                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                      UNITED STATES COURT OF APPEALS October 4, 2016
                                                                Elisabeth A. Shumaker
                                    TENTH CIRCUIT                   Clerk of Court



 ALVIN PARKER,

          Petitioner - Appellant,
                                                         No. 16-6219
 v.
                                                 (D.C. No. 5:15-CV-01311-D)
                                                        (W.D. Okla.)
 JANET DOWLING, Warden,

          Respondent - Appellee.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before GORSUCH, BALDOCK, and McHUGH, Circuit Judges.


      After Alvin Parker was convicted in Oklahoma of second degree murder, he

filed an unsuccessful application with the Oklahoma Pardon and Parole Board

seeking a commutation of his sentence. This, in turn and eventually, led him to

file a petition seeking habeas relief in federal court. In his petition, Mr. Parker

alleged that he is entitled to habeas relief because “the Parole Board arbitrarily

denied Petitioner the right to be considered for commutation” and because he was


      *
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order is not binding
precedent except under the doctrines of law of the case, res judicata, and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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
“denied his right to an impartial investigation and study of his application for

commutation.” On this basis, he claimed the denial of commutation violated his

rights under the Due Process Clause of the Fourteenth Amendment.

      The district court construed Mr. Parker’s petition as an action for relief

under 28 U.S.C. § 2241. The state court that sentenced Mr. Parker is located in

the territorial jurisdiction of the Western District of Oklahoma. However, he is

currently confined in the territorial jurisdiction of the Northern District of

Oklahoma.

      Some Tenth Circuit decisions hold that only the district of confinement has

jurisdiction over § 2241 actions. E.g., Bradshaw v. Story, 86 F.3d 164, 166 (10th

Cir. 1996); see also Phillips v. Kaiser, 47 F. App’x 507, 510 (10th Cir. 2002)

(unpublished). Others suggest a different rule for petitioners “under the judgment

and sentence of a State court of a State which contains two or more Federal

judicial districts.” 28 U.S.C. § 2241(d). In such cases, it is argued, both the

district of confinement and the district of the sentencing court should have

concurrent jurisdiction. E.g., Green v. Sirmons, No. 07-924-W, 2008 WL 649202,

at *2, *7 & n.11 (W.D. Okla. Mar. 10, 2008).

      The district court did not weigh in on this dispute, though, because it found

that under either approach, Mr. Parker’s appeal should be dismissed. If the court

lacked jurisdiction, it found, it would then have the choice between (1) ordering

the dismissal of the petition or (2) if it would be in the interests of justice,

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transferring the proceedings to the appropriate district. To see if such a transfer

would be in the interests of justice, district courts are permitted to “take a peek”

at the merits to avoid transferring a “clearly doomed” petition. Phillips, 47 F.

App’x at 511 (internal quotation marks omitted). Taking this glance, the district

court found that Mr. Parker’s due process claim was “clearly doomed” on the

merits, given that he has no inherent constitutional right to an early release from

his sentence and given that Oklahoma law itself creates no such liberty interest.

Accordingly, the court held, the commutation procedures Mr. Parker sought to

challenge could not have violated his constitutional rights.

      Alternatively, in the event the district court did have jurisdiction under

§ 2241, it found it would still dismiss the petition pursuant to its screening

authority under Rule 4 of the Rules Governing § 2254 Cases, on the ground that it

“plainly appears from the petition” that Mr. Parker was “not entitled to relief” for

the reasons outlined above.

      The court then proceeded to deny Mr. Parker a certificate of appealability

(COA) and leave to proceed in forma pauperis on appeal. Now before us, Mr.

Parker renews his requests for a COA and to proceed in forma pauperis.

      To receive a COA, Mr. Parker must make a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c). 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

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a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(internal quotation marks omitted).

      Mr. Parker has not met this standard. Under Oklahoma law, upon favorable

recommendation by a majority vote of the Pardon and Parole Board, the power to

commute a sentence is in the sole discretion of the Governor. Okla. Stat. tit. 57,

§ 332.2(A). Thus, the prospect of commutation is “necessarily a speculative

event,” one in which the prisoner “has no liberty interest protected by the Due

Process Clause.” Dopp v. Patton, No. CIV-14-453-D, 2014 WL 3700852, at *2-3

(W.D. Okla. July 25, 2014); accord Ward v. Province, 283 F. App’x 615, 618

(10th Cir. 2008) (unpublished). So, Mr. Parker’s claim was, indeed, “clearly

doomed,” and the district court was right to order its dismissal.

      The application for a COA and the motion for leave to proceed in forma

pauperis are denied and this appeal is dismissed. Mr. Parker is reminded of his

obligation to pay the filing fee in full.



                                                  ENTERED FOR THE COURT


                                                  Neil M. Gorsuch
                                                  Circuit Judge




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