                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            OCT 2 2002
                                  TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                  Clerk

 FRED BARBER,

                Petitioner - Appellant,
                                                          No. 02-1141
           v.                                         (D.C. No. 02-Z-355)
                                                         (D. Colorado)
 BRIAN BURNETT; ATTORNEY
 GENERAL OF THE STATE OF
 COLORADO,

                Respondents - Appellees.


                             ORDER AND JUDGMENT           *




Before HENRY , ANDERSON , and HARTZ , Circuit Judges.




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

unanimously that oral argument would not materially assist 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       This order and judgment is not binding precedent, except under the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. 36.3.
       Petitioner Fred Barber seeks a certificate of appealability (COA) from this

court in order to appeal the district court’s order denying relief in his motion filed

pursuant to 28 U.S.C. § 2254. We deny Mr. Barber’s application and dismiss the

appeal.

       To be entitled to a COA, Mr. Barber must make a “substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district

court has rejected the constitutional claims on the merits, the showing required to

satisfy § 2253(c) is straightforward: The petitioner must demonstrate that

reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong,”    Slack v. McDaniel , 529 U.S. 473, 484 (2000).

       In 1988, Mr. Barber pled guilty in state court to possession of a controlled

substance. He was sentenced to four years imprisonment and three years

mandatory parole pursuant to the sentencing provisions contained in Colo. Rev.

Stat. 18-1-105(1)(a)(V). These provisions contain sentencing ranges for various

classes of offenses. The class in question here applies,   inter alia , to drug-related

convictions and convictions relating to sex offenses. Mr. Barber did not appeal,

but pursued state post-conviction proceedings which were rejected on the merits.

The gist of his argument in the state courts and, subsequently, in his federal

petition for habeas relief pursuant to 28 U.S.C. § 2254, is that those convicted of

sex offenses have not been receiving mandatory parole, allegedly in violation of


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the statute, while drug offenders are still subject to mandatory parole. He

contends that this disparate treatment violates his rights under the Equal

Protection Clause. The state district court, relying exclusively on state court

cases, held that there was no equal protection violation. The federal district

court, citing City of Cleburne v. Cleburne Living Ctr.       , 473 U.S. 432, 439 (1985)

(equal protection violation occurs when government treats one person differently

from another who is similarly situated) and         Penrod v. Zavaras , 94 F.3d 1399,

1406 (10th Cir. 1996) (same), agreed. Mr. Barber seeks a COA with respect to

the latter decision.

      Colorado appellate court decisions explain the state’s position with respect

to sentencing ranges under Colo Rev. Stat. § 18-1-105 as follows: The statute

“creates penalty ranges for classes of offenses and does not create classes of

offenders.” State v. Friesen, 45 P.3d 784, 785 (Colo. Ct. App. 2001),         cert.

denied , (Colo. Apr. 29, 2002),   cf. Lustgarden v. Gunter , 966 F.2d 552, 555 (10th

Cir. 1992) (holding that sex offenders are not members of a suspect classification

and decision to deny sex offender mandatory parole does not violate equal

protection as statute bears rational relationship to legitimate state interest of

monitoring sex offenders’ reintroduction into society).




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       Under this reasoning, Mr. Barber is not similarly situated to sex offenders.

He “is only ‘similarly situated’ with defendants who commit the same or similar

acts.” Friesen at 785. Thus, there is no equal protection violation.

       As the federal district court pointed out, this same reasoning is in accord

with cases decided by the Supreme Court. Even if Mr. Barber is regarded as a

class of one (although he proposes a rule applicable to all similarly situated drug

offenders), he has at no point in his voluminous submissions established that there

is “no rational basis for the difference in treatment,”   Village of Willowbrook v.

Olech , 528 U.S. 562, 564 (2000), between convicted drug offenders and convicted

sex offenders under the sentencing scheme in Colorado.      1




       It is by no means self evident that Colorado intended or has in fact treated
       1

sex offenders more lightly than drug offenders, as a general proposition, when
length of detention versus detention followed by parole is taken into account,
along with other considerations.

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      Mr. Barber’s motion for leave to proceed in forma pauperis is GRANTED.

For the reasons stated above, we conclude that Mr. Barber has failed to make a

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

§ 2253(c)(2). Accordingly, his application for a certificate of appealability is

DENIED and the appeal is DISMISSED.




                                       ENTERED FOR THE COURT



                                       Stephen H. Anderson
                                       Circuit Judge




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