                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                       August 30, 2007
                   UNITED STATES CO URT O F APPEALS
                                                                     Elisabeth A. Shumaker
                                TENTH CIRCUIT                            Clerk of Court



 TIM OTH Y R. CA LLIS,

       Petitioner-A ppellant,
 v.
                                                        No. 07-1048
                                                (D.C. No. 04-CV-00256-ZLW )
 JO E O RTIZ; B OB KU RTZ; JO HN
                                                          (D . Colo.)
 SU THERS, Attorney General of the
 State of Colorado,

       Respondents-Appellees.



                      OR DER DENY ING CERTIFICATE
                           OF APPEALABILITY


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      Timothy R. Callis, a state prisoner proceeding pro se, requests a certificate

of appealability (“COA”) to appeal the district court’s dismissal of his 28 U.S.C.

§ 2254 habeas petition. For substantially the same reasons set forth by the district

court, we D EN Y a COA and DISM ISS the appeal.

                                          I

      Callis is currently serving a life sentence for his conviction of first-degree

felony murder and lesser concurrent sentences for related convictions of robbery

and first-degree burglary. In July 2001, after the Colorado Parole Board (“the

Board”) denied his application for parole, Callis brought an action in Pueblo
County District Court seeking a writ of habeas corpus. He argued that the

Colorado Department of Corrections (“CDOC”) and the Board were improperly

interpreting and applying Colorado’s parole statute to his life sentence. The state

trial court denied his request for relief, concluding that Callis’ admission to the

court that parole w as discretionary rendered his argument for mandatory parole

moot. Callis appealed the trial court’s determination, and despite his admission,

the Colorado Court of Appeals reviewed his arguments on the merits. The

appellate court concluded that the Board had discretion under Colorado law

whether to grant or refuse parole and the Colorado Supreme Court subsequently

denied his petition for certiorari.

      Callis next brought a § 2254 habeas petition advancing three claims related

to CDOC’s and the Board’s interpretation and application of the parole statute to

his life sentence: (1) The statute is ambiguous and the state should therefore have

applied the rule of lenity when interpreting it; (2) The interpretation violates the

Ex Post Facto Clause of the U nited States Constitution because it imposes a

punishment more severe than the one assigned to him when convicted; and (3)

The interpretation violates the Due Process Clause of the federal Constitution

because fundamental fairness dictates that he not be treated more harshly than

intended at the time of his sentencing.

      Construing Callis’ § 2254 petition as a § 2241 petition, the district court

denied Callis’ application for habeas relief. As to his first claim, the court found

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that Callis’ rule of lenity argument was premised on an issue of state law not

cognizable in a habeas proceeding. As to the ex post facto claim, the court

determined that the Board’s decision on whether to grant parole w as purely

discretionary and thus did not violate the federal Constitution. As to the final

claim, the court held that Callis had no liberty interest implicating the protections

of the Due Process Clause. Callis now appeals from the district court’s decision

and seeks a COA from this court.

                                          II

      At the threshold, we note that although Callis originally filed his petition

under 28 U.S.C. § 2254, his petition is more properly construed as a petition

under 28 U.S.C. § 2241 because he challenges the fact or duration of the

execution of his sentence, rather than the validity of his underlying sentence or

conviction. See M ontez v. M cK inna, 208 F.3d 862, 865 (10th Cir. 2000);

M cIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997).

      Unlike a federal prisoner, a state prisoner proceeding under § 2241 must

obtain a COA to appeal a denial of habeas relief. M ontez, 208 F.3d at 867; 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). This requires Callis to show “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

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encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000)

(quotations omitted). Accordingly, Callis may not appeal the district court’s

decision absent a grant of a COA by this court.

         Under § 2241, a state prisoner is entitled to habeas relief if he can show

that “he is in custody in violation of the Constitution or laws or treaties of the

United States.” 28 U.S.C. § 2241(c)(3). W e review a district court’s denial of a

§ 2241 petition de novo. W alck v. Edmondson, 472 F.3d 1227, 1235 (10th Cir.

2007).

                                           III

         Callis renews on appeal each of the three claims he asserted in the district

court. He first argues that he is entitled to habeas relief because CDOC’s and the

Board’s interpretation of Colorado Revised Statute § 17-2-201(5)(a) violates the

rule of lenity. That statute provides:

         As to any person sentenced for conviction of a felony comm itted
         prior to July 1, 1979 . . . the board has the sole power to grant or
         refuse to grant parole and to fix the condition thereof and has full
         discretion to set the duration of the term of parole granted, but in no
         event shall the term of parole exceed the maximum sentence imposed
         upon the inmate by the court or five years, whichever is less . . . .

Colo. Rev. Stat. § 17-2-201(5)(a). Callis asserts that the statutory language

“whichever is less” is ambiguous as to whether his life sentence should be limited

to twenty years of imprisonment, the minimum time he is required to serve for his

felony murder conviction, see Colo. Rev. Stat. § 17-22.5-104(2)(b) (“No inmate



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imprisoned under a life sentence for a crime committed on or after July 1, 1977

. . . shall be paroled until such inmate has served at least twenty calendar years

. . . .”), follow ed by a five-year maximum parole period. 1 He claims that as a

result of this perceived ambiguity, § 17-2-201(5)(a) should be construed in favor

of lenity and that it should be read to grant him mandatory parole after his

completion of the statutorily-defined minimum twenty years of his life sentence.

      Callis’ rule of lenity argument is premised on attacking the state court’s

interpretation of a state statute; it does not involve any contention that he is in

custody in violation of the federal Constitution or laws of the United States.

Accordingly, Callis is not entitled to habeas relief on this first claim. Estelle v.

M cGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas

court to reexamine state-court determinations on state-law questions. In

conducting habeas review, a federal court is limited to deciding whether a

conviction violated the Constitution, laws, or treaties of the U nited States.”).

      Callis asserts that CDOC’s and the Board’s application of the parole

statute, as well as the interpretation given to it by the Colorado Court of A ppeals,

violates the Ex Post Facto Clause of the United States Constitution by increasing

his punishment. 2 To violate the Ex Post Facto Clause, a law must be retrospective


      1
        Callis’ crimes were committed on December 14, 1978. He was convicted
by a jury on October 29, 1979.
      2
          The record on appeal is unclear as to whether Callis exhausted his two
                                                                       (continued...)

                                         -5-
and must “alter[] the definition of criminal conduct or increas[e] the punishment

for [a] crime” after it has been committed. Lynce v. M athis, 519 U.S. 433, 441

(1997). A judicial enlargement of a statute, on the other hand, violates ex post

facto principles only if the court’s interpretation of the statute is unforeseeable. 3

Lustgarden, 966 F.2d at 554. The Colorado parole statute unequivocally

provides, and has provided since the time of Callis’ sentencing, for Board

discretion to grant or refuse parole to a person convicted of a felony comm itted

prior to July 1, 1979. Compare Colo. Rev. Stat. § 17-2-201(5)(a)(2004) w ith

M artin v. People, 27 P.3d 846, 849 (Colo. 2001) (quoting Colo. Rev. Stat. § 39-

18-1(4) (1971) and giving history of current § 17-2-201(5)(a)). The Colorado

Court of Appeals’ interpretation of the statute in Callis’ post-conviction



      2
       (...continued)
constitutional claims in the underlying state proceedings. Despite this ambiguity,
we need not decide whether to dismiss his application on exhaustion grounds,
because we ultimately decide that his claims are without merit. See M oore v.
Schoeman, 288 F.3d 1231, 1232 (10th Cir. 2002).
      3
        Callis erroneously relies on the Ex Post Facto Clause rather than the Due
Process Clause to assert his claim that an unforeseeable interpretation and
application of the parole statute has enlarged his sentence. “The Ex Post Facto
clause is a limitation upon the powers of the Legislature . . . and does not of its
ow n force apply to the Judicial Branch of government.” M arks v. United States,
430 U.S. 188, 191 (1977) (citations omitted). Because his rights arise out of a
judicial or administrative interpretation of the statute, they are appropriately
characterized as deriving from the D ue Process C lause. Lustgarden v. Gunter,
966 F.2d 552, 554 (10th Cir. 1992). Nevertheless, because we construe his
pleadings liberally, see H aines v. Kerner, 404 U.S. 519, 520-21 (1972), we
interpret his challenge as raising a due process issue and apply the ex post facto
principles applicable in the due process context. See Lustgarden, 966 F.2d at 554.

                                          -6-
proceeding was therefore foreseeable and does not violate ex post facto

principles.

      In his final claim, Callis asserts that the interpretation and application of

the parole statute violates principles of fundamental fairness implicit in the Due

Process Clause. To present a cognizable due process claim, Callis must show that

he possessed a recognized liberty interest in parole. See M alek v. Haun, 26 F.3d

1013, 1015 (10th Cir. 1994). A liberty interest in parole arises only when a

person has “a legitimate claim of entitlement to it.” Id. Because the Board may,

in its discretion, refuse to grant parole to a person that has served a twenty-year

minimum sentence, we conclude that Callis has no cognizable entitlement to a

liberty interest. See Olim v. W akinekona, 461 U.S. 238, 249 (1983) (“If the

decisionmaker is not required to base its decisions on objective and defined

criteria, but instead can deny the requested relief for any constitutionally

permissible reason or for no reason at all, the State has not created a

constitutionally protected liberty interest.” (quotations and citations omitted)). It

follows that his due process claim is w ithout merit.




                                          IV

      Finally, because we conclude that Callis presents a “reasoned, nonfrivolous

argument on the law and facts in support of the issues raised on appeal,”



                                         -7-
M cIntosh, 115 F.3d at 812 (quotation omitted), we GRANT his motion to proceed

on appeal in forma pauperis.

      Callis’ request for a COA is DENIED, and his appeal is DISM ISSED.




                                    ENTERED FOR THE COURT




                                    Carlos F. Lucero
                                    Circuit Judge




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