporate the May 12 order by reference

and attach it to this order.

       Although this case termination order is effective May 12, 2016, we will grant the

petitioner’s “Motion for extension of time to file Petition for Panel Rehearing and
Rehearing in Banc.” Any petition for rehearing from the petitioner addressing this

particular case must be filed on or before October 7, 2016. Any pleading filed should be

clearly marked with the case number for this matter.


                                            Entered for the Court
                                            ELISABETH A. SHUMAKER, Clerk


                                            by: Lara Smith
                                                Counsel to the Clerk




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                                                                          FILED
                                                                   United States Court of
                   UNITED STATES COURT OF APPEALS                      Appeals
                                                                       Tenth Circuit
                                TENTH CIRCUIT
                                                                       May 12, 2016
                                                                   Elisabeth A. Shumaker
   OLOYEA D. WALLIN,                                                   Clerk of Court

              Petitioner - Appellant,


   v.                                          Nos. 15-1299 & No. 15-1301
                                           (D.C. Nos. 1:13-CV-01867-MSK-CBS
                                                 and 1:14-CV-01968-MSK)
   MICHAEL MILLER, Warden of
   Crowley County Correctional
   Facility; et al.,

              Respondents - Appellees.




                                        ORDER



  Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.


        While on parole, Mr. Oloyea D. Wallin was convicted in a Colorado

  state court of second-degree assault and sentenced to fourteen years in

  prison. He filed one habeas petition under 28 U.S.C. § 2254 and another

  under 28 U.S.C. § 2241. The federal district court rejected all of the claims

  in both petitions, and Mr. Wallin wants to appeal. We can entertain an

  appeal only if Mr. Wallin is entitled to a certificate of appealability. See

  28 U.S.C. § 2253(c)(1)(A).
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        In the first habeas petition, Mr. Wallin invokes § 2254 and alleges

  numerous errors. We grant Mr. Wallin a certificate of appealability on five

  of these claims of error:

        1.    Error in allowing expert testimony on domestic violence.

        2.    Error in allowing use of unsubstantiated testimony by Mr.
              Lehmann that he had spoken to Mr. Wallin.

        3.    Prosecutorial misconduct.

        4.    Error in the use of the alleged victim’s confidential medical
              information.

        5.    Abuse of subpoena power.

  We decline to grant Mr. Wallin a certificate of appealability on his

  remaining § 2254 claims, in which he alleges

        •     error in allowing introduction of a recorded telephone
              message into evidence,

        •     error in denying Mr. Wallin pre-sentence confinement
              credit,

        •     error in allowing use of the alleged victim’s involuntary
              statements,

        •     ineffective assistance of counsel,

        •     error in allowing the jury to consider the victim’s
              affliction with battered-person syndrome without any
              expert evaluation,

        •     error in allowing a prosecution witness to testif y after
              observing every prior witness testif y,

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        •     insufficient evidence of guilt,

        •     error in striking of a venireperson based on minority
              status,

        •     inadequacy of the jury instructions,

        •     irregularities in the preliminary hearing,

        •     failure to dismiss the Information even though it was
              based on inadmissible statements,

        •     imposition of an excessive             sentence    based     on
              inadmissible evidence,

        •     violation of the U.S. Constitution in applying a Colorado
              statute,

        •     error in denying a postconviction hearing,

        •     error by the trial judge in declining to recuse,

        •     error in allowing testimony that Mr. Wallin had been in
              prison,

        •     inadequacy of the state postconviction review process,
              and

        •     error in allowing introduction of a witness’s advice to the
              jury.

        In the second habeas petition, Mr. Wallin invokes § 2241 and alleges

        •     intentional use of false information to deny parole to Mr.
              Wallin and

        •     inadequate staffing of the parole hearing.

  We deny a certificate of appealability on all of these claims.


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  I.    Mr. Wallin’s § 2254 Petition

        The district court addressed the merits of only three of Mr. Wallin’s

  claims under 28 U.S.C. § 2254. The district court determined that Mr.

  Wallin’s other habeas claims were subject to procedural default or were

  not cognizable in a federal habeas action.

