                                                                              FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                      November 23, 2011
                                    TENTH CIRCUIT
                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court

 LYNN EUGENE SCOTT,

           Petitioner-Appellant,
                                                              No. 11-1447
 v.                                                 (D.C. No. 1:11-CV-00361-WJM)
                                                               (D. Colo.)
 WARDEN OF THE BUENA VISTA
 CORRECTIONAL FACILITY,

           Respondent-Appellee.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, Chief Judge, MURPHY and MATHESON, Circuit Judges.



       Lynn Eugene Scott, a Colorado state prisoner appearing pro se, seeks a certificate

of appealability (COA) in order to challenge the district court’s dismissal, for lack of

subject-matter jurisdiction, of his 28 U.S.C. § 2241 application for federal habeas relief.

Because Scott has failed to satisfy the standards for the issuance of a COA, we deny his

request and dismiss the matter.

                                              I

       In the spring of 2000, Scott was sentenced in Colorado state court to consecutive


       *
         This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel.
terms of imprisonment of ten years and six months. Scott was subsequently released on

April 11, 2007, to serve a five-year term of parole. Approximately three months later, on

July 9, 2007, Scott’s parole was revoked due to multiple violations of his parole

agreement.

        On February 19, 2008, while still incarcerated, Scott was convicted by prison

authorities of possession of an unauthorized legal document. Scott unsuccessfully

challenged this conviction in the Colorado state courts. The State Parole Board, on the

basis of this conviction, extended the period of Scott’s parole revocation to August 5,

2008.

        Scott was reparoled on August 5, 2008, but soon thereafter violated the terms of

his parole agreement. On November 20, 2008, Scott was returned to state custody to

serve the remainder of his revoked five-year parole term. Scott is currently scheduled for

release on May 3, 2012.

        On February 10, 2011, Scott initiated these federal proceedings by filing a pro se

application for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Scott’s application

asserted that his February 19, 2008 disciplinary conviction was constitutionally invalid

because (1) the evidence presented against him at the disciplinary hearing was insufficient

to satisfy the “preponderance of the evidence standard” applied by the Colorado

Department of Corrections in its internal disciplinary proceedings, and (2) in any event,

the hearing officer “should have” applied a “clear and convincing evidence standard”

because the disciplinary conviction resulted in the “los[s] [of Scott’s] re-parole date.”

                                              2
ROA, Vol. 1 at 12. Scott subsequently filed a motion to amend in which he alleged, in

pertinent part, that (1) the disciplinary hearing officer “failed to find some evidence to

support [his] verdit [sic],” id. at 115, and (2) he was “being held beyond his [original]

lawful sentence to [sic] incarceration,” id. at 116.

       Respondent moved to dismiss the matter as moot, asserting that “Scott’s current

incarceration is unrelated to the [disciplinary] conviction that is the subject of this habeas

action.” Id. at 124. According to respondent, “Scott’s current incarceration is solely

based on the parole violations (including new crimes) committed [by Scott] after his

release on August 5, 2008 . . . .” Id. at 126-27. Consequently, respondent argued, “[e]ven

if the Court were to find that Scott’s [disciplinary] conviction violated his due process

rights and ordered that it be expunged, such a finding would have no effect on Scott’s

current incarceration.” Id. at 127.

       On August 25, 2011, the district court issued an order dismissing the matter for

lack of subject-matter jurisdiction. In its order, the district court first agreed with

respondent that the claims asserted by Scott in his original application were moot: “The

[Application] challenges the execution of [Scott]’s sentence as it was affected by his

February 1998 prison disciplinary conviction—i.e., the postponement of his reparole from

May 12, 2008 to August 5, 2008,” and “does not assert any constitutional or federal

statutory claims concerning the execution of [his] sentence following his reparole in

August 2008 and his subsequent reincarceration in November 2008.” Id. at 172. The

district court in turn denied as futile Scott’s motion to amend his application to include a

                                               3
claim “that his current incarceration is illegal because he has already served the ten-and-

a-half year sentence [originally] imposed by the state court.” Id. at 173. According to the

district court, Scott failed to properly exhaust his state-court remedies with respect to that

claim.

