                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                        April 6, 2010
                        UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                         Clerk of Court
                                     TENTH CIRCUIT


 CHESTER L. BIRD,

                 Petitioner - Appellant,

           v.                                                 No. 09-8087
                                                   (D. Ct. No. 2:08-CV-00200-WFD)
 BARBARA LeMAITRE, Chairman,                                   (D. Wyo.)
 Wyoming Department of Corrections
 Parole Board,


                 Respondent - Appellee.


                ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.


       After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance in 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.

       Chester L. Bird, a Wyoming state prisoner proceeding pro se, seeks a certificate of

appealability (“COA”) to appeal from the dismissal of his habeas petition, which the



       *
        This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
district court construed as arising under 28 U.S.C. § 2241. We take jurisdiction under 28

U.S.C. § 1291, DENY Mr. Bird’s request for a COA, and DISMISS this appeal.

                                    I. BACKGROUND

       In 1994, Mr. Bird pleaded guilty in Wyoming state court to kidnaping and sexual

assault and was sentenced to two concurrent life sentences. On September 11, 2008, he

filed the instant habeas petition under 28 U.S.C. § 2254. In the petition, Mr. Bird alleges

that subsequent to his conviction and sentencing, the Wyoming Parole Board (“WPB”)

made several substantive changes to its practices and policies regarding commutation

recommendations. Specifically, Mr. Bird states that when he was convicted, the

applicable rules provided that the WPB may recommend commutation of a sentence to

the governor when, in the WPB’s discretion, an inmate’s behavior has been so

meritorious as to warrant special recognition. Since that time, however, the WPB has

limited its discretion to recommend commutation applications to the governor. Mr. Bird

argues that these rule changes render his guilty pleas unknowing and involuntary in

violation of the Due Process Clause of the Fourteenth Amendment, and that they

retroactively increase the punishment for his crimes in violation of the Ex Post Facto

Clause. After construing Mr. Bird’s petition as one arising under § 2241 rather than

§ 2254, the district court denied the petition on the merits.

                                     II. DISCUSSION

       Mr. Bird first contends that his petition was properly filed as one under § 2254 and

that the district court erred in construing it under § 2241. A state prisoner may seek a writ

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of habeas corpus under § 2254 when he challenges the legality of the sentence he is

currently serving. See Davis v. Roberts, 425 F.3d 830, 834 (10th Cir. 2005). A challenge

to the execution of a particular sentence, however, is properly brought under § 2241. See

id. at 833. We agree with the district court that Mr. Bird’s petition concerns the execution

of his sentence and thus find no error in the court’s construction of the petition as arising

under § 2241. Moreover, we note that had the court construed the petition under § 2254

as Mr. Bird urges, the petition may well have been barred as an unauthorized second or

successive petition because Mr. Bird has previously filed a § 2254 petition, see Bird v.

Everett, 215 F.3d 1336 (10th Cir. 2000) (unpublished table decision), and because he has

not stated why he should be permitted to file another § 2254 petition. See In re Lindsey,

582 F.3d 1173, 1174 (10th Cir. 2009) (“Congress has placed limits on second or

successive 28 U.S.C. § 2254 applications and § 2255 motions, allowing them to proceed

only in specified circumstances and only with a circuit court’s prior authorization.”

(citing 28 U.S.C. § 2244(b))).

       In any event, a state petitioner may not appeal from a final order denying a § 2241

or a § 2254 petition without first obtaining a COA. 28 U.S.C. § 2253(c)(1)(A); Montez v.

McKinna, 208 F.3d 862, 867 (10th Cir. 2000). When, as is the case here, the district court

denies the petition on the merits, we will issue a COA “only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).1 Mr.

       1
       The district court also suggested that it could deny the petition on procedural
grounds because the named respondent, Barbara LeMaitre, is the chairperson of the WPB
and not the person who has custody of Mr. Bird. See Rumsfeld v. Padilla, 542 U.S. 426,

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Bird has not made this requisite showing.

       Mr. Bird’s claims premised on the Due Process Clause fail because he cannot

show the deprivation of a constitutionally protected liberty or property interest. See

Doyle v. Okla. Bar Ass’n, 998 F.2d 1559, 1570 (10th Cir. 1993) (“The threshold

requirement [for a due process claim] is a sufficient allegation by the plaintiff that the

plaintiff possesses a liberty or property interest.”). To have a liberty or property interest

that is cognizable under the Due Process Clause, Mr. Bird “must have more than a

unilateral expectation of it.” Id. Indeed, “he must have a legitimate claim of entitlement

to it.” Id. Furthermore, “[t]he mere expectation of receiving a state afforded process does

not itself create an independent liberty interest protected by the Due Process Clause.” Id.

Rather, the state must also mandate the outcome to be reached upon a finding that

relevant criteria are met. Id.; see also Boutwell v. Keating, 399 F.3d 1203, 1213 (10th

Cir. 2005) (citing Jago v. Van Curen, 454 U.S. 14 (1981) for the proposition that “no

liberty interest in the expectancy of parole is created under a statute in which parole is



434–35 (2004). Because the district court proceeded to consider Mr. Bird’s claims on the
merits, however, we will do so as well.
        In addition, we note that a petitioner seeking relief under § 2241 is generally
required to exhaust state court remedies. See Wilson v. Jones, 430 F.3d 1113, 1118 (10th
Cir. 2005). Citing Wyo. Stat. Ann. § 7-13-402(f), which generally prohibits judicial
review of the WPB’s policies and decisions, the district court concluded that exhaustion
would likely prove futile in this case and thus proceeded to the merits. See Beavers v.
Saffle, 216 F.3d 918, 924 n.3 (10th Cir. 2000). We need not address this question and we
also turn to the substance of Mr. Bird’s contentions. See Clayton v. Gibson, 199 F.3d
1162, 1170 (10th Cir. 1999) (“The exhaustion requirement [for § 2254 and § 2241
petitions] is not jurisdictional”).


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discretionary”).

       Mr. Bird contends that he has a constitutionally protected interest in being

considered for a commutation. We, however, agree with the district court that:

       [t]he Wyoming legislature has granted inmates only a right to be considered
       for parole. See Dorman v. State, 665 P.2d 511, 513 (Wyo. 1983). The
       legislature has created no right to commutation of a sentence. Therefore,
       because commutation is a matter of grace and not a right, Mr. Bird has no
       actionable claim.

Accordingly, reasonable jurists could not debate the district court’s resolution of Mr.

Bird’s due process claims.

       Regarding Mr. Bird’s Ex Post Facto claim, we agree entirely with the district

court’s analysis and adopt it in full. In short, because Wyoming vests commutation

decisions entirely within the discretion of the governor, any changes to the commutation

recommendation process cannot pose a significant risk that Mr. Bird’s incarceration will

be lengthened. See Cal. Dep’t of Corrs. v. Morales, 514 U.S. 499, 509 (1995)

(controlling inquiry under the Ex Post Facto analysis is “whether [the change in the law]

produces a sufficient risk of increasing the measure of punishment attached to the covered

crimes”; a “speculative and attenuated possibility” of increased punishment is insufficient

to establish a violation). Therefore, Mr. Bird’s Ex Post Facto claim is also without merit.

                                   III. CONCLUSION

       For the foregoing reasons, Mr. Bird’s request for a COA is DENIED and his




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appeal is DISMISSED. We GRANT his request to proceed in forma pauperis on appeal.



                                     ENTERED FOR THE COURT,



                                     Deanell Reece Tacha
                                     Circuit Judge




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