        We believe that reasonable jurists could debate whether Mr. Wallin

  procedurally defaulted on five of these claims:

        1.    error in allowing expert testimony on domestic violence,

        2.    error in allowing use of unsubstantiated testimony by Mr.
              Lehmann that he had spoken to Mr. Wallin,

        3.    prosecutorial misconduct,

        4.    error in the use of the alleged victim’s confidential medical
              information, and

        5.    abuse of subpoena power.

  On these claims, we grant Mr. Wallin’s request for a certificate of

  appealability. For Mr. Wallin’s other claims under § 2254, however, all

  reasonable jurists would view the district court’s analysis as undebatable.

  Thus, Mr. Wallin is not entitled to a certificate of appealability on the

  other claims.




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        A.    Mr. Wallin must show a reasonably debatable appeal point.

        To obtain a certificate of appealability, Mr. Wallin must make “a

  substantial showing of the denial of a constitutional right.” 28 U.S.C.

  § 2253(c)(2). Mr. Wallin can meet this standard only “by demonstrating

  that jurists of reason could disagree with the district court’s resolution of

  his constitutional claims or that jurists could conclude the issues presented

  are adequate to deserve encouragement to proceed further.” Miller-El v.

  Cockrell, 537 U.S. 322, 327 (2003).

        B.    Mr. Wallin’s claims are not reasonably debatable regarding
              the improper introduction of a recorded telephone message,
              the state trial court judge’s failure to recuse herself, and the
              erroneous calculation of credits for pretrial confinement.

        Mr. Wallin alleges error in allowing introduction of a recorded

  telephone message, failure of the trial judge to recuse herself, and

  miscalculation of credits for pretrial confinement. These challenges are not

  reasonably debatable.

        1.    Mr. Wallin is not entitled to appeal the introduction of the
              recorded telephone message.

        While Mr. Wallin was paroled for a prior offense, he allegedly

  assaulted his ex-wife. After learning of the incident, a parole officer

  directed Mr. Wallin to go to a police station and speak with a detective.

  Mr. Wallin did not visit the station. Instead, he called the station and left a

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  recorded message for the detective. In his message, Mr. Wallin said,

  “[T]hey were trying to make it domestic violence.” Mr. Wallin explained

  that (1) his ex-wife’s injuries were the result of an accident and (2) he

  wanted to resolve the matter.

        Over Mr. Wallin’s objection, the state trial court allowed the

  prosecution to use the recording, holding that Mr. Wallin’s statements were

  voluntary and that the parole officer had not compelled Mr. Wallin to

  incriminate himself. The state appeals court affirmed.

        Mr. Wallin challenges the rulings, contending that

        •     he was compelled to provide the statement and

        •     his parole status rendered the exchange a custodial
              interrogation, triggering his Fifth Amendment privilege
              against self-incrimination.

  All reasonable jurists would reject these contentions.

        First, under our precedents, the statements were clearly voluntary.

  Although the exchange was initiated by a parole officer, the parole

  officer’s instruction is not considered coercive. See Minnesota v. Murphy,

  465 U.S. 420, 427 (1984) (stating that a probation officer’s authority to

  compel a parolee’s attendance is not inherently coercive). Mr. Wallin was

  not questioned; he simply left a message for the police department and the


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  substance of his statements was not directed or suggested by a law

  enforcement officer. As a result, Mr. Wallin’s statements were voluntary.

        Similarly, no jurist could reasonably consider the parole officer’s

  instruction as a violation of Mr. Wallin’s right against self-incrimination.

  Mr. Wallin was not “in custody” when he made the potentially

  incriminating statements. Thus, the parole officer had no constitutional

  obligation to warn Mr. Wallin against self-incrimination. Roberts v. United

  States, 445 U.S. 552, 560-61 (1980).

        Mr. Wallin has not shown a violation of his rights under the Fifth and

  Fourteenth Amendments, and no reasonable jurist would disagree with the

  district court’s legal analysis regarding introduction of the recorded

  telephone message. Thus, Mr. Wallin is not entitled to a certificate of

  appealability on this claim.

        2.    Mr. Wallin is not entitled to appeal the trial judge’s refusal
              to recuse herself.

        At trial, Mr. Wallin moved for disqualification of the trial judge,

  arguing that she had displayed bias by delaying the proceedings. This

  motion was denied, and the ruling is not subject to reasonable debate.

        Due process requires “an absence of actual bias in the trial of cases.”

