                                                                            FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                      UNITED STATES COURT OF APPEALS                     May 20, 2008
                                                                   Elisabeth A. Shumaker
                                   TENTH CIRCUIT                       Clerk of Court



 LOUIS JOSEPH MALEK,

                 Petitioner - Appellant,                   No. 07-4220
          v.                                                 (D. Utah)
 CLINT FRIEL, Warden; CHERYL                      (D.C. No. 2:04-CV-01062-TS)
 HANSEN, Parole Board Member; KEITH
 HAMILTON, Board Member; CURTIS
 GARNER, Board Member; DONALD E.
 BLANCHARD, Board Member; MIKE
 SIBBETT, Board Member; UTAH
 ATTORNEY GENERAL,

                 Respondents - Appellees.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.



      Petitioner, Louis J. Malek, seeks a certificate of appealability (“COA”)

from this court so he can appeal the district court’s denial of the habeas petition

he filed pursuant to 28 U.S.C. §§ 2254 and 2241. See 28 U.S.C. § 2253(c)(1)(A)

(providing a state prisoner must obtain a COA to appeal the denial of habeas

relief); Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000). In 1977, Malek



      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
was convicted of manslaughter and sentenced to one to fifteen years’

imprisonment. Malek v. Reding, 195 F. App’x 714, 715 (10th Cir. 2006). He was

paroled in 1982. In 1983, while on parole, Malek was convicted of aggravated

robbery and attempted murder. Malek v. Friel, No. 20031017, 2004 WL 1534690,

at *1 (Utah Ct. App. July 9, 2004) (unpublished disposition). He was sentenced

to two concurrent terms of five years to life to run consecutive to his 1977

manslaughter sentence. 1 Id. He was also ordered to serve two, one-year gun

enhancement sentences. Malek’s sentence was amended in 1992 when the state

court signed a corrected sentence eliminating the multiple firearms enhancements.

Id. The remainder of his sentence was not affected. Malek was paroled in 2000

but arrested less than two years later and convicted of state misdemeanor charges.

Id. His parole was revoked. Id.

      Malek filed a petition pursuant to Rule 65B of the Utah Rules of Civil

Procedure, seeking state post-conviction relief. The motion was denied by the

state trial court in a comprehensive written order and the Utah Court of Appeals

affirmed the denial. Id. at *4. The Utah Supreme Court denied Malek’s petition

for writ of certiorari on November 5, 2004.

      Malek filed the instant federal habeas petition on December 2, 2004, raising

claims under both 28 U.S.C. § 2254 and 28 U.S.C. § 2241. He alleged he was

denied: (1) his right to due process because the 1983 judgment of commitment

      1
          His parole was revoked in 1985 based on the 1983 convictions.

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was never signed by the state court and the amended sentence was signed by the

wrong state court, and (2) his right to appeal and his right to effective assistance

of counsel because he was not informed of his right to appeal from his original

sentencing in 1983 or his resentencing in 1992. He also asserted: (1) contrary to

a state court order, incorrect information in his parole file has not been deleted

and is still being used by the parole board; (2) a later version of a state statute is

being used to extend his term of incarceration beyond thirty years, in violation of

the Ex Post Facto Clause; and (3) he did not consent to serve the sentence for his

misdemeanor convictions at the state prison as opposed to the county jail, in

violation of his due process rights. Respondent sought to have Malek’s petition

dismissed, arguing his claims were either unexhausted or involved only questions

of state law and, thus, cannot be brought in a federal habeas proceeding.

      The district court dismissed Malek’s § 2254 claims and his § 2241 claim

relating to serving his misdemeanor sentences in state prison as untimely. 28

U.S.C. § 2244(d). The court also dismissed Malek’s remaining claims,

concluding they involved only matters of state law not cognizable on federal

habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

      Malek then filed an application for COA, challenging the dismissal of three

of his claims: (1) that his original judgment of conviction in 1983 was not signed

by the state court judge, (2) that under a prior state statute, his consecutive

sentences cannot exceed thirty years, and (3) that Respondent has failed to

                                           -3-
comply with a prior state court order to remove incorrect information from his

parole file. To be entitled to a COA, Malek 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 “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.” Miller-El v. Cockrell, 537 U.S. 322, 336

(2003) (quotations omitted); see also Slack v. McDaniel, 529 U.S. 474, 484-85

(2000) (holding that when a district court dismisses a habeas 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). In evaluating whether Malek 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 at 338. Although Malek

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. (quotations omitted).

      This court has reviewed the appellate briefs, the magistrate judge’s order to

show cause, the district court’s order, and the entire record on appeal pursuant to

the framework set out by the Supreme Court in Miller-El and concludes that

                                         -4-
Malek is not entitled to a COA. Our review confirms the correctness of the

district court’s conclusion that Malek’s claim relating to the state court’s alleged

failure to sign his 1983 sentencing and commitment order was filed well outside

the one-year statute of limitations imposed by the Antiterrorism and Effective

Death Penalty Act of 1996. 2 See 28 U.S.C. § 2244(d); Gibson v. Klinger, 232

F.3d 799, 803 (10th Cir 2000) (holding the one-year limitations period began to

run on April 24, 1996, for those prisoners whose convictions became final before

the effective date of the AEDPA). The district court also correctly concluded that

Malek’s remaining claims present only issues of state law. Both claims were

addressed in his state post-conviction proceeding and decided on state law

grounds. Specifically, the state trial court concluded the Board of Pardons

“complied with the previous court order to remove inaccurate information from

[Malek’s] file” by making “the necessary changes to ensure [Malek’s] sentences

are accurately reflected on the systems.” The court also concluded that Malek’s

consecutive sentences subjected him to a sentence in excess of thirty years under

both the version of Utah Code Ann. § 76-3-401(6) in effect in 1983 and the

amended version in effect since 1990.

      2
       Despite Malek’s argument that there is no final judgment from which the
one-year limitations period can run because of the failure to sign the 1983
sentencing and commitment order, the state court has resolved that state-law issue
by ruling “even if the initial sentence was unsigned, the sentence was corrected
with the entry of the 1992 order correcting Malek’s sentence, therefore mooting
any initial error.” Malek v. Friel, No. 20031017, 2004 WL 1534690, at *2 (Utah
Ct. App. July 9, 2004) (unpublished disposition).

                                          -5-
      The district court’s resolution of Malek’s habeas petition is not reasonably

subject to debate and his claims are not adequate to deserve further proceedings.

Accordingly, Malek has not “made a substantial showing of the denial of a

constitutional right” and is not entitled to a COA. 28 U.S.C. § 2253(c)(2).

      This court denies Malek’s request for a COA, grants the motion to proceed

in forma pauperis, and dismisses this appeal.

                                              ENTERED FOR THE COURT




                                              Elisabeth A. Shumaker, Clerk




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