                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                September 16, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 THURMAN HARRISON, JR.,

          Petitioner-Appellant,

 v.

 WARDEN OF THE FREMONT
                                                        No. 09-1298
 CORRECTIONAL FACILITY, and
                                                 (D.C. No. 08-cv-2784-ZLW)
 EXECUTIVE DIRECTOR OF THE
                                                         (D. Colo.)
 COLORADO DEPARTMENT OF
 CORRECTIONS,

          Respondents-Appellees.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.


      Thurman Harrison, Jr., a Colorado state prisoner proceeding pro se, applies

for a certificate of appealability (COA) to contest the district court’s dismissal of

his petition for a writ of habeas corpus under 28 U.S.C. § 2241. Because Mr.

Harrison’s current petition relies upon legal arguments we have already rejected,

we deny his application.



      *
        This order is not binding precedent except under the doctrines of law of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.
       In 1996, Mr. Harrison pleaded guilty to theft and was sentenced by a

Colorado state court to three consecutive terms of six years of imprisonment,

followed by three years of mandatory parole. Seeking to challenge his plea, Mr.

Harrison has already appeared before this court at least four times. In each of his

first three appearances, we denied Mr. Harrison’s COA applications, holding, in

response to his argument that “the sentencing court failed to explain the nature of

mandatory parole,” that Mr. Harrison was indeed “properly advised” by the

district court. Harrison v. Green, 125 F. App’x 952, 953-55 (10th Cir. 2005)

(unpub.); cf. Harrison v. Ray, 117 F. App’x 621, 622 n.1 (10th Cir. 2003)

(unpub.).

       In Mr. Harrison’s most recent appearance before this court, filed under

§ 2254, he suggested that the State is currently imprisoning him beyond the terms

of his sentence. We held that this argument sounded in § 2241, rather than

§ 2254, because it challenged the execution of his sentence rather than its

validity; accordingly, we dismissed the petition so that Mr. Harrison could re-file

under the proper statutory authority. In re Harrison, No. 08-1359 (10th Cir. Oct.

29, 2008) (unpub.). At the same time, we “caution[ed]” Mr. Harrison that “he

may not base his proposed § 2241 claims on any theory or argument that his

present sentence, as imposed, is unlawful. . . . [A] claim challenging the validity

. . . of his sentence, as it was imposed, can only be brought under § 2254.” Id. at

3-4.

                                         -2-
      After Mr. Harrison brought his challenge, revised and denominated as one

sounding in § 2241, the district court dismissed it as untimely. The district court

held that Mr. Harrison’s § 2241 petition was barred by § 2244(d)(1)’s one-year

limitation period because his conviction became final on November 1, 1997, yet

he did not file his current application until December 23, 2008. See Harrison v.

Warden of the Fremont Corr. Facility, No. 08-cv-2784-BNB, 2009 WL 1765666

(D. Colo. June 22, 2009).

      Mr. Harrison seeks a COA to challenge the district court’s disposition. 28

U.S.C. § 2253(c)(1)(A); see also Montez v. McKinna, 208 F.3d 862, 866-67 (10th

Cir. 2000). Because the district court dismissed his petition on procedural

grounds, Mr. Harrison must show two things in order to obtain that COA: (1)

“that jurists of reason would find it debatable whether the petition states a valid

claim of the denial of a constitutional right,” and (2) “that jurists of reason would

find it debatable whether the district court was correct in its procedural ruling.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

      Mr. Harrison’s application fails on the first Slack test. Even bearing in

mind the solicitous construction due Mr. Harrison’s pro se pleadings, see Van

Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007), “jurists of reason”

could not debate that they fail to “state[] a valid claim of the denial of a

constitutional right,” see Slack, 529 U.S. at 484. Mr. Harrison’s claim that he is

being unlawfully confined turns out merely to revive his previous § 2254 petitions

                                          -3-
arguing that the sentencing court failed to clarify that three years of mandatory

parole would follow eighteen years of incarceration. As Mr. Harrison puts it:

      The trial court did not inform[] Mr. Harrison at anytime during his
      advis[e]ments and sentencing hearings that the period of mandatory
      parole is in addition to his sentence or that the period of mandatory
      parole is a distinct element of sentencing, separate from the term of
      incarceration or length of the sentence imposed by the court.

Appellant’s Opening Br. at 11. This, of course, is a challenge to the validity of

his sentence, not its execution. And it is, of course, a challenge we have

previously considered and rejected, having expressly and long ago found that Mr.

Harrison was properly advised by the sentencing court and that his sentence was

constitutionally imposed. See Green, 125 F. App’x at 954-55. Under the law of

the case doctrine, we are not free to reconsider that prior panel’s ruling. See

Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818, 823 (10th Cir. 2007).

The arrival of the date on which Mr. Harrison wrongly believes he should have

been released from prison does not change the legal character of his claim, and

Mr. Harrison raises no other distinct issues for appeal. We see no debatable

federal constitutional violation here. 1

      Because Mr. Harrison’s COA application fails on Slack’s first test, we have

no need to reach Slack’s second and assess the correctness of the district court’s

procedural ruling. Because Mr. Harrison has failed to demonstrate “the existence

      1
        Mr. Harrison also cites Colorado state law in his challenge of his
sentence, but “federal habeas corpus relief does not lie for errors of state law.”
Lewis v. Jeffers, 497 U.S. 764, 780 (1990).

                                           -4-
of a reasoned, nonfrivolous argument on the law and facts in support of the issues

raised on appeal,” McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir.

1997), his motion for leave to proceed in forma pauperis is denied, along with his

application for a COA, and his appeal is dismissed.



                                      ENTERED FOR THE COURT



                                      Neil M. Gorsuch
                                      Circuit Judge




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