  In re Murchison, 349 U.S. 133, 136 (1955). A judge’s recusal may be

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  appropriate when the source of the judge’s bias arises from an extrajudicial

  source. Liteky v. United States, 510 U.S. 540, 554-55 (1994). Rulings,

  however, do not ordinarily provide grounds for recusal. See id. at 555

  (“[J]udicial remarks during the course of a trial that are critical or

  disapproving of, or even hostile to . . . the parties, or their cases,

  ordinarily do not support a bias or partiality challenge.”). Recusal is

  necessary only when judges display bias in their rulings that is “so extreme

  as to display clear inability to render fair judgment.” Id. at 551.

        Mr. Wallin relies on the state trial judge’s rulings delaying the trial.

  But even if the trial judge had erred in delaying the trial, the rulings

  allowing the delays were not sufficiently extreme to require the judge’s

  recusal or to constitute a denial of due process. Only seven months elapsed

  between Mr. Wallin’s arraignment and his sentencing. 1 Cf. Doggett v.

  United States, 505 U.S. 647, 652 (1992) (holding that an 8.5-year delay

  between an arrest and indictment did not deprive the defendant of due

  process).




  1
       A postconviction matter was delayed six years. But that delay cannot
  show the judge’s need to recuse prior to entry of a judgment.

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        Because no reasonable jurist could debate the validity of the due

  process claim, Mr. Wallin is not entitled to a certificate of appealability to

  appeal the trial judge’s denial of the motion to recuse.

        3.    Mr. Wallin is not entitled to appeal the calculation of
              credits for pretrial confinement.

        During the time that Mr. Wallin spent in custody awaiting sentencing

  on an assault charge, he was still on parole for an earlier offense. The state

  court applied confinement credit for that time to his earlier sentence but

  not to his new sentence for the assault. This allocation of credit was

  required under Colorado law. Colo. Rev. Stat § 18-1.3-405.

        Mr. Wallin moves for habeas relief under § 2254, claiming that he

  could not post bail and arguing that application of the Colorado statute

  required him to serve more time than another prisoner who had been able

  to post bail. According to Mr. Wallin, the difference in prison time

  resulted in a denial of equal protection.

        Mr. Wallin’s challenge is not cognizable under § 2254 because the

  calculation of credits did not affect the validity of his conviction or

  sentence. Typically we consider this kind of challenge under § 2241. See,

  e.g., Hamm v. Saffle, 300 F.3d 1213, 1216 (10th Cir. 2002). But even if we

  were to recharacterize the claim as one brought under § 2241, Mr. Wallin

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   could appeal only if we issue a certificate of appealability. Montez v.

   McKinna, 208 F.3d 862, 867-69 (10th Cir. 2000).

         We rejected a virtually identical claim in Vasquez v. Cooper, 862

   F.2d 250, 251-55 (10th Cir. 1988). Under Vasquez, Mr. Wallin’s claim is

  not reasonably debatable. Thus, we decline to issue a certificate of

  appealability on this claim.

         C.    Mr. Wallin is entitled to appeal the disposition of his
               challenges to his conviction involving introduction of expert
               testimony, involuntariness of the alleged victim’s
               statements, confidentiality of medical information, abuse of
               subpoena power, and prosecutorial misconduct.

         Mr. Wallin also sought habeas relief under § 2254 based on alleged

  errors involving

         •     introduction of an expert witness’s opinion testimony on
               the impact of domestic violence,

         •     introduction of involuntary statements by the alleged
               victim,

         •     misconduct by the prosecutor,

         •     use of the alleged         victim’s     confidential    medical
               information, and

         •     abuse of subpoena power.

  The federal district court held that Mr. Wallin had procedurally defaulted

   on these claims. In light of this ruling, we can grant a certificate of

  appealability only if reasonable jurists could debate (1) the applicability of
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   procedural default and (2) the merits. See Frost v. Pryor, 749 F.3d 1212,

   1230 n.11 (10th Cir. 2014) (procedural default); Slack v. McDaniel, 529

   U.S. 473, 484 (2000) (merits). Given the sparse record and insufficient

   adversarial briefing, we believe that the issues involving procedural

   default and the merits are reasonably debatable.

