                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                          July 3, 2007
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court


 BILL HUN TER,

                 Petitioner-A ppellant,                  No. 07-7027
          v.                                            (E.D. of Okla.)
 STEVE BECK, W arden,                            (D.C. No. CV-06-173-RAW )

                 Respondent-Appellee.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. **


      Bill Hunter seeks habeas relief under 28 U.S.C. § 2241 from his

incarceration at the M ack Alford Correctional Center in Stringtown, Oklahoma.

State prisoners must first obtain a certificate of appealability (COA) to appeal the

denial of a habeas petition pursuant to § 2241. See Montez v. M cKinna, 208 F.3d




      *
         This order and judgment is not binding precedent except under the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 has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
862, 867 (10th Cir. 2000). The district court denied habeas relief and declined to

issue a C OA . 10th C ir. R . 22.1(C). Hunter requests this court grant him COA.

      As a pro se appellant, we construe Hunter’s pleadings liberally. Cummings

v. Evans, 161 F.3d 610, 613 (10th Cir. 1998). W e will issue a CO A “only if the

applicant has made a substantial showing of the denial of a constitutional right.”

28 U .S.C . § 2253(c)(2). Finding that Hunter has not satisfied this standard, we

DENY his request for a COA and DENY his petition for habeas relief.

                                  I. Background

      Hunter raises four claims in seeking COA: (1) he asserts that he has served

his sentence because the 1997 Truth in Sentencing M atrix defined First Degree

M urder to be no less than 18 years and no more than 60 years, with credit for

good time; (2) he suggests the lack of appeal process from the parole process and

the failure of the Parole Board to recommend for or against parole to the governor

violate due process; (3) he argues the Parole Board has illegally refused to grant

him annual parole hearings in violation of due process and the prohibition on ex

post facto laws; and (4) he finally argues that the district court ignored a number

of pending motions before it, including his motion for appointment of counsel

based on the inadequacy of the legal tools available to him in prison and his

disabled status under the Americans with Disabilities Act (ADA). 1

      1
        In addition to suggesting the ADA requires appointment of counsel,
discussed infra, H unter suggests that the ADA also means his motion for COA
                                                                    (continued...)

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                                   II. Analysis

      “On habeas review, this court does not address issues that have been

defaulted in state court on an independent and adequate state procedural ground,

unless the petitioner can demonstrate cause and prejudice or a fundamental

miscarriage of justice.” Anderson v. Sirmons, 476 F.3d 1131, 1140 (10th Cir.

2007). In this case, Hunter failed to comply with an Oklahoma state procedural

rule that required him to bring his Truth in Sentencing claim during an earlier

1999 proceeding, which he initiated. 2 Hunter has not argued the procedural rule

is inadequate. H e has not demonstrated cause “that cannot fairly be attributed to

him.” Coleman v. Thom pson, 501 U.S. 722, 753 (1991). And he has not shown a




      1
        (...continued)
should be granted. He then cites to several cases where ADA appeals were taken
forward. None of these cases involved a habeas motion or request for COA under
the strictures of the Antiterrorism and Effective Death Penalty Act (AEDPA). W e
do not grant C OA on the basis of a petitioner’s disabled status, we grant COA
based on the denial of a constitutional right.
      2
         Hunter was released on parole in 1987, but his parole was revoked on
February 7, 1996. On June 29, 1999, Hunter challenged that revocation by filing
an application for post-conviction relief, in which he only challenged the
lawfulness of his parole revocation. The federal district court below disposed of
Hunter’s first claim in the present action for the same reasons that the Oklahoma
Criminal Court of Appeals and the Choctaw County District Court denied the
claim. Besides the fact that the Truth in Sentencing Act and its M atrix were
repealed by the Oklahoma legislature before they went into effect, Hunter should
have brought any claims created by the 1997 Act when he filed his 1999
application for post-conviction relief. By failing to bring the claim at that time,
state law procedurally barred consideration of the claim in a subsequent post-
conviction proceeding. Okla. Stat. tit. 22, § 1086.

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fundamental miscarriage of justice will occur by compliance with the procedural

rule. 3 Therefore, COA is denied on the first claim.

      Hunter next challenges, under due process, the Parole B oard’s refusal to

send its recommendation denying parole to the governor and the lack of an

appeals process for denials by the parole board. “The Due Process Clause applies

when government action deprives a person of liberty or property.” M alek v.

Haun, 26 F.3d 1013, 1015 (10th Cir. 1994) (citations and quotations omitted). “A

liberty interest may arise from the Constitution itself, by reason of guarantees

implicit in the word ‘liberty,’ or it may arise from an expectation or interest

created by state laws or policies.” Estate of DiM arco v. Wyo. Dep’t of Corr., 473

F.3d 1334, 1339 (10th Cir. 2007) (citations and quotations omitted).

      No constitutional or otherw ise inherent right to parole exists before

expiration of a sentence, so we must find any existing liberty interest in the state

statutes governing Oklahoma parole. M alek, 26 F.3d at 1015. As w e noted in

Shirley v. Chestnut, 603 F.2d 805, 806 (10th Cir. 1979) (quoting Greenholtz v.

Nebraska Penal & Correctional Complex, 442 U.S. 1, 12 (1979)), the question of

whether a state parole statute has created an expectation of release such that a

liberty interest has been created is one that must be answered on a case-by-case

basis. W here the state statute leaves the parole decision to the discretion of the

      3
        A fundamental miscarriage of justice exists only in rare instances where
“a constitutional violation” has probably led to “the conviction of one innocent of
[a] crime.” Gilbert v. Scott, 941 F.2d 1065, 1068 n.2 (10th Cir. 1991).

                                         -4-
parole board, no expectations of freedom from imprisonment can arise and no

liberty interest has been created. See Malek, 26 F.3d at 1015–16.

      After finding Oklahoma’s parole system discretionary in Shirley v.

Chestnut, we have upheld that determination over the years in several unpublished

decisions. See, e.g., M aghe v. Koch, 107 F.3d 21 (10th Cir. 1997), Brooks v.

Oklahoma Pardon & Parole Bd., 13 F.3d 404 (10th Cir. 1993). Nothing has

changed to alter this analysis. First of all, no amendments to the Oklahoma Code

have occurred that change the discretionary nature of Oklahoma’s parole system.

Secondly, the state constitution only requires the Parole B oard to impartially

study parole applications and make its recommendation to the governor by

majority vote. Okla. Const. art. VI, § 10.

      Third, while the Oklahoma Code appears to require the Parole B oard to

make an advisory recommendation to the governor, Okla. Stat. tit. 57, § 332.2, the

Code elsewhere makes clear that an application need only be forwarded on to the

governor if approved because “[i]f an application for pardon is not approved by

the Pardon and Parole Board, the application for pardon shall be deemed denied.”

Okla. Stat. tit. 57, § 332.19. 4 W hile the statute and the state constitution prohibit

the Oklahoma Parole Board from granting parole to certain prisoners, see Okla.

Const. art. VI, § 10 (removing consideration for those sentenced to death or life

      4
         Even if the Parole Board is mandated to follow a certain procedure in its
parole review, as we explain infra, the expectation of receiving a particular
process is not protected in and of itself by due process.

                                           -5-
without parole) and Okla. Stat. tit. 57, § 332.7(G), there are no statutorily

mandated grants of parole. Lacking a statutory entitlement to parole, the

Oklahoma state system did not create an expectation of liberty via parole. “That

the state holds out the possibility of parole provides no more than a mere hope

that the benefit will be obtained” and mere hope for liberty “is not protected by

due process.” Greenholtz, 442 U.S. at 11. W ithout an expectation of liberty

created by the state, no process is due and the Parole B oard may choose to handle

its recommendations to the governor and appeals or lack thereof as it sees fit

without violating due process.

      Next, Hunter contends the shift from an annual parole hearing to a parole

hearing every three years denied him due process and violates the ex post facto

laws. The current statutory language mandates processes that might give Hunter

legitimate expectations in receiving a hearing 5 — prisoners “shall be eligible for

consideration for parole” when certain conditions are met, O kla. Stat. tit. 57, §

332.7(A); once those conditions are met, the potential parolee “shall be



      5
         The shift in parole hearings from one year to three years was passed by
the O klahoma legislature in 1998. According to O kla. Stat. tit. 57, § 332.7(D)(1),
a prisoner denied parole cannot be considered for parole again until three years
have passed, if the person was convicted of a violent crime under O kla. Stat. tit.
57 § 571. Hunter’s crime of first-degree murder is a violent crime under the
statute and according to his statement of facts, he was denied parole in 2007.
Petitioner’s Brief at 2. For the sake of argument, we assume Hunter had an
expectation of annual parole hearings prior to the 1998 amendments, which
shifted hearings to every three years, as the record does not make clear whether
this is in fact the case.

                                          -6-
considered at the earliest such date” Okla. Stat. tit. 57, § 332.7(D)— but “an

expectation of receiving process is not, without more, a liberty interest protected

by the Due Process Clause.” Olim v. Wakinekona, 461 U.S. 238, 251 n.12 (1983).

As the Supreme Court explained in Olim, “a liberty interest is . . . a substantive

interest of an individual; it cannot be the right to demand needless formality.

Process is not an end in itself. Its constitutional purpose is to protect a

substantive interest to which the individual has a legitimate claim of entitlement.”

461 U.S. at 250 (citations and quotations omitted). There are no liberty interests

in the process itself, so Hunter cannot claim due process rights were violated by

changing the parole procedures absent an established liberty interest in parole

itself, which we already established above does not exist here. As for Hunter’s ex

post facto claims against the elimination of annual review, we rejected a similar

challenge to the Oklahoma statute challenged here in Henderson v. Scott, 260

F.3d 1213 (10th Cir. 2001).

      Finally, Hunter challenges the district court’s determination that the rest of

his motions were moot. W e agree with the district court’s dismissal of the

remainder of Hunter’s motions, but take a moment to address the one motion

specifically briefed by Hunter. He claims the district court should have granted

his m otion for the appointment of counsel and seems to argue that the ADA

requires counsel be provided for him. In this circuit, “the district court has broad

discretion to appoint counsel for indigents . . . and its denial of counsel will not

                                          -7-
be overturned unless it would result in fundamental unfairness impinging on due

process rights.” William s v. M eese, 926 F.2d 994, 996 (10th Cir. 1991). W e find

no due process violations here, nor any factual support in the record for

petitioner’s claim that he is disabled, nor any support for the proposition the AD A

requires us to appoint counsel if Hunter is in fact disabled. Hunter’s own cogent

and well-argued brief and motion for COA demonstrate his independent capability

of petitioning this court with the resources available to him.

      Accordingly, we DENY Hunter’s petition for habeas and DENY his petition

for C OA, finding that no constitutional rights were denied.

                                                     Entered for the Court

                                                     Timothy M . Tymkovich
                                                     Circuit Judge




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