                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         NOV 16 2001
                         FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    BRUCE NILES MOORE,

             Petitioner-Appellant,

    v.                                                 No. 00-4185
                                                   (D.C. No. 99-CV-575)
    STATE OF UTAH; DEPARTMENT                            (D. Utah)
    OF CORRECTIONS; HENRY
    GALETKA, Warden; UTAH BOARD
    OF PARDONS; MICHAEL O.
    LEAVITT, Governor; THIRD
    DISTRICT COURT; WILLIAM A.
    THORNE, Honorable Judge;
    SUPREME COURT OF THE STATE
    OF UTAH; RICHARD C. HOWE,
    Honorable Chief Justice,

             Respondents-Appellees.


                          ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, SEYMOUR , Circuit Judge, and        BRORBY , Senior
Circuit Judge.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Petitioner Bruce Niles Moore, a prisoner of the State of Utah appearing

pro se, appeals from the denial of his petition for habeas corpus relief. He

claimed that he was unlawfully arrested while on parole because he never

willingly signed the parole agreement and its restrictions did not bind him. He

also alleged a violation of his right to Due Process, if he had signed the parole

agreement. In addition, petitioner asserted claims under the Civil Rights Act, the

Racketeer Influenced and Corrupt Organizations Act (RICO), and the Freedom of

Information Act (FOIA).

       We first address the timeliness of petitioner’s appeal. The district court

entered its order denying relief on July 20, 2000. However, the docket sheet does

not reflect that the clerk prepared a separate document setting forth the judgment

in accordance with Fed. R. Civ. P. 58, and entered the judgment on the docket

pursuant to Fed. R. Civ. P. 79(a). Thus, petitioner’s time to appeal has never

begun to run. See Schaefer v. Shalala , 509 U.S. 292, 302-03 (1993); Fed. R. App.

P. 4(a)(1)(A). We need not remand for entry of a judgment, however, as the

separate document rule is mechanically applied in favor of appellate rights.


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Bankers Trust Co. v. Mallis , 435 U.S. 381, 386 (1978) (per curiam). Petitioner

filed an application for a certificate of appealability in the district court which

included the required notice and may serve as the functional equivalent of a

notice of appeal.   See Smith v. Barry , 502 U.S. 244, 248-49 (1992). The

requirement of a judgment on a separate document is therefore deemed waived,

see Bankers Trust Co. , 435 U.S. at 387-88, and the appeal is deemed timely.

       We next address our standard of review. Petitioner brought his petition

under 28 U.S.C. § 2241, but the district court construed the petition as one

brought under § 2254. Petitioner is challenging the execution of his sentence,

however, not the validity of his conviction or sentence. We therefore review the

petition as one brought under § 2241.      See Montez v. McKinna , 208 F.3d 862,

864-65 (10th Cir. 2000) (discussing difference between §§ 2241 and 2254). We

review the district court’s denial of habeas relief de novo.      Sinclair v. Henman ,

986 F.2d 407, 408 (10th Cir. 1993).

       The district court did not address petitioner’s application for a certificate of

appealability in that court, and the application is presumed denied.      See

Emergency General Order of October 1, 1996. Petitioner must obtain a certificate

of appealability in this court before he may proceed on appeal.        Montez , 208 F.3d

at 867. To do so, he must make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). He “can make such a showing by


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demonstrating that the issues he seeks to raise on appeal are deserving of further

proceedings, subject to a different resolution on appeal, or reasonably debatable

among jurists of reason.”   Montez , 208 F.3d at 869 (citing   Barefoot v. Estelle ,

463 U.S. 880, 893 n.4 (1983)).

      The state trial court denied petitioner’s claim because his parole agreement

was not a commercial document, as petitioner argued, but a statement of

conditions for petitioner’s release before the expiration of his sentence. The state

court noted that petitioner could have elected to serve his sentence instead of

accepting parole. The federal district court denied petitioner’s claim of a

constitutional violation on the merits. The district court dismissed without

prejudice petitioner’s Civil Rights Act, RICO, and FOIA claims, holding that

these claims were not cognizable in habeas. Based upon our review of the record,

petitioner’s arguments challenging the parole agreement are frivolous. We find

no error, and deny petitioner’s application for a certificate of appealability.

      Petitioner’s “Memorandum in support of the Petitioner’s Claim” is

construed as a motion for permission to file a supplemental brief, and is granted.

Petitioner’s motion for leave to proceed on appeal in forma pauperis is denied.

Petitioner’s application for a certificate of appealability is denied and the appeal

is DISMISSED.

                                                      Entered for the Court


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      Wade Brorby
      Senior Circuit Judge




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