         After Mr. Wallin was convicted, he filed two motions in state court:

   a motion for a new trial and a motion for postconviction relief. Under state

   law, the court would ordinarily bear an obligation to deny postconviction

  relief if the same claim (1) had been previously rejected in a direct appeal

  or postconviction proceeding or (2) could have been presented in a prior

  appeal or postconviction proceeding. Colo. R. Crim. P. 35(c)(3)(VI)-(VII).

  Exceptions exist, but none would even arguably apply here. See Colo. R.

  Crim. P. 35(c)(3)(VI)(a)-(b), VII(a)-(e).

         In light of the state law governing postconviction relief, a federal

  appellate panel considering procedural default would need to begin with

  the state appellate court’s rationale. The state appeals court held that under

  state law, the motion for a new trial constituted a motion for

  postconviction relief. On that basis, the state appeals characterized Mr.

  Wallin’s arguments as “successive” on the ground that they were or could

  have been presented earlier in the direct appeal or the motion for a new
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   trial. Thus, the state appeals court declined to consider the merits of any of

   the arguments presented in Mr. Wallin’s subsequent motion for

   postconviction relief.

         In light of the state appeals court’s characterization of Mr. Wallin’s

   arguments as successive, the federal district court concluded that Mr.

   Wallin had procedurally defaulted on the habeas claims because they were

   based on an adequate and independent state procedural ground. This

   conclusion does not distinguish between two types of successive claims:

   (1) those that had been asserted earlier and (2) those that could have been

   presented earlier.

         The state appeals court’s refusal to consider the postconviction

   claims could have been based on the fact that these claims

         •     had already been decided in connection with the direct
               appeal or the motion for a new trial or

         •     could have been presented earlier but weren’t.

   But which was it? To the state appeals court, the difference would not have

   mattered because either way, Mr. Wallin’s claims would not have been

   cognizable in postconviction proceedings. For purposes of federal habeas

  relief, however, the difference might be significant because the habeas

  claims would not be procedurally barred if they had already been presented


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   in the motion for a new trial. See Cone v. Bell, 556 U.S. 449, 467 (2009)

   (“When a state court refuses to readjudicate a claim on the ground that it

   has been previously determined, the court’s decision . . . provides strong

   evidence that the claim has already been given full consideration by the

   state courts and thus is ripe for federal adjudication.” (emphasis in

   original)); see also Davis v. Workman, 695 F.3d 1060, 1072 (10th Cir.

   2012) (“A state court’s invocation of res judicata does not . . . create a

   procedural bar to relief under § 2254.”).

         The federal district court did not distinguish between Mr. Wallin’s

   claims that were raised earlier and those that could have been raised

   earlier, but we must draw this distinction to determine whether Mr. Wallin

   is entitled to an appeal.

         For example, it is apparent from the record that Mr. Wallin’s direct

  appeal included a challenge to the admissibility of expert testimony on

  domestic violence. This issue was properly raised in the direct appeal, and

  the Colorado Court of Appeals decided this issue on the merits. See R. at

  73-77 (opinion); id. at 354-59 (Mr. Wallin’s opening brief in the direct

  appeal). Thus, on this claim, the federal district court’s invocation of

  procedural default is at least reasonably debatable.


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         The same is true of Mr. Wallin’s habeas claims involving

   involuntariness of the victim’s statements, use of the victim’s confidential

   medical information, abuse of subpoena power, and prosecutorial

   misconduct. The Colorado Court of Appeals rejected these claims in Mr.

   Wallin’s postconviction appeal, reasoning that the gist of these claims had

   already been decided through the motion for a new trial. R. at 59-60; see

   also id. at 60 (explaining that some of the arguments for Mr. Wallin’s

   prosecutorial misconduct claim had been previously raised, but the

   “remaining arguments” for this claim had not been previously raised). In

   these circumstances, reasonable jurists could debate the federal district

   court’s finding of a procedural default.

         To obtain a certificate of appealability, Mr. Wallin must also show

  that reasonable jurists “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). But we have little information with which to

  assess the merits of these habeas claims. For example, our record on appeal

  does not include the trial transcript or meaningful adversarial briefing on

  Mr. Wallin’s habeas claims.

         When the record is too sparse for meaningful evaluation, a

  reasonable jurist might conclude that the habeas claims are at least
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   debatable. As a result, we grant a certificate of appealability on Mr.

