                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                    UNITED STATES COURT OF APPEALS                     July 23, 2013
                                 TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                      Clerk of Court


 JEROME T. SCAIFE,

               Petitioner - Appellant,                   No. 13-3125
          v.                                             (D. Kansas)
 KANSAS DEPARTMENT OF                         (D.C. No. 5:13-CV-03059-RDR)
 CORRECTIONS, PRISONER
 REVIEW BOARD,

               Respondents - Appellees.


                            ORDER DENYING
                     CERTIFICATE OF APPEALABILITY *


Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.



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

unanimously that oral argument would not materially assist in the determination

of this matter. 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        This order is not binding precedent, except under the doctrines of law of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. 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. 32.1.
      Petitioner and applicant, Jerome T. Scaife, a Kansas state parolee

proceeding pro se, seeks a certificate of appealability (“COA”) to enable him to

appeal the dismissal of his 28 U.S.C. § 2241 petition. That petition sought to

have his parole terminated. Finding that Mr. Scaife does not meet the

requirements for the issuance of a COA, we deny him a COA and dismiss this

appeal.

      As summarized recently by the Kansas Court of Appeals:

            On November 3, 1989, Scaife was sentenced to 10 to 40 years’
      imprisonment for aggravated robbery. At a hearing on October 28,
      1994, the district court found him “ineligible for Retroactive
      Application of Sentencing Guidelines.” Scaife was granted parole
      twice but ended up back in prison by violating his parole conditions.
      Since being released on parole for a third time, he has earned a
      professional cooking certificate, bought a home, and filed several
      requests for early discharge.

Scaife v. Kansas Dept. of Corr., 286 P.3d 1160 (Kan. Ct. App. 2012).

      Mr. Scaife filed the instant 28 U.S.C. § 2241 petition, apparently seeking to

have his parole terminated. The district court dismissed the petition, finding that

the state of Kansas’s highest court had rejected the issues presented in reliance on

an independent and adequate state procedural ground. The district court did not

grant Mr. Scaife a COA but it granted him the right to proceed in forma pauperis

on appeal. This request for a COA followed.

      “A petition under . . . 28 U.S.C. § 2241 attacks the execution of a sentence

rather than its validity and must be filed in the district where the prisoner is


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confined.” Licon v. Ledezma, 638 F.3d 1303, 1311 (10th Cir. 2011) (quoting

Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996)). Thus, a court may grant

habeas corpus relief where an applicant is “in custody in violation of the

Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3).

      Mr. Scaife must obtain a COA in order to appeal the district court’s denial

of his habeas petition. 28 U.S.C. § 2253. A COA may be issued only upon a

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

§ 2253(c)(2). When the district court denies a habeas petition on procedural

grounds and does not reach the prisoner’s underlying constitutional claims, a

COA may issue only when “the prisoner shows, at least, that jurists of reason

would find it debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S.

473, 484 (2000).

      The district court described Mr. Scaife’s state proceedings as follows:

      The materials attached to the [§ 2241] petition show petitioner
      pursued relief in the state courts pursuant to K.S.A. 60-1501. The
      state district court conducted a hearing and determined that petitioner
      was advised in 1993 that he was not eligible to have his sentence
      converted under the Kansas Sentencing Guidelines, that a hearing
      held in 1994 reached the same conclusion, and that the petition under
      60-1501 was not timely, because the statute requires that an action be
      commenced within 30 days from the date the challenged action
      becomes final. The Kansas Court of Appeals affirmed the dismissal
      of the petition, finding that petitioner failed to contact the Sentence
      Computation Unit before he commenced the action under 60-1501,

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      and that he had failed to file the petition for over 17 years after the
      district court found him ineligible for sentence conversion. The
      Kansas Supreme Court denied review in March 2013.

Order at 1-2, R. Vol. 1 at 74-75. Having found that Mr. Scaife’s claims were

determined to be procedurally barred by the Kansas state courts, the district court

then found “no ground to excuse the petitioner’s procedural default.” Id. at 75.

      While Mr. Scaife’s pleadings are not easily understood or clearly

articulated, we nonetheless can determine that the district court’s decision is

amply supported by the law and the record. Its propriety could not be the subject

of debate among reasonable jurists.

      For the foregoing reasons, we DENY a COA and DISMISS this matter.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




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