                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           MAR 2 2001
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    MIKEL TRUMBLY,

                  Petitioner-Appellant,

    v.                                                   No. 00-3083
                                                  (D.C. No. CV-96-3541-RDR)
    KANSAS PAROLE BOARD;                                    (D. Kan.)
    ATTORNEY GENERAL OF
    KANSAS,

                  Respondents-Appellees.


                              ORDER AND JUDGMENT          *




Before BRISCOE , ANDERSON , and MURPHY , Circuit Judges.




         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.




*
      This order and judgment is not binding precedent, except under the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.
       Petitioner seeks a certificate of appealability (COA) in order to appeal the

denial of his habeas corpus action brought pursuant to 28 U.S.C. § 2254. We note

at the outset that because this action did not challenge the validity of his

conviction or sentence, but rather its execution (specifically the allegedly

unconstitutional denial of parole), the matter should have been characterized as

one brought pursuant to 28 U.S.C. § 2241.             See Montez v. McKinna , 208 F.3d

862, 865 (10th Cir. 2000). Petitioner needs a COA in either case.           See id. at 869.

Only if he has made the substantial showing that he has been denied a

constitutional right is he entitled to a COA.         See 28 U.S.C. § 2253(c)(2). This

showing can be made if petitioner demonstrates that the issues are debatable

among jurists, that a court could resolve the issues differently, or that the

questions presented deserve further proceedings.            See Slack v. McDaniel , 120

S. Ct. 1595, 1603-04 (2000). We have jurisdiction under 28 U.S.C. § 1291, and

we review the district court’s legal conclusions de novo.          See Patterson v.

Knowles , 162 F.3d 574, 575 (10th Cir. 1998).

       Petitioner is serving two sentences of life imprisonment for first degree

murder, for which he has been incarcerated since 1979. He was first considered

for parole in 1994, at which point he was passed to 1997. He appealed that

decision to the Kansas Parole Board, after which he pursued habeas corpus relief

in the state courts before commencing this action.


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       The issues he raises on appeal are the same as those presented to the

district court. He claims that based on the Kansas statutes in effect at the time of

his incarceration, he has a protected liberty interest in parole based on his

completion of the Inmate Program Agreement; that he also has a protected liberty

interest in parole because the Kansas statutes in effect at the time of the offense

contained mandatory language and limited the