   Wallin’s challenges to the introduction of expert testimony, introduction of

   the alleged victim’s statements, use of confidential medical information,

   use of subpoena power, and conduct of the prosecutor.

         D.    Mr. Wallin is not entitled to appeal the remaining
               challenges to his conviction under § 2254.

         In the § 2254 habeas petition, Mr. Wallin also alleges

         •     error in allowing introduction of unsubstantiated
               testimony by Mr. Lehmann that he had spoken to Mr.
               Wallin,

         •     ineffective assistance of counsel,

         •     error in allowing the jury to consider the victim’s
               affliction with battered-person syndrome without any
               expert evaluation,

         •     error in allowing a prosecution witness to observe the
               trial proceedings before testif ying,

         •     insufficient evidence of guilt,

         •     striking of a venireperson based on minority status,

         •     inadequacy of the jury instructions,

         •     irregularities in the preliminary hearing,

         •     failure to dismiss the Information even though it was
               based on inadmissible statements,

         •     imposition of an excessive sentence,



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         •     violation of the U.S. Constitution in applying a Colorado
               statute,

         •     violation of the U.S. Constitution in allowing
               introduction of testimony that Mr. Wallin had been in
               prison, and

         •     error in allowing a witness to advise the jury.

   The federal district court regarded these habeas claims as procedurally

   barred. In doing so, the court again did not distinguish between

         •     Mr. Wallin’s claims that were rejected in state
               postconviction proceedings because the claims had been
               decided earlier and

         •     Mr. Wallin’s claims that were rejected in state
               postconviction proceedings because the claims could have
               been presented earlier.

   See Colo. R. Crim. P. 35(c)(3)(VI)-(VII). Nonetheless, all reasonable

   jurists would agree with the federal district court because these claims

   were not timely raised in state court.

         Even now, Mr. Wallin has never presented the state appeals court

   with his claims involving

         •     inadequacy of the jury instructions,

         •     constitutional error in applying a Colorado statute,

         •     error in allowing introduction of testimony by Mr.
               Lehmann that he had spoken to Mr. Wallin, and

         •     imposition of an excessive sentence.

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   These claims were omitted in the direct appeal, the motion for a new trial,

   and the motion for postconviction relief.

         Mr. Wallin could theoretically return to state district court to exhaust

   these claims. If he did so, however, the state courts would decline to

   consider the claims because they could have been presented earlier. See

   Colo. R. Crim. P. 35(c)(3)(VII). In these circumstances, we would consider

   the habeas claims subject to an “anticipatory procedural default.” See

   Moore v. Schoeman, 288 F.3d 1231, 1233 n.3 (10th Cir. 2002)

   (“‘Anticipatory procedural bar’ occurs when the federal courts apply

   procedural bar to an unexhausted claim that would be procedurally barred

   under state law if the petitioner returned to state court to exhaust it.”).

   To avoid the anticipatory procedural default, Mr. Wallin would need to

   show either (1) “cause” for failing to present the claims in earlier

   proceedings and resulting “prejudice” or (2) a fundamental miscarriage of

   justice based on a credible showing of actual innocence. Frost v. Pryor,

   749 F.3d 1212, 1231 (10th Cir. 2014).

         Mr. Wallin has not attempted to make either showing. Thus, any

   reasonable group of appellate jurists would reject Mr. Wallin’s claims

   based on anticipatory procedural default. In these circumstances, we

   decline to issue a certificate of appealability on Mr. Wallin’s claims
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   involving inadequacy of the jury instructions, constitutional error in

   application of a Colorado statute, error in allowing testimony by Mr.

   Lehmann about a conversation with Mr. Wallin, and imposition of an

   excessive sentence.

         We can tell from the record that the state appeals court reasoned that

   Mr. Wallin could have presented the remainder of his § 2254 claims earlier

   but didn’t. For example, the Colorado Court of Appeals held that

         •     the ineffective assistance claim could have been brought
               in Mr. Wallin’s motion for a new trial and

         •     Mr. Wallin could have argued in the direct appeal that the
               evidence of guilt had been insufficient, the prosecutor
               had improperly stricken a venireperson based on minority
               status,    the    preliminary    hearing   had    involved
               irregularities, and the Information had been deficient.

