                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               September 17, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                                 TENTH CIRCUIT



ABEL SAENZ-JURADO,

               Petitioner - Appellant,
                                                        No. 10-1170
          v.
                                                       (D. Colorado)
                                              (D.C. No. 1:09-CV-03018-ZLW)
JOHN W. SUTHERS, The Attorney
General of the State of Colorado,

               Respondent - Appellee.


                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.



      This matter is before the court on Abel Saenz-Jurado’s pro se requests for a

certificate of appealability (“COA”) and for permission to proceed on appeal in

forma pauperis. Saenz-Jurado seeks a COA so he can appeal the district court’s

dismissal, on timeliness grounds, 1 of his 28 U.S.C. § 2241 petition. See 28 U.S.C.

§ 2253(c)(1)(A) (providing no appeal may be taken from a “final order in a

habeas proceeding in which the detention complained of arises out of process

issued by a State court” unless the petitioner first obtains a COA); Montez v.


      1
       28 U.S.C. § 2244(d)(1) (setting out a one-year statute of limitations on
habeas petitions running from the date on which the conviction became final).
McKinna, 208 F.3d 862, 867 n.6 (10th Cir. 2000) (“[A] federal prisoner seeking

to challenge a detainer arising out of process issued by a state court must obtain a

COA in order to appeal a district court order denying relief.”). We grant Saenz-

Jurado’s request to proceed on appeal in forma pauperis. Because he has not,

however, “made a substantial showing of the denial of a constitutional right,”

28 U.S.C. § 2253(c)(2), this court denies Saenz-Jurado’s request for a COA and

dismisses this appeal.

      The granting of a COA is a jurisdictional prerequisite to Saenz-Jurado’s

appeal from the denial of his § 2241 petition. Miller-El v. Cockrell, 537 U.S.

322, 336 (2003). To be entitled to a COA, Saenz-Jurado must make “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To

make the requisite showing, he must demonstrate “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.” Id. (quotations omitted). When a district

court dismisses a § 2241 petition on procedural grounds, a petitioner is entitled to

a COA only if he shows both that reasonable jurists would find it debatable

whether he had stated a valid constitutional claim and debatable whether the

district court’s procedural ruling was correct. Slack v. McDaniel, 529 U.S. 474,

484-85 (2000). “Each component of [this necessary] showing is part of a

threshold inquiry, and a court may find that it can dispose of the application in a

                                         -2-
fair and prompt manner if it proceeds first to resolve the issue whose answer is

more apparent from the record and arguments.” Id. at 485. In evaluating whether

Saenz-Jurado has satisfied his burden, this court undertakes “a preliminary,

though not definitive, consideration of the [legal] framework” applicable to each

of his claims. Miller-El, 537 U.S. at 338. Although he need not demonstrate his

appeal will succeed to be entitled to a COA, he must “prove something more than

the absence of frivolity or the existence of mere good faith.” Id.

      Saenz-Jurado is currently in the custody of the United States Bureau of

Prisons serving a 159-month sentence for conspiracy to possess with intent to

distribute 500 grams or more of cocaine. In his § 2241 motion, Saenz-Jurado

challenges a detainer lodged against him by Colorado state officials. Saenz-

Jurado asserts that Colorado’s refusal to timely adjudicate his parole-revocation

petition violates his Sixth Amendment right to a speedy trial. In resolving the

§ 2241 petition, the federal district court first set out at length the numerous

procedural machinations surrounding Saenz-Jurado’s attempts to have the

Colorado state courts adjudicate his parole revocation proceedings. The district

court ultimately concluded Saenz-Jurado’s petition was time barred pursuant to

§ 2244(d). This court need not determine whether the district court’s procedural

ruling is correct because Saenz-Jurado has not stated a debatable constitutional

claim. Slack, 529 U.S. at 485.




                                          -3-
      By its very terms, the Sixth Amendment applies only to criminal

prosecutions. U.S. Const. amend. VI (“In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial . . . .”). The Supreme Court has

made clear that parole revocation “is not a stage of a criminal prosecution.”

Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973). Accordingly, courts have

uniformly concluded the Sixth Amendment right to a speedy trial does not apply

to parole revocation hearings. See, e.g., Bennett v. Bogan, 66 F.3d 812, 818 (6th

Cir. 1995); United States v. Williams, 558 F.2d 224, 226 (5th Cir. 1977); Moultrie

v. Georgia, 464 F.2d 551, 552 (11th Cir. 1972); Kartman v. Parratt, 535 F.2d

450, 455 (8th Cir. 1976). Nor can Saenz-Jurado make out a due process claim

under the facts of this case. Moody v. Daggett, 429 U.S. 78, 86-91 (1976)

(holding under circumstances remarkably similar to those in instant case that

parole commission was under no constitutional duty to adjudicate a parole-

revocation warrant until that warrant was executed and the parolee taken into

custody as a parole violator).

      Because Saenz-Jurado has not stated a debatable constitutional claim in his

habeas petition, he is not entitled to a COA. Slack, 529 U.S. at 485.




                                          -4-
Accordingly, this court DENIES Saenz-Jurado’s request for a COA and

DISMISSES this appeal.

                                           ENTERED FOR THE COURT


                                           Michael R. Murphy
                                           Circuit Judge




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