                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         FEB 12 2002
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


THOMAS LEE TAYLOR,

          Petitioner-Appellant,

v.

VANCE EVERETT, Warden, in his                           No. 01-8057
official capacity, Wyoming State                  (D.C. No. 01-CV-48-B)
Penitentiary; JUDY UPHOFF, in her                  (District of Wyoming)
official capacity as Director, Wyoming
Department of Corrections;
ATTORNEY GENERAL OF THE
STATE OF WYOMING,

          Respondents-Appellees.




                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of



      *
       This order and judgment is not binding precedent, except under the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.
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 case is before the court on Thomas Lee Taylor’s pro se request for a

certificate of appealability (“COA”). Taylor seeks a COA so that he can appeal

the district court’s denial of his 28 U.S.C. § 2241 habeas petition. 1 In his

petition, Taylor asserted that he was denied procedural due process during his

parole revocation hearing, that his parole revocation was based on a citation that

was later dismissed in state court, and that the parole board should not have

denied him credit for “street time” which accrued while he was on parole. In

denying Taylor’s petition, the district court concluded that Taylor was afforded all

of the process he was due. The district court further concluded it was irrelevant

that the citation underlying the parole revocation was eventually dismissed in

state court because the burden of proof in parole revocation proceedings was

significantly lower than that in criminal prosecutions. This court has undertaken

a thorough review of Taylor’s request for a COA and appellate brief, the district

court’s order, and the entire record on appeal. That review demonstrates that the



      1
        Although Taylor brought his petition under 28 U.S.C. § 2254 and the
district court docketed it as a § 2254 petition, Taylor’s petition challenges the
execution of his sentence rather than its validity. Accordingly, we construe the
petition as arising under § 2241. See Montez v. McKinna, 208 F.3d 862, 865
(10th Cir. 2000). No matter how construed, Taylor needs a COA to appeal the
denial of his petition. See id. at 869.

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district court’s resolution of Taylor’s petition is not debatable or deserving of

further proceedings. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

Accordingly, Taylor has not made a “substantial showing of the denial of a

constitutional right,” and is not entitled to a COA. 28 U.S.C. § 2253(c)(2).

      Taylor’s request for a COA is DENIED for substantially those reasons set

out in the district court’s order dated June 11, 2001. The appeal is hereby

DISMISSED.

                                        ENTERED FOR THE COURT



                                        Michael R. Murphy
                                        Circuit Judge




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