   R. at 59, 61, 63.

         E.    Mr. Wallin is not entitled to appeal on his habeas claims
               involving deficiencies in the state postconviction
               proceedings.

         Mr. Wallin alleges irregularities in the state postconviction

   proceedings. But our precedents are clear: challenges involving state

   postconviction proceedings are not cognizable in a federal habeas action

   because challenges of this type do not involve a constitutional violation in

   the underlying conviction. See Hopkinson v. Shillinger, 866 F.2d 1185,


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   1219 (10th Cir. 1989) (“The presence of a procedural deficiency in a

   state’s scheme for postconviction relief . . . does no violence to federal

   constitutional rights.”), overruled on other grounds as stated in Phillips v.

   Ferguson, 182 F.3d 769, 772-73 (10th Cir. 1999).

         Under these precedents, no reasonable jurist would credit Mr.

   Wallin’s challenge to the denial of postconviction relief. As a result, Mr.

   Wallin is not entitled to a certificate of appealability on his habeas claims

   involving irregularities in the state postconviction proceedings.

   II.   Mr. Wallin’s § 2241 Petition

         Mr. Wallin also brings challenges under 28 U.S.C. § 2241, arguing

   that his sentence was improperly executed. According to Mr. Wallin, the

   Parole Board

         •     denied him parole and community-corrections placement
               based on incorrect information and

         •     staffed his parole hearing with only a single member of
               the Parole Board.

   We must again determine if these challenges are reasonably debatable. See

   28 U.S.C. § 2253(c)(2). In our view, they are not.

         If Mr. Wallin were allowed to appeal, the appellate panel would

   engage in de novo review of the federal district court’s legal analysis.

   Wilson v. Jones, 430 F.3d 1113, 1117 (10th Cir. 2005).

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          In the § 2241 petition, Mr. Wallin requests removal of erroneous

   information from his file, a new parole hearing, and reconsideration of the

   parole board’s denial of community placement. But before these claims

  were adjudicated in federal district court, Mr. Wallin obtained parole. With

  the grant of parole, the claims in Mr. Wallin’s § 2241 petition became

  moot.

          An appeal ordinarily becomes moot under Article III of the U.S.

  Constitution when a petitioner no longer suffers “actual injury that can be

  redressed by a favorable judicial decision.” Iron Arrow Honor Soc’y v.

  Heckler, 464 U.S. 67, 70 (1983). An exception exists when the challenged

  sentence creates collateral consequences. Rhodes v. Judiscak, 676 F.3d

  931, 933 (10th Cir. 2012).

          Even if Mr. Wallin were to prevail on the merits, he has already

  obtained his requested relief and we cannot shorten his parole term in an

  attempt to “make up” for a longer term of incarceration. See id. Because

  Mr. Wallin’s unexpired sentence cannot be reduced or eliminated by a

  ruling in his favor, his habeas claims are now moot.

          Mr. Wallin contends that the allegedly erroneous information

  remaining in his prison record represents an ongoing injury because he may

  eventually return to prison and, if he does, that information would again be
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   held against him. But that risk is speculative; we assume that Mr. Wallin

   will not re-offend. Id., Spencer v. Kemna, 523 U.S. 1, 16 (1998). If Mr.

   Wallin does not return to criminal activity and return to prison, he will not

   face any consequences as a result of the alleged errors contained in his

   prison file.

          Because the § 2241 claims are moot, we conclude that no reasonable

   jurist would entertain these claims. Therefore, Mr. Wallin is not entitled to

   a certificate of appealability on the claims in his § 2241 petition.

   III.   Disposition

          We grant a certificate of appealability on Mr. Wallin’s claims

   involving the admissibility of expert testimony, involuntariness of his

   statements, use of confidential medical information, abuse of subpoena

   power, and prosecutorial misconduct. We direct the respondent to file a

   response brief on these claims within 21 days. With the response brief, the

   respondent shall supplement the record on appeal with all material

   evidence relating to these claims.

          We deny a certificate of appealability on all of Mr. Wallin’s other

   claims.




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   IV.   Motion for Leave to Proceed in Forma Pauperis

         Mr. Wallin seeks leave to proceed in forma pauperis. This request is

   granted.




                                       Entered for the Court



                                       Robert E. Bacharach
                                       Circuit Judge




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