                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 October 20, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                  TENTH CIRCUIT


 LYNN E. SCOTT,

          Petitioner-Appellant,
                                                         No. 09-1276
 v.                                          (D.C. No. 07-cv-02365-WDM-MJW)
                                                          (D. Colo.)
 KEVIN MILYARD, * Warden S.C.F.,

          Respondent-Appellee.


           ORDER DENYING CERTIFICATE OF APPEALABILITY **


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.


      Lynn Eugene Scott, a Colorado state prisoner appearing pro se, applies for

a certificate of appealability (“COA”) to challenge the district court’s denial of

his amended application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241


      *
              We take judicial notice that the last name of the Warden at Sterling
Correctional Facility is “Milyard” rather than “Millard” (the latter name
appearing on our docket sheet for this case). The captions on the parties’
appellate filings evince the true state of affairs, and we accordingly amend the
caption here to conform to this fact.
      **
              This Order is not binding precedent, except under the doctrines of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. After examining the briefs and the appellate record, this three-judge panel
determined unanimously that oral argument would not be of material assistance in
the determination of this matter. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
(the “petition”). 1 He also moves for leave to proceed in forma pauperis on

appeal. We exercise jurisdiction pursuant to 28 U.S.C. §§ 1291 and

2253(c)(1)(A). See Montez v. McKinna, 208 F.3d 862, 869 (10th Cir. 2000)

(holding that § 2253(c)(1)(A) applies when the state habeas petitioner proceeds

under § 2241). For the reasons set forth below, we deny Mr. Scott’s request for a

COA, deny his motion to proceed in forma pauperis, and dismiss his appeal.

                                 BACKGROUND

      In the petition, Mr. Scott argues that the Colorado State Board of Parole

(“Board”) violated his procedural and substantive due process rights.

Specifically, he appears to allege that the Board (1) rescinded his parole without a

hearing, (2) delayed his release on parole, and (3) revoked his parole for more

than the authorized amount of time. This matter was referred to a magistrate

judge for initial proceedings, pursuant to 28 U.S.C. § 636(b)(1). The magistrate

judge recommended that the district court deny and dismiss Mr. Scott’s petition.

Mr. Scott filed an objection to this recommendation, arguing that he has a right to

be released under the Colorado mandatory parole statute. He also claimed that

the Board violated his federal due process rights by rescinding his parole without

a hearing, delaying his release, and setting conditions on his release without the

requisite authority. Upon de novo review, the district court adopted the

      1
            Mr. Scott filed a pro se motion for a certificate of appealability
(“COA”) and opening brief. We construe these pro se filings liberally. See Van
Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).

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recommendation and denied Mr. Scott’s petition.

      The district court concluded that Mr. Scott could not make out a procedural

or substantive due process claim. In particular, the district court adopted the

magistrate judge’s finding that Mr. Scott has no due process right to parole

because the grant of parole is wholly discretionary under the relevant Colorado

statutory scheme. Greenholtz v. Inmates of the Neb. Penal & Corr. Complex, 442

U.S. 1, 11-12 (1979); Malek v. Haun, 26 F.3d 1013, 1015 (10th Cir. 1994); see

Colo. Rev. Stat. § 17-2-201(4)(a), (9)(a). Although Mr. Scott claimed that he was

entitled to “mandatory parole” under Colorado law, the district court noted that

the Board based its parole decision on statutory provisions governing the

discretionary release of a prisoner before the end of the prisoner’s imposed term

of incarceration. 2 The district court also found that the Board had not violated

Mr. Scott’s due process rights when it rescinded his parole without a hearing

because it had not established an “actual release date,” meaning that Mr. Scott

had “no concrete expectation of release and no liberty interest protected by due

process.” R., Vol. 1 at 192.

      Furthermore, the district court concluded that Mr. Scott had no due process



      2
            The district court also explained that “mandatory parole” under
Colorado law “is mandatory in the sense that it is required to be included in a
sentence involving imprisonment, not that release is mandated before the term of
imprisonment is completed.” R., Vol. 1 at 191 (Order on Recommendation of
Magistrate Judge, dated May 11, 2009 (citing People v. Perea, 74 P.3d 326, 333-
34 (Colo. Ct. App. 2002)).

