                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                 December 2, 2008
                                 TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

 STEVEN A. GILKEY,

       Petitioner - Appellant,
                                                        No. 08-3203
 v.                                            (D.C. No. 5:07-CV-03110-SAC)
                                                          (D. Kan.)
 KANSAS PAROLE BOARD; LOUIS
 E. BRUCE,

       Respondents - Appellees.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before TACHA, KELLY, and McCONNELL, Circuit Judges.


      Steven A. Gilkey, an inmate appearing pro se, seeks to appeal from the

district court’s denial of his federal habeas petition, 28 U.S.C. § 2241. Mr.

Gilkey challenged the Kansas Parole Board’s (KPB) decision to deny him parole

and to delay further parole consideration for three years. The district court also

dismissed other claims without prejudice. He contends that the denial was based

on improper considerations: his history of substance abuse and his disability

which requires a back operation. According to Mr. Gilkey, the denial violates his

rights under the Constitution and the Americans with Disabilities Act (ADA), 42

U.S.C. §§ 12101-12213. Mr. Gilkey sought state habeas relief, which the state
courts denied. Gilkey v. Kan. Parole Bd., 147 P.3d 1096 (Kan. Ct. App. 2006)

(Table).

      A challenge to the execution of a state sentence is considered under 28

U.S.C. § 2241. See Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000).

Under § 2241, a writ of habeas corpus may extend to a prisoner “in custody in

violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.

§ 2241(c)(3). To appeal from the denial of the petition, Mr. Gilkey needs a

certificate of appealability (COA). 28 U.S.C. § 2253(c)(1)(A). This requires that

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

§ 2253(c)(2). He must demonstrate that the issues raised are debatable among

jurists, or that jurists could conclude that the questions deserve further

proceedings. Miller-El v. Cockrell, 537 U.S 322, 327 (2003).

      After considering the district court’s resolution, and giving due deference

to the state court’s resolution of the federal constitutional claims, Henderson v.

Scott, 260 F.3d 1213, 1215 (10th Cir. 2001), we conclude that the resolution of

Mr. Gilkey’s claims is not reasonably debatable. For substantially the reasons set

forth in the district court’s order, 1 R. Doc. 18,

      We DENY a COA and DISMISS the appeal.

                                         Entered for the Court


                                         Paul J. Kelly, Jr.
                                         Circuit Judge

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