                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                    UNITED STATES COURT OF APPEALS January 5, 2012
                                                              Elisabeth A. Shumaker
                                 TENTH CIRCUIT                    Clerk of Court



 LYNN EUGENE SCOTT,

               Petitioner - Appellant,                   No. 11-1446
          v.                                            (D. Colorado)
 WARDEN OF THE BUENA VISTA                    (D.C. No. 1:10-CV-02716-WJH)
 CORRECTIONAL FACILITY,

               Respondent - Appellee.


                            ORDER DENYING
                     CERTIFICATE OF APPEALABILITY *


Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges.




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

unanimously that oral argument would not materially assist in the determination

of this matter. 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        This order is not binding precedent, except under the doctrines of law of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.
      Lynn Eugene Scott, proceeding pro se, seeks a certificate of appealability

(“COA”) in order to appeal the dismissal of his petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2241. We deny Mr. Scott a COA and dismiss this

matter.



                                BACKGROUND

      Mr. Scott was convicted in Colorado state court on two different drug

counts and, in March 2000, was sentenced to ten years’ imprisonment with the

Colorado Department of Corrections (“DOC”), plus a five-year period of

mandatory parole. In May 2004, he was sentenced to six months’ imprisonment

and a two-year period of parole, respectively, for convictions on two charges of

attempted escape. On June 19, 2006, the Colorado Board of Parole granted

Mr. Scott early release to parole and ordered the mandatory period of parole (five

years) to commence on April 11, 2007.

      On July 3, 2007, a parole complaint was filed, alleging that Mr. Scott had

violated numerous provisions of his parole, including absconding from parole

supervision. Accordingly, on July 9, 2007, the Parole Board found Mr. Scott

guilty of absconding and committing various other violations and revoked Mr.

Scott’s parole for 180 days. As a result, Mr. Scott returned to the DOC to serve

his revocation time, and his reparole date was scheduled for January 5, 2008.




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      On October 19, 2007, Mr. Scott was convicted of a class II Code of Penal

Discipline (“COPD”) infraction for advocating for a facility disruption at Sterling

Correctional. 1 This conviction is the subject of the instant habeas action. In a

hearing on November 14, 2007, the Parole Board rescinded Mr. Scott’s January 5,

2008, reparole date and ordered that the revocation period be extended by 180

days. Mr. Scott’s reparole date was continued to May 12, 2008.

      On February 19, 2008, Mr. Scott was convicted of a class II COPD

infraction for possessing another inmate’s legal document. In a hearing on

March 11, 2008, the Parole Board rescinded Mr. Scott’s May 12, 2008, reparole

date and ordered that the period of revocation be extended by 150 days.

Mr. Scott’s reparole date was continued to August 5, 2008.

      Mr. Scott was reparoled on August 5, 2008. On September 12, 2008, a

parole complaint was filed against Mr. Scott, alleging various new violations of

the terms of his parole, including absconsion from parole supervision and

committing new crimes. Following a November 20, 2008, hearing, the Parole

Board found Mr. Scott guilty of several parole violations and revoked his parole

for the remainder of his term. He was therefore returned to the custody of the



      1
        The sanctions imposed for this conviction were ten days of punitive
segregation, with credit for ten days served, and thirteen days lost in good time
credits. Mr. Scott filed a complaint in state district court, which court upheld the
disciplinary conviction. The Colorado Court of Appeals affirmed, and the
Colorado Supreme Court denied certiorari.

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DOC on November 24, 2008, to serve his parole revocation period. Mr. Scott’s

current discharge date is estimated to be May 3, 2012.

      Mr. Scott brought the instant habeas action on November 5, 2010. He

challenged the validity of his October 19, 2007, prison disciplinary conviction for

advocating a facility disruption, arguing that it violated his Fourteenth

Amendment Due Process Clause rights. The Warden, as respondent, did not

assert any affirmative defenses such as timeliness or failure to exhaust state court

remedies.

      After a series of motions, responses, and other pleadings were addressed,

the Warden filed a motion to dismiss the matter as moot. The district court held

that it was moot, stating as follows:

      In the proceeding, Petitioner challenges the constitutionality of his
      October 2007 disciplinary conviction which caused the Parole Board
      to postpone Petitioner’s reparole date for several months. However,
      once Petitioner was reparoled on August 5, 2008, he no longer had a
      redressable injury arising from the postponement. The Court cannot
      shorten the period of the postponement because it was terminated by
      Petitioner’s reparole. As such, “the best this court could do for him
      would be to declare [in an advisory opinion] that he spent longer in
      prison than he should have . . . . That is not enough to satisfy Article
      III.”

Order at 5 (quoting Rhodes v. Judiscak, 653 F.3d 1146, 1150 (10th Cir. 2011), R.

Vol. 1 at 207. The district court went on to consider whether Mr. Scott had

established the existence of collateral consequences as a result of the

postponement of his parole following his 2007 conviction, and found that he had


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not. The court accordingly granted the Warden’s motion to dismiss that petition

as moot, denied the petition for a writ of habeas corpus for lack of jurisdiction,

and denied Mr. Scott a COA. Mr. Scott now seeks a COA from us to enable him

to appeal the dismissal of his petition.



                                    DISCUSSION

      Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322,

336 (2003). That is, a state prisoner may not appeal from the denial of federal

habeas relief unless the district court or this court first issues a COA. 28 U.S.C.

§ 2253(c)(2). In order to make that showing, a prisoner 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) (internal quotation marks omitted). If the

district court denied the habeas petition “on procedural grounds without reaching

the prisoner’s underlying constitutional claim,” the prisoner must also, in order to

obtain a COA, demonstrate “that jurists of reason would find it debatable whether

the district court was correct in its procedural ruling.” Id.

      We agree with the district court that there is no debate as to whether

Mr. Scott’s claims are moot. No reasonable jurist would conclude otherwise.

Even if our opinion in Rhodes is insufficient to support the district court’s

                                           -5-
decision, the Supreme Court has made it clear that Mr. Scott’s claims must fail.

See Spencer v. Kemna, 523 U.S. 1 (1998) (holding that a petitioner attacking only

the wrongful termination of his parole status must prove collateral consequences

from the parole revocation).



                                 CONCLUSION

      For the foregoing reasons, we DENY a COA and DISMISS this matter. We

DENY Mr. Scott’s request to proceed on appeal in forma pauperis.

                                              ENTERED FOR THE COURT


                                              Stephen H. Anderson
                                              Circuit Judge




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