                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                 November 23, 2012
                                TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

 TERRANCE L. GAYTON,

               Petitioner - Appellant,

 v.                                                     No. 12-2035
                                            (D.C. No. 1:11-CV-00356-JCH-LFG)
 ANTHONY ROMERO, Warden;                                 (D.N.M.)
 GARY K. KING, Attorney General for
 the State of New Mexico,

               Respondents - Appellees.



                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY *


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.


      Terrance L. Gayton, a prisoner in the custody of the State of New Mexico

proceeding pro se, 1 seeks a certificate of appealability (“COA”) to appeal the




      *
              This order is not binding precedent except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
      1
             Because Mr. Gayton is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v.
Davis, 596 F.3d 1198, 1201 n. 2 (10th Cir. 2010).
district court’s denial of his 28 U.S.C. § 2241 petition. 2 Because we agree with

the district court that Mr. Gayton has not “made a substantial showing of the

denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we deny his request for

a COA and dismiss this matter.

      In 2009, Mr. Gayton pleaded guilty to a charge of trafficking by possession

with intent to distribute cocaine and was sentenced to a ten-year period of

incarceration. Nine years of Mr. Gayton’s sentence were suspended and he was

given a two-year term of parole and a five-year period of supervised probation.

In 2010, Mr. Gayton’s probation was revoked because he had violated the

conditions of his probation; he was sentenced to serve a term of 1545 days, with a

parole term of two years. Mr. Gayton successfully challenged the calculation of

1545 days and his sentence was corrected to a term of 1460 days. After

exhausting his state remedies, Mr. Gayton filed a petition for a writ of habeas

corpus in the District of New Mexico, challenging his corrected sentence and



      2
             Mr. Gayton styled his petition as an application for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. However, because his petition challenged
“the execution or duration of his sentence rather than its legality,” the magistrate
judge construed his petition as one under 28 U.S.C. § 2241. Aplt. App. at 26
(Magistrate Judge’s Findings & Recommended Disposition, filed Feb. 8, 2012).
Mr. Gayton did not object to this construction of his petition before the district
court, nor does he challenge it before us. Furthermore, we have no reason to
question the propriety of this action. See Montez v. McKinna, 208 F.3d 862, 865
(10th Cir. 2000) (discussing whether the petition was “properly brought under
§ 2254 as a challenge to the validity of [the petitioner’s] conviction and sentence
or pursuant to § 2241 as an attack on the execution of his sentence”).

                                         -2-
alleging that the state court did not properly credit him with all of the time he had

served and was requesting. The matter was referred to a magistrate judge who

recommended dismissing Mr. Gayton’s petition with prejudice. The district court

overruled Mr. Gayton’s objections to the magistrate judge’s findings and

recommendations and adopted them, dismissing Mr. Gayton’s petition with

prejudice. The district judge then sua sponte entered an order denying a COA to

Mr. Gayton.

      Mr. Gayton now seeks a COA so that he can appeal the district court’s

denial of his 28 U.S.C. § 2241 motion. Specifically, Mr. Gayton seeks a COA on

three grounds: (1) his credits for time served were not recorded on his good-time

figuring sheet or in the revocation order that the state court issued when it

revoked his parole; (2) he was not given the correct presentence credits, as

indicated by the fact that they are not noted on either his good-time figuring sheet

or in the revocation order; and (3) the district court did not request a transcript for

his parole revocation hearing, which would have proved that the state court erred

in determining his sentence.

      “Before an appeal may be entertained, a prisoner who was denied habeas

relief in the district court must first seek and obtain a COA . . . .” Miller-El v.

Cockrell, 537 U.S. 322, 335–36 (2003); see 28 U.S.C. § 2253(c)(1)(A). We

“read[] § 2253(c)(1)(A) as applying whenever a state prisoner habeas petition

relates to matters flowing from a state court detention order. This includes . . .

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challenges related to the incidents and circumstances of any detention pursuant to

state court process under § 2241.” Montez v. McKinna, 208 F.3d 862, 869 (10th

Cir. 2000); see Davis v. Roberts, 425 F.3d 830, 833 (10th Cir. 2005). We will not

issue a COA unless “the applicant has made a substantial showing of the denial of

a constitutional right.” 28 U.S.C. § 2253(c)(2); accord Harris v. Dinwiddie, 642

F.3d 902, 906 (10th Cir. 2011) (quoting 28 U.S.C. § 2253(c)(2)). “To make such

a showing, an applicant must demonstrate ‘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.’” Harris, 642 F.3d at 906 (quoting Slack v.

McDaniel, 529 U.S. 473, 484 (2000)).

      After carefully reviewing the entire record, Mr. Gayton’s combined brief

and application for a COA, the magistrate judge’s findings and recommendation,

and the district court’s order, pursuant to the framework set out by the Supreme

Court in Miller-El, we find that Mr. Gayton is not entitled to a COA. As the

district court aptly explained, Mr. Gayton does not meet his “burden of proof of

clearly showing or stating how his sentence has been calculated by prison

authorities, what particular calculations he asserts are erroneous, and the reasons

and or authority for his assertions.” Aplt. App. at 23–24 (citation omitted)

(internal quotation marks omitted). “Instead, he again provides only conclusory

allegations, without demonstrating with specificity, how the date of his projected

                                         -4-
release was impacted by alleged credit still owed.” Id. He has thus failed to

make a substantial showing that he has been denied a constitutional right.

Reasonable jurists could not debate whether Mr. Gayton’s § 2241 motion should

have been resolved in a manner different than that set out by the magistrate judge

and adopted by the district court. The issues Mr. Gayton seeks to raise on appeal

are not adequate to deserve encouragement to proceed further. Accordingly, we

deny Mr. Gayton’s request for a COA and dismiss this appeal.



                                              Entered for the Court



                                              JEROME A. HOLMES
                                              Circuit Judge




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