         Scott moved for reconsideration on September 2, 2011. The district court denied

the motion on October 17, 2011, concluding that it “raise[d] the same arguments that

were rejected by the Court previously.” Id. at 186.

         Scott filed a notice of appeal on September 23, 2011. Scott has since filed an

application for a COA with this court, as well as an opening brief and a motion to proceed

on appeal without prepayment of costs or fees.

                                              II

         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)(1)(A). A

COA may be issued “only if the applicant has made a substantial showing of the denial of

a constitutional right.” 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

                                              4
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.

       Although we have liberally reviewed Scott’s pleadings, we conclude that he cannot

satisfy these standards. Turning first to Scott’s challenge to his February 2008

disciplinary conviction, we agree with the district court that any constitutional claim

arising from that conviction is moot because Scott is no longer in custody as a result of

that disciplinary conviction, and he has failed to establish any collateral consequences

flowing from it. See Spencer v. Kemna, 523 U.S. 1, 8, 14 (1998) (concluding that

petitioner’s challenge to parole revocation was moot because the period of reincarceration

had expired; concluding further that collateral consequences must be proved, not

presumed).

       As for Scott’s claim that he is now being required to serve more time than was

provided by his 1990 sentence, we agree with the district court that Scott has failed to

properly exhaust his state-court remedies with respect to this claim. To be sure, Scott

filed a state habeas action in August 2009 asserting this same claim. But when that action

was dismissed by the state district court, Scott chose not to appeal, as was his right under

Colorado law. See Colo. Rev. Stat. § 13–4–102(1)(e); see also Tuller v. Neal, 886 P.2d

279, 279 n.1 (Colo. 1994) (noting that the Colorado Supreme Court “exercises exclusive

jurisdiction over appeals from the district court in habeas corpus cases”). Instead, Scott

attempted to invoke the original jurisdiction of the Colorado Supreme Court by filing a

                                              5
motion for discretionary relief pursuant to Colorado Rule of Appellate Procedure

21(a)(1).1 That motion was denied, and Scott made no attempt thereafter to invoke the

Colorado Supreme Court’s appellate jurisdiction. Because a petition seeking the exercise

of the Colorado Supreme Court’s original jurisdiction is “not a substitute for appeal,” Bell

v. Simpson, 918 P.2d 1123, 1125 n.3 (Colo. 1996) (en banc), the Colorado Supreme

Court was never “fairly presented” with the constitutional claim asserted in Scott’s state

habeas action and dismissed by the state district court. See Castille v. Peoples, 489 U.S.

346, 351 (1989) (concluding that “[r]aising [a] claim in” a “procedural context in which

its merits will not be considered unless ‘there are special and important reasons therefor’”

does not “constitute ‘fair presentation’” for purposes of satisfying the state exhaustion

requirements). Consequently, Scott has not properly exhausted his available state-court

remedies. See also id.; Esquibel v. Williamson, 421 F. App’x 813, 815 (10th Cir. 2010)

(concluding that a petition for writs of prohibition and mandamus filed with the Colorado

Supreme Court pursuant to Colo. R. App. P. 21 was not the equivalent of a direct appeal

and thus did not satisfy the exhaustion requirement); Edmiston v. Colorado, 158 F. App’x

980, 981 (10th Cir. 2005) (same).



       1
         Colorado Rule of Appellate Procedure 21(a)(1) provides, in pertinent part, that
“[r]elief under th[e] rule is extraordinary in nature,” “is a matter wholly within the
discretion of the [Colorado] Supreme Court,” and “shall be granted only when no other
adequate remedy . . . is available.” Colorado Appellate Rule 21(a)(2) in turn provides
that “habeas corpus” petitions “are subject to this rule.” See also People v. Nichelson,
219 P.3d 1064, 1066 (Colo. 2009) (en banc) (“[R]elief under [Rule] 21 is generally
limited to extraordinary circumstances where there is no other adequate remedy.”).

                                              6
      The application for COA is DENIED and the matter is DISMISSED. The motion

to proceed on appeal without prepayment of costs or fees is DENIED.




                                              Entered for the Court



                                              Mary Beck Briscoe
                                              Chief Judge




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