                                                                       F I L E D
                                                            United States Court of Appeals
                 UNITED STATES COURT OF                 APPEALS Tenth Circuit
                                                                     February 1, 2007
                                   TENTH CIRCUIT
                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court


 C ARLTO N RA Y MA R TIN EZ-BEY,

          Petitioner-A ppellant,

 v.                                                     No. 06-1067
                                             (D.C. No. 05-cv-00907-M SK-M JW )
 JOSEPH G. ORTIZ, Executive                              (Colorado)
 Director of the Colorado Department
 of Corrections.

          Respondent-Appellee.




                                      ORDER *


Before M U R PHY , SE YM OU R, and M cCO NNELL, Circuit Judges.




      Carlton Ray M artinez-Bey, a Colorado state prisoner proceeding pro se,

seeks a certificate of appealability (COA) to challenge the district court’s denial

of his application for a writ of habeas corpus under 28 U.S.C. § 2241. 1 A state

prisoner must obtain a COA before he can appeal the district court’s denial of his



      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
      1
       The district court denied M r. M artinez-Bey’s application for a certificate
of appealability (COA) and his motion to proceed informa pauperis (ifp).
§ 2241 petition. See Davis v. Roberts, 425 F.3d 830, 833 (10th Cir. 2005). For

the following reasons, we deny his application for a COA and motion to proceed

inform a pauperis (ifp).

      M r. M artinez-Bey was convicted in two separate proceedings in 1984 of

numerous crimes, including kidnaping, sexual assault and robbery, and was

sentenced to multiple concurrent and consecutive sentences. In 1990, he received

an additional consecutive sentence of 30 months after his conviction for attempt

to possess contraband. Under Colorado law , M r. M artinez-Bey is considered to

be serving one composite sentence of 46 years and 6 months. In December 2001,

he w as evaluated for parole for the first time, but it was ultimately denied. He

was informed that, pursuant to state law, he would not be reconsidered for parole

for another three years.

      M r. M artinez-Bey filed a motion under Colorado Rule of Civil Procedure

60(b), challenging the Colorado Department of Correction’s (CDOC) computation

of his sentence and the parole board’s refusal to reconsider him for parole for an

additional three years. The state district court denied the motion, and the

Colorado Supreme Court affirmed. M r. M artinez-Bey then filed this § 2241

petition, claiming his constitutional rights were violated when (1) the CDOC

misconstrued his sentence as a “single” sentence rather than a “continuous”

sentence; (2) the parole board deferred his next hearing for three years; and (3)

the CDOC continued to hold him beyond what he view s as the expiration of his

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sentence. The district court ordered the respondent to show cause and

subsequently denied M r. M artinez-Bey’s petition in a thorough and well-reasoned

opinion.

      Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a state

habeas petitioner “has no absolute entitlement to appeal a district court’s denial of

his petition. 28 U.S.C. § 2253.” M iller-El v. Cockrell, 537 U.S. 322, 335 (2003).

He first must obtain a COA in order for this court to have jurisdiction over the

appeal. See id. at 336. W e may issue a CO A only if a petitioner makes “a

substantial showing of the denial of a constitutional right.” Slack v. M cDaniel,

529 U.S. 473, 483 (2000). To do so, a petitioner must show “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.” Id. (internal quotation marks omitted).

      In determining w hether the petitioner has made the required showing, we

review the claims presented in his habeas petition and generally assess their

merit. See M iller-El, 537 U.S. at 336. In doing so, we “look to the District

Court’s application of A EDPA to petitioner’s constitutional claims and ask

whether that resolution was debatable amongst jurists of reason.” Id.

      After reviewing the parties’ briefs and relevant Colorado law, we conclude

M r. M artinez-Bey has failed to make the showing required for the issuance of a

COA for substantially the same reasons set forth in the district court’s decision.

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M r. M artinez-Bey has not shown that reasonable jurists could debate the district

court’s determination that he is not being unconstitutionally held beyond the end

of his sentence nor unconstitutionally denied consideration of parole before the

end of three years. M oreover, because M r. M artinez-Bey has failed to

demonstrate the existence of “a reasoned, nonfrivolous argument on the law and

the facts in support of the issues raised on appeal,” M cIntosh v. U.S. Parole

Comm'n, 115 F.3d 809, 812-13 (10th Cir. 1997), we deny his request to proceed

ifp.

       For the foregoing reasons, we DENY M r. M artinez-Bey’s ifp motion and

his application for a COA, and we DISM ISS this appeal.


                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Circuit Judge




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