                                                                                  FILED
                                                                      United States Court of Appeals
                                                                              Tenth Circuit

                     UNITED STATES COURT OF APPEALS                           May 18, 2011
                                   TENTH CIRCUIT                          Elisabeth A. Shumaker
                                                                              Clerk of Court

RONALD HUTCHINSON,

       Petitioner - Appellant,

v.                                                           No. 11-1022
                                                              (D. Colo.)
KEVIN MILYARD, Warden; THE                      (D.C. No. 1:08-CV-00797-CMA-BNB)
ATTORNEY GENERAL OF THE STATE
OF COLORADO,

       Respondents - Appellees.




                   ORDER DENYING LEAVE TO PROCEED
                     ON APPEAL IN FORMA PAUPERIS,
                 DENYING CERTIFICATE OF APPEALABILITY,
                        AND DISMISSING APPEAL


Before O'BRIEN, McKAY, and TYMKOVICH, Circuit Judges.


       Ronald Hutchinson, a Colorado state prisoner proceeding pro se,1 wants to appeal

from the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition. He alleged his

sentence (which was enhanced because the legislature determined the crime for which he

was convicted presented an “extraordinary risk of harm to society”) and the application

of mandatory parole violated his constitutional rights under Apprendi v. New Jersey, 530



       1
        We liberally construe Hutchinson’s pro se filings. See Ledbetter v. City of
Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). The district court

concluded he did not make “a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). Because its decision is not debatably incorrect we deny his

request for a Certificate of Appealability (COA).

                                   I.   BACKGROUND

       Hutchinson pled guilty to the distribution of drugs (a class three felony).2 A class

three felony in Colorado ordinarily carries a sentence of imprisonment ranging from four

to twelve years plus five years of mandatory parole. Colo. Rev. Stat. § 18-1.3-

401(1)(a)(V)(A) (2005). However, the Colorado Legislature designated certain class

three felonies as “extraordinary risk” crimes and increased the maximum presumptive

range of imprisonment by four years. Colorado Revised Statutes § 18-1.3-401(10)

(2005). The offense to which Hutchinson pled guilty is one such crime and the range of

imprisonment was, therefore, four to sixteen years. He was sentenced to sixteen years

imprisonment followed by five years of mandatory parole.

       Hutchinson filed a state petition for post-conviction relief claiming the applicable

Colorado statutes imposed a sentencing enhancement based on facts not contained in the

indictment or the jury’s verdict in violation of Apprendi and Blakely. The state district

court denied relief and the Colorado Court of Appeals affirmed in an unpublished

opinion. The Court of Appeals stated:

       Because the extraordinary risk designation is an inherent part of the


       2
        In a separate case, Hutchison pled guilty to drug possession (a class four felony).
The sentence in that case is irrelevant to this appeal.

                                            -2-
       governing statutory scheme, any increase in the presumptive range flows
       automatically from the fact of conviction. Therefore, contrary to his
       assertion, defendant is not entitled to a jury determination on the issue of
       whether the offense posed an extraordinary risk of harm to society. See
       People v. Kendrick, 143 P.3d 1175, 1176 (Colo. App. 2006).

(R. Vol. 1 at 17.)

       Hutchinson further argued the imposition of mandatory parole caused his sentence

to exceed the statutory maximum. The court relied on Kendrick to reject this claim as

well. In Kendrick, the Colorado Court of Appeals explained that mandatory parole in

addition to a defendant’s sentence does not violate either Apprendi or Blakely because

“the use of the term ‘maximum sentence’ [under Colorado law] is intended to refer only

to the length of imprisonment, separate from any period of parole.”3 Kendrick, 143 P.3d

at 1177. Following the Colorado Supreme Court’s denial of his request for certiorari,

Hutchinson filed this § 2254 petition.

       The district court, adopting the recommendation of the magistrate judge (over

Hutchinson’s objections), concluded the determination of the Colorado Court of Appeals

was not contrary to or an unreasonable application of Supreme Court precedent. It also

denied a COA and his subsequent request to proceed in forma pauperis (ifp) on appeal

because he failed provide a verified prisoner trust account statement. Rather than

correcting his deficient request in the district court Hutchinson filed a request to proceed


       3
        Colorado’s mandatory parole is different than parole under traditional sentencing
schemes. Under traditional sentencing schemes, an inmate who is released on parole
“exchanges a certain portion of his or her prison term for a period of non-imprisonment
custody.” Craig v. People, 986 P.2d 951, 958 n.3 (Colo. 1999) (emphasis omitted). In
Colorado, however, even a prisoner who serves an entire prison sentence is still subject to
the conditions of parole for the additional mandatory period. Id.

                                            -3-
ifp with this Court. We deny his ifp request because his application for a COA is

frivolous.4

                                    II.   DISCUSSION

       A COA is a jurisdictional prerequisite to our review of a petition for a writ of

habeas corpus. Miller–El v. Cockrell, 537 U.S. 322, 336 (2003). We will issue a COA

“only if the applicant has made a substantial showing of the denial of a constitutional

right.” 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.” Slack v. McDaniel, 529 U.S.

473, 484 (2000) (quotations omitted).

       In Blakely, the Supreme Court reiterated the holding of Apprendi that “‘[o]ther



       4
         Hutchinson provided the necessary income certification in his ifp application to
this Court within ten days of receiving the district court’s order denying permission to
proceed ifp on appeal. He does not explain why he could not have presented the same
excuses and cured this deficiency in the district court. A motion to proceed ifp on appeal,
supported by required documents, must be made in the first instance to the district court,
thereby giving it the opportunity to decide if “it is not taken in good faith.” 28 U.S.C.
1915 § (a)(3); see also Fed. R. App. P. 24(a)(1). Only if that motion is denied is there
occasion to file an ifp motion with this Court. See Fed. R. App. P. 24(a)(5). The filing
must be made within thirty days after notice of a district court’s denial. Id. Our
consideration of an appropriate and timely motion is not a review of the district court’s
denial, but an original consideration. Boling–Bey v. U.S. Parole Comm'n, 559 F.3d 1149,
1154 (10th Cir. 2009). Hutchinson failed to properly request to proceed ifp on appeal in
the district court. His motion was not decided on the merits; rather he failed to supply the
required information. He should have, as a pre-condition to filing an ifp motion with this
Court, submitted the appropriate documentation to the district court to allow it an
opportunity to decide his request on the merits. Nevertheless, solely in the interest of the
expeditious processing of appeals, we will consider his ifp motion.

                                            -4-
than the fact of a prior conviction, any fact that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.’” Blakely, 542 U.S. at 301 (quoting Apprendi, 530 U.S. at 490). In

applying this holding to the State of Washington’s determinate sentencing scheme,

Blakely clarified that the “statutory maximum” is “not the maximum sentence a judge

may impose after finding additional facts, but the maximum he may impose without any

additional findings.” Id. at 303-04.

       As the state district court, the Colorado Court of Appeals, and the federal district

court explained this is not an Apprendi or Blakely issue as no judicial fact finding was

involved. Hutchinson’s sentence was based solely on the charge to which he pled guilty,

a pure statutory classification. The Colorado Court of Appeals’ conclusion is not

contrary to established federal law.

       To proceed ifp on appeal, Hutchinson “must show a financial inability to pay the

required filing fees and the existence of a reasoned, nonfrivolous argument on the law

and facts in support of the issues raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d

502, 505 (10th Cir. 1991) (emphasis added). We have solicitously reviewed his filings.

He has failed to pass the threshold. An appeal on a matter of law is frivolous where

“[none] of the legal points [are] arguable on their merits.” Anders v. California, 386 U.S.

738, 744 (1967). Hutchinson’s arguments are contrary to settled law; and he makes no

reasoned argument for modification of that law.

       Hutchinson’s application for a COA and his motion to proceed ifp on appeal are

DENIED. This matter is DISMISSED. Hutchinson must pay the filing and docket fees

                                            -5-
in full to the clerk of the district court. See Kinnell v. Graves, 265 F.3d 1125, 1129 (10th

Cir. 2001).

                                          Entered by the Court:

                                          Terrence L. O’Brien
                                          United States Circuit Judge




                                            -6-
