                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 August 18, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                                    TENTH CIRCUIT


 DAVID MARSHALL WOODWARD,

          Petitioner - Appellant,                      No. 09-2059
                                             (D.C. No.08-CV-00343-MV-WDS)
 v.                                                      (D.N.M.)

 MICHAEL HEREDIA, Warden,

          Respondent - Appellee.


                                ORDER
                 DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.


      David Marshall Woodward, a state inmate appearing pro se, seeks a

certificate of appealability (COA) to appeal from the district court’s order

denying his 28 U.S.C. § 2241 petition. 1 See Montez v. McKinna, 208 F.3d 862,

867 (10th Cir. 2000) (requiring COA). In order to receive a COA, Mr.

Woodward must make “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). In other words, he “must demonstrate that


      1
         We note that the district court’s order characterizes Mr. Woodward’s
petition as arising under 28 U.S.C. § 2254. See R. Doc. 11. However, Mr.
Woodward actually filed for relief pursuant to 28 U.S.C. § 2241. See R. Doc. 1.
Because the district court adopted the magistrate’s findings and recommendations,
see R. Docs. 9, 11, which clearly recommend denial of Mr. Woodward’s motion
under 28 U.S.C. § 2241, we find the error harmless given our result.
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).

Because he has not made this showing, we deny the request for a COA and

dismiss the appeal.

      In 1991, Mr. Woodward was convicted of first-degree murder (and other

offenses), and in 1992 he was sentenced to life imprisonment. See R. Doc. 8, at

Ex. A. Mr. Woodward has accumulated good time credits during his

incarceration. See R. Doc. 8, at Ex. B. The difficulty is that prison officials

refused to apply those credits to Mr. Woodward’s parole eligibility date. He says

that he has been denied a protected liberty interest and challenges the conditions

of his confinement. See R. Doc. 1. A magistrate judge recommended denial of

Mr. Woodward’s petition, concluding that Compton v. Lytle, 81 P.3d 39 (N.M.

2003), was controlling and that there was no “state-created statutory right to good

time credits for capital felons.” R. Doc. 9, at 4-5. After considering Mr.

Woodward’s objections, see R. Doc. 10, the district court adopted the magistrate’s

recommendation and denied Mr. Woodward’s petition with prejudice, R. Docs.

11, 12.

      Various statutes are pertinent. First, N.M. Stat. § 31-21-10(A) provides

that an inmate sentenced to life will only become eligible for a parole hearing

after he has served thirty years of his sentence. Second, as Mr. Woodward points

out in his original petition for writ of habeas corpus, N.M. Stat. § 33-2-34 and

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§ 33-8-14 (repealed 1999) provide inmates with the opportunity to earn good time

credits.

      Clarifying what could be construed as a conflict between these statutes, in

Compton, the New Mexico Supreme Court held that, with § 31-21-10(A), “the

Legislature intended that an inmate serving a life sentence should not be released

on parole prior to serving thirty years in prison, no matter how many good-time

credits that inmate may have accumulated.” 81 P.3d at 44. Relying on Stephens

v. Thomas, 19 F.3d 498, 501 (10th Cir. 1994), and Lasiter v. Thomas, 89 F.3d

699, 702 (10th Cir. 1996), the court further held that a state prisoner “does not

have a liberty interest in having erroneously granted past or future good-time

credits reduce his parole-eligibility date beneath that thirty-year period.”

Compton, 81 P.3d at 46-47; see Martinez v. New Mexico, 772 P.2d 1305, 1305-06

(N.M. 1989) (holding that an inmate sentenced to life imprisonment is not entitled

to have the mandatory thirty-year sentence reduced based on good time credits).

In light of these precedents, Mr. Woodward’s claim is not reasonably debatable.

See Davis v. Bravo, 22 F. App’x 971 (10th Cir. 2001) (unpublished) (denying a

COA on similar claim as foreclosed by circuit precedent). To the extent that Mr.

Woodward is attempting to ask this court to reexamine a question of state law, we

are limited to determining “whether a conviction violated the Constitution, laws,

or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991).

      Therefore, we agree with the district court that Mr. Woodward has no basis

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for asserting a federal due process claim based on the refusal of corrections

officials to apply good time credits to his parole eligibility date. See Stephens, 19

F.3d at 501 (“The revocation of good time credits from a life term prisoner who

has served less than [thirty] years of his sentence . . . does not implicate the Due

Process Clause.”).

      We DENY a COA and DISMISS the appeal.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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