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rights because his grant of parole was “contingent upon [his] successful

completion of the reentry program.” Id. at 191. Although Mr. Scott alleged that

a due process violation arose from the delay in his release, the district court found

that “[n]othing in the statute requires that an inmate be released immediately upon

the issuance of a decision granting parole or otherwise restricts the board’s

discretion in this regard.” Id. at 191-92. The district court also noted that the

Board acted within its statutory authority to establish preparole facilities and

programs, as well as to impose conditions on the grant of parole. Finally, the

district court found that the Board had the authority to extend Mr. Scott’s

reincarceration period following the revocation beyond the 180-day

reincarceration period typically imposed on parolees after revocation. The

district court subsequently denied Mr. Scott’s motion to reconsider its order.

      The district court denied Mr. Scott’s request for a COA and his motion to

proceed in forma pauperis on appeal. This application for a COA and motion for

leave to proceed in forma pauperis followed.

                                   DISCUSSION

I.    Certificate of Appealability

      “A COA is a jurisdictional pre-requisite to our review.” Clark v.

Oklahoma, 468 F.3d 711, 713 (10th Cir. 2006) (citing Miller-El v. Cockrell, 537

U.S. 322, 336 (2003)). We will issue a COA only if Mr. Scott “has made a

substantial showing of the denial of a constitutional right.” United States v. Silva,


                                          -4-
430 F.3d 1096, 1100 (10th Cir. 2005) (quoting 28 U.S.C. § 2253(c)(2)). To make

this showing, Mr. Scott must demonstrate “that reasonable jurists could debate

whether . . . the petition should have been resolved in a different manner or that

the issues presented were adequate to deserve encouragement to proceed further.”

Miller-El, 537 U.S. at 336 (internal quotation marks omitted).

      In evaluating a request for a COA, we need not engage in a “full

consideration of the factual or legal bases adduced in support of the claims.” Id.

We instead undertake “a preliminary, though not definitive, consideration of the

[legal] framework” applicable to each claim. Id. at 338. Although Mr. Scott is

not required to demonstrate that his appeal will succeed, he must “prove

something more than the absence of frivolity or the existence of mere good faith.”

Id. (internal quotation marks omitted).

      We have reviewed Mr. Scott’s appellate filings, the magistrate judge’s

recommendation, the district court’s order, and the entire record on appeal,

pursuant to the framework established in Miller-El. The district court’s resolution

of the petition is not reasonably subject to debate. Furthermore, Mr. Scott has not

raised any claims that are adequate to deserve further proceedings. Thus, Mr.

Scott has not “made a substantial showing of the denial of a constitutional right”

and is not entitled to a COA.

II.   Motion to Proceed In Forma Pauperis

      We also deny Mr. Scott’s motion to proceed in forma pauperis. To qualify


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for in forma pauperis status, a petitioner must show “a financial inability to pay

the required fees” and “a reasoned, nonfrivolous argument on the law and facts in

support of the issues raised on appeal.” McIntosh v. U.S. Parole Comm’n, 115

F.3d 809, 812 (10th Cir. 1997) (quoting DeBardeleben v. Quinlan, 937 F.2d 502,

505 (10th Cir. 1991)) (internal quotation marks omitted). Although the district

court previously allowed Mr. Scott to proceed in forma pauperis, it denied his

motion for leave to proceed in forma pauperis on appeal. The district court found

that “the appeal is not taken in good faith because [Mr. Scott] has not shown the

existence of a reasoned, nonfrivolous argument on the law and facts in support of

the issues raised on appeal.” R., Vol. 1 at 209 (Order Denying Leave to Proceed

In Forma Pauperis on Appeal, dated July 7, 2009). We agree with the district

court that Mr. Scott’s arguments are not well reasoned and fail to demonstrate an

absence of frivolity.

                                  CONCLUSION

      For the foregoing reasons, we DENY Mr. Scott’s application for a COA,

DENY his motion to proceed in forma pauperis, and DISMISS his appeal.

                                ENTERED FOR THE COURT


                                Jerome A. Holmes
                                Circuit Judge




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