                                                                                      FILED
                                                                        United States Court of Appeals
                                                                                Tenth Circuit

                                                                                  May 13, 2010
                         UNITED STATES COURT OF APPEALS
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
                                      TENTH CIRCUIT



 THOMAS JOHN BEYLIK,

           Petitioner-Appellant,
 v.                                                                No. 09-1528
 AL ESTEP, Warden,                                      (D.C. No. 07-CV-02710-WYD)
                                                                  (D. Colo.)
           Respondent-Appellee.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before TACHA, BRISCOE, and O’BRIEN, Circuit Judges.


       Thomas Beylik, a Colorado state prisoner proceeding pro se, seeks a certificate of

appealability (COA) in order to challenge the district court’s denial of his petition for writ

of habeas corpus seeking relief pursuant to 28 U.S.C. § 2241. Because Beylik has failed

to satisfy the standards for the issuance of a COA, we deny his request and dismiss the

matter.

                                                 I

       In April 2005, Beylik pled guilty in Colorado state court to “Criminal Attempt

Sexual Assault on a Child - Victim less than 15 - Position of Trust,” and was sentenced to



       *
         This order is not binding precedent, except under the doctrines of law of the case, res
judicata, and collateral estoppel.
“a prison term of three years to life, with the possibility of an indeterminate period of

parole of from ten years to life, with a requirement that he participate in an intensive

supervision parole program, register as a sex offender and have no contact with children

under 18.” ROA, Vol. 1 at 56. Upon beginning his term of imprisonment, Beylik was

placed by the Colorado Department of Corrections (CDC) in its Sex Offender Treatment

and Monitoring Program (SOTMP).

       In June 2007, Beylik filed with the CDC an offender grievance form alleging that

his wife had “recieved [sic] private case file information from another group members[’]

file from SOTMP,” thereby “violating said members[’] confidentiality contract and

[Beylik’s].”1 Id. at 68. The grievance form further alleged that “SOTMP [wa]s . . . in a

violation of breach of contract with . . . Beylik . . . .” Id. The CDC researched the matter,

interviewed Beylik, and ultimately sent him a letter on July 3, 2007, informing him that

(a) the grievance procedure could “not be used to seek review of classification, sex

offender designation, or sentence computation,” (b) his therapists had been made aware of

the issue and would address it, (c) he “only need[ed] to follow any previous directions

       1
          Beylik’s pleadings in the instant case provided more details regarding the alleged
incident. According to those pleadings, Beylik and other inmates in the SOTMP program
at the CDC’s Fremont Correctional Facility (FCF) “were coerced into submitting . . .
letter[s] . . . discribing [sic] details of their crime and intimate details partaining [sic] to
their relationship with outside family or friends (in the plaintiff(s) case his spouse), along
with a self addressed stamped envelope . . . .” ROA, Vol. 1 at 132 (emphasis in original).
“Shortly after surrendering this private information,” Beylik’s wife “recieved [sic] (in
[Beylik’s] self addressed stamped envelope) personal information from another non-
disclosed convicted sex offender.” Id. According to Beylik, the therapists running the
SOTMP program at FCF “failed to find [Beylik’s] letter” but nevertheless “claim[ed] it
never went out.” Id.

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and/or assignments from [his] group and continue to follow the Treatment Contract, to

carry on in [his] present opportunity in [his] treatment group,” and (d) “[t]he decision to

continue in treatment . . . w[ould] continue to be [his].” Id. at 66.

       Beylik, dissatisfied with the response to his administrative grievance, filed with the

Colorado State Board of Parole a letter that was construed as an application for parole.

Id. at 71, 133. In doing so, Beylik purportedly believed he could be released from

confinement and allowed “to obtain treatment from home . . . .” Id. at 133. On July 30,

2007, Beylik met with the Board’s Vice President, Curtis Devin. Id. at 104. At the

conclusion of the meeting, Devin denied Beylik’s application and “deferred Beylik’s next

parole hearing until August 2008.”2 Id. at 105. Devin’s “decision was based on

aggravating factors/inadequate time served, public risk, [the fact that] Beylik’s

assessment of being a sexually violent predator was currently in progress,” and the need

for “continued correctional treatment.” Id. Although Beylik attempted to

administratively appeal that determination, he was informed by the Board of Parole “that

parole application hearings [we]re not appealable.” Id. at 64.

       On December 28, 2007, Beylik filed a pro se petition for writ of habeas corpus, as

well as a completed application form for a writ of habeas corpus pursuant to 28 U.S.C. §

2254. On February 11, 2008, the magistrate judge assigned to the case issued an order


       2
        According to the record, the Board of Parole reviewed Beylik’s case in late July
2008, and concluded he needed continued correctional treatment. ROA, Vol. 1 at 174.
The Board of Parole next reviewed Beylik’s case on August 4, 2009, and deferred his
next parole hearing until February 2010. Id. at 274.

                                               3
notifying Beylik that his pleadings were being construed “as filed pursuant to 28 U.S.C. §

2241” because Beylik was “challenging the denial of his parole.” ROA, Vol. 1 at 41.

The order further directed Beylik “to amend his Application and to file his challenges to

the execution of his sentence on a § 2241 Court-approved application form.” Id.

       On February 27, 2008, Beylik, as directed by the magistrate judge, filed a

completed application form for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Id.

at 50. On April 4, 2008, Beylik filed a “Second Amendment” to his application. Id. at

89. Thereafter, Beylik proceeded to file a host of pleadings, the majority of which, as the

district court ultimately noted, were incomprehensible.

       On October 15, 2009, the district court issued an order denying Beylik’s request

for federal habeas relief and dismissing the case with prejudice. Id. at 277. In doing so,

the district court concluded that “the only claim that properly [wa]s before [it] [wa]s . . .

Beylik’s challenge of the denial of his parole request . . . .”3 Id. With respect to that

claim, the district court “conclude[d] that the Parole Board’s decision denying . . .

Beylik’s application for parole was not arbitrary, capricious, or an abuse of discretion . . .

.” Id. at 282. In reaching this conclusion, the district court noted that “[t]he United States

Constitution itself does not create a protected liberty interest in a prisoner’s release prior

       3
          Consistent with the magistrate judge’s initial ruling in the case, the district court
concluded that, to the extent Beylik was “assert[ing] non-habeas claims, specifically
conditions of confinement claims,” those “more properly [we]re presented to th[e] Court
in a separate 42 U.S.C. § 1983 action.” Id. at 279. Likewise, the district court concluded
that, to the extent Beylik was seeking to challenge “the validity of his conviction and
sentence,” such claims “more properly [we]re raised in an action filed pursuant to 28
U.S.C. § 2254.” Id.

                                               4
to the expiration of a valid sentence.” Id. at 283. Further, the district court noted that

Colorado state law did not entitle a prisoner to parole prior to completion of the

incarceration period ordered by the sentencing court. Id. Additionally, the district court

noted that “no Colorado law creates any limits on the procedures to be used by the Parole

Board when it considers [a] parole application,” and “[t]he decision to grant parole or

absolute release to an inmate incarcerated for an indeterminate sentence under

[Colorado’s] Sex Offender Lifetime Supervision Act is vested within the sound discretion

of the . . . Parole Board.” Id. (internal citations omitted). Thus, the district court

concluded, “the State of Colorado ha[d] not created a constitutionally protected liberty

interest in the granting of parole, and . . . Beylik [wa]s not entitled to the Wolff[ v.

McDonnell, 418 U.S. 539 (1974),] due process protections in [his] parole proceedings . . .

.” Id. at 284. Finally, the district court concluded that the reasons cited by the Board of

Parole for rejecting Beylik’s application for parole (i.e., the existence of aggravating

factors, inadequate time served at the time of the application, public risk, and the need for

continued correctional treatment) were sufficient to rebut any claim that the Board’s

denial of parole was arbitrary or otherwise constitutionally impermissible.

       Judgment in the case was entered on October 16, 2009. Beylik subsequently filed

a pleading entitled “TAKE JUDICIAL NOTICE: REQUEST,” id. at 288, which the

district court construed as a misdirected notice of appeal. Id. at 4. On December 2, 2009,

the district court issued an order denying Beylik a COA. Id. at 294. Beylik has since

renewed his request for COA with this court.

                                               5
                                             II

       State prisoners may appeal the denial of a § 2241 petition only if a COA is issued.

See 28 U.S.C. § 2253(c)(2); Montez v. McKinna, 208 F.3d 862, 869 (10th Cir. 2000). A

COA will issue in such a case only if the state prisoner makes “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order to make this

showing, the state prisoner must demonstrate 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.” Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003) (internal quotations omitted).

       Having carefully examined Beylik’s appellate pleadings and the record on appeal,

we conclude he has failed to establish his entitlement to a COA in this case. Beylik’s

amended and second amended applications for federal habeas relief focused on the

CDC’s denial of his administrative grievance (which, as noted, sought immediate release

from confinement) and the Board of Parole’s subsequent decision to deny him parole, and

thus were properly characterized by the district court as being brought pursuant to 28

U.S.C. § 2241. See Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000). With

respect to the CDC’s denial of his administrative grievance, Beylik clearly had no

legitimate expectation that the alleged disclosures of confidential information from the

SOTMP, though perhaps unfortunate, would entitle him to release from confinement.

Contrary to the allegations in Beylik’s numerous pleadings, he is not in confinement as a

result of any “contract” he may have signed with the CDC regarding its SOTMP program;

                                              6
rather, he is serving a sentence of imprisonment duly imposed by a Colorado state court.

Thus, these allegations do not state a legitimate claim for federal habeas relief (which is

perhaps why the district court chose not to address the allegations as an independent

claim), and Beylik is not entitled to a COA with respect to these allegations. Turning to

Beylik’s due process challenge to the Board of Parole’s decision to deny him parole and

defer him for a later parole hearing, reasonable jurists could not debate whether this claim

should have been resolved in a different manner by the district court. To possess an

interest protectable under the Due Process Clause, a person must “‘have a legitimate

claim of entitlement to it.’” Greenholtz v. Inmates of the Nebraska Penal and

Correctional Complex, 442 U.S. 1, 7 (1979) (quoting Board of Regents v. Roth, 408 U.S.

564, 577 (1972)). As the district court explained in detail in its order denying Beylik

federal habeas relief, the grant of parole is wholly discretionary under Colorado’s

statutory parole scheme and thus does not create a legitimate expectation of release on the

part of Colorado state prisoners. Id. at 10-11. In other words, the scheme does not create

a liberty interest entitled to due process protection under the United States Constitution.

Id. at 11 (“That the state holds out the possibility of parole provides no more than a mere

hope that the benefit will be obtained.”) (emphasis in original).




                                              7
       Beylik’s request for a COA is DENIED, all pending motions are DENIED, and the

matter is dismissed.

                                             Entered for the Court


                                             Mary Beck Briscoe
                                             Circuit Judge




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