                                                                                     FILED
                                                                         United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                             Tenth Circuit

                             FOR THE TENTH CIRCUIT                               April 10, 2018
                         _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
GERALD DANIELS,

      Petitioner - Appellant,

v.                                                             No. 18-5006
                                                  (D.C. No. 4:17-CV-00174-TCK-FHM)
JANET DOWLING, Warden,                                         (N.D. Okla.)

      Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before BRISCOE, HOLMES, and MATHESON, Circuit Judges.
                  _________________________________

       Gerald Daniels, an Oklahoma state prisoner proceeding pro se,1 seeks a certificate

of appealability (“COA”) to appeal the district court’s denial of his application for federal

habeas relief under 28 U.S.C. § 2241. 28 U.S.C. § 2253(c)(1)(A); see Montez v.

McKinna, 208 F.3d 862, 867 (10th Cir. 2000) (holding “a state prisoner must obtain a

COA to appeal the denial of a habeas petition” that “was filed pursuant to . . . § 2241”).

Exercising jurisdiction under 28 U.S.C. § 1291, we deny a COA. We also deny Mr.

Daniels’s request to proceed in forma pauperis (“ifp”).


       *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       1
         Because Mr. Daniels is pro se, we liberally construe his filings but do not act
as his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
                                    I. BACKGROUND

       Mr. Daniels is serving a life sentence for his 1990 first degree murder conviction.

In 1994, the Oklahoma Court of Criminal Appeals (“OCCA”) affirmed his conviction

and sentence on direct appeal. In 2016, he filed his third state application for post-

conviction relief, asking the court to declare that the term of his life sentence is 18-45

years or to modify his sentence to time served. The state court denied relief, and the

OCCA affirmed.

       In his amended § 2241 application, Mr. Daniels asserted two claims. First, he

alleged that in 1997 the state legislature defined a life sentence to be 18-60 years and

that he had, with good time credits, served his time. Second, he alleged an equal

protection violation, contending that he and a white prisoner, Loyd Kennedy, filed

identical state post-conviction relief applications and that Mr. Kennedy received

relief and Mr. Daniels, who is black, did not. The federal district court denied both

claims.

       As to the first claim, the court said the “claim should be denied” “regardless of

whether Petitioner failed,” as the State had argued, “to exhaust administrative

remedies.” ROA, Vol. 1 at 60 (citing 28 U.S.C. § 2254(b)(2) (stating an unexhausted

habeas claim may be denied on the merits)). The court denied the claim because it

“alleges an error of state law rather than a cognizable federal habeas claim.” Id. at

61. It said “[t]he crux of Petitioner’s claim is that Oklahoma law requires that his life

sentence be converted to a term-of-years sentence, and that in denying his request for



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post-conviction relief, the state courts either misinterpreted or misapplied Oklahoma

law.” Id. at 60-61.

       As to the second claim, the district court found it was not exhausted but chose to

address and deny it under 28 U.S.C. § 2254(b)(2). The court said the state court order in

Mr. Kennedy’s case did not address the merits of the post-conviction application that

were also alleged in Mr. Daniels’s claim and therefore the order could not support Mr.

Daniels’s equal protection claim.

       Finally, the district court denied a COA.

                                     II. DISCUSSION

       To obtain a COA, Mr. Daniels must make “a substantial showing of the denial

of a constitutional right,” 28 U.S.C. § 2253(c)(2), and “that reasonable jurists could

debate whether . . . 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).

                                  A. Term of Years Claim

       Federal habeas relief is not available to correct errors of state law. “[I]t is not the

province of a federal habeas court to reexamine state-court determinations on state-law

questions.’’ Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). In his amended § 2241

application, Mr. Daniels did not assert a violation of federal law regarding his sentence.

The OCCA explained that the Oklahoma law in question assigned a term of years to a life

sentence only for the purpose of calculating parole eligibility, not to convert a life

sentence to a “fixed term of years that can be discharged.” ROA, Vol. 1 at 30. We see

                                               3
no basis to question the district court’s denial of Mr. Daniels’s claim for failing to assert a

federal law violation.

       Unlike his § 2241 application, which makes no mention of a federal law violation,

Mr. Daniels’s brief on appeal argues that the Oklahoma sentencing scheme “gave him a

due process right, a liberty interest, to have his earned credits deducted from his life

sentence when a court or legislature defined life as a number of years.” Aplt. Br. at

Additional Page 4(b). He also contends “the OCCA’s interpretation of State law should

be re-examined, as it frustrate[s] due process.” Id. The references to due process in Mr.

Daniels’s appellate brief do not excuse his failure to allege a due process or other federal

law violation in his § 2241 application. His forfeiture of that argument in district court

and failure to argue plain error in this court constitutes waiver. See Richison v. Ernest

Grp., Inc., 634 F.3d 1123, 1128–31 (10th Cir. 2011).2

       Because Mr. Daniels’s claim rests on state law and any due process arguments he

makes now have been waived, we conclude that reasonable jurists could not debate the

district court’s denial of his challenge to the term of his sentence. We therefore deny a

COA on this issue.



       2
          The OCCA, in affirming the denial of his petition for post-conviction review,
stated that Mr. Daniels “has not demonstrated how law or regulations assigning a term of
years to a life sentence for purposes of calculating parole eligibility have somehow
caused his particular life sentence to become illegitimate or a violation of due process.”
ROA, Vol. 1 at 30. It is not clear whether the OCCA was responding to a due process
argument or whether it sua sponte said that no due process violation had been shown. It
is clear that Mr. Daniels did not allege a due process claim in his § 2241 application.


                                              4
                                  B. Equal Protection Claim

       The district court denied the equal protection claim because the state court order

granting Mr. Kennedy’s sentencing relief was not based on the claim that Mr. Daniels

asserted in his third state post-conviction proceedings. The order in Mr. Kennedy’s case

stated that “[d]ue to health, age and number of years served by Defendant [Kennedy], the

Court grants [the Motion] . . . and hereby sentences Defendant to time already served,”

ROA, Vol. 1 at 63. Mr. Daniels has not shown that the district court’s reading of this

order or its conclusion that the order fails to support his equal protection claim is

incorrect.

       Moreover, although Mr. Daniels may have submitted the same post-conviction

relief application in state court that Mr. Kennedy submitted, Mr. Daniels does not show

how he and Mr. Kennedy were similarly situated—e.g., similar type of conviction, time

served, age, health, prison behavior history, and so on—an essential element of an equal

protection claim. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)

(stating that under the Equal Protection Clause, “all persons similarly situated should be

treated alike”); Barney v. Pulsipher, 143 F.3d 1299, 1312 (10th Cir. 1998) (stating a

“viable equal protection claim” requires plaintiffs to show “they were treated differently

from others who were similarly situated”).

       The district court correctly determined that Mr. Daniels had failed to establish an

equal protection claim. Because reasonable jurists could not debate this determination,

we deny a COA on this issue.



                                              5
                               III. CONCLUSION

       We deny Mr. Daniels’s requests for a COA and to proceed ipf, and we dismiss

this matter.




                                         Entered for the Court


                                         Scott M. Matheson, Jr.
                                         Circuit Judge




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