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

                                                                       September 5, 2006
                    UNITED STATES CO URT O F APPEALS
                                                                      Elisabeth A. Shumaker
                                  TENTH CIRCUIT                           Clerk of Court



 R ON A LD M O RELLO ,

       Petitioner - A ppellant,
                                                         No. 06-4044
 v.
                                                 (D.C. No. 2:03-CV-681-DAK)
                                                           (D. Utah)
 UTA H BO ARD OF PARD ONS,

       Respondent - Appellee.



                      OR DER DENYING A CERTIFICATE
                            OF APPEALABILITY


Before KELLY, M cKA Y, and LUCERO, Circuit Judges.


      Ronald M orello, a state prisoner proceeding pro se, requests a certificate of

appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2241

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

we D EN Y a COA and DISM ISS.

      This is M orello’s fourth habeas petition. His first two were dismissed

without prejudice for failing to exhaust state remedies. The district court denied

his third petition as time-barred and we affirmed. M orello v. Utah, 10 F. App’x

788 (10th Cir. 2001) (unpublished opinion). M orello presented two arguments to

the district court in his latest petition: (1) that his due process rights were

violated by a 1995 parole decision of the Utah Board of Pardons; and (2) that his
1983 guilty plea was involuntary because it was based on the false assurances of

his attorney. The district court dismissed the parole issue because it did not

implicate a federal right, and transferred the plea issue to this court as successive.

W e denied authorization to file a successive petition regarding M orello’s guilty

plea and dismissed. M orello now seeks a C OA to appeal the district court’s

dismissal of the parole claim. 1

      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 M orello 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 encouragement to

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

omitted).

      To present a cognizable due process claim, M orello must show that he

possessed a liberty interest in parole. See M alek v. Haun, 26 F.3d 1013, 1015



      1
        M orello’s petition was filed after April 24, 1996, the effective date of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”); as a result, AEDPA's
provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1
(10th Cir. 1999) (citing Lindh v. M urphy, 521 U.S. 320 (1997)). AED PA
conditions a petitioner's right to appeal a denial of habeas relief under § 2241
upon a grant of a CO A. 28 U.S.C. § 2253(c)(1)(A); M ontez v. M cKinna, 208
F.3d 862, 867 (10th Cir. 2000) (holding that § 2253(c)(1)(A ) requires a state
prisoner to obtain a COA regardless of whether he is seeking relief under § 2254
or under § 2241). M orello may not appeal the district court’s decision absent a
grant of a COA by this court.

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(10th Cir. 1994). A liberty interest in parole arises only when a person has “a

legitimate claim of entitlement to it.” Id. W e held in M alek that the Utah parole

statute does not create a liberty interest protected by the Due Process Clause of

the Fourteenth Amendment. Id. at 1015-16. Accordingly, M orello has not

presented a ground for habeas corpus relief.

      M orello seeks leave to proceed in forma pauperis on this appeal. Because

he was granted permission to proceed in forma pauperis by the district court, his

status continues on appeal and his request is moot.

      For the reasons stated above, M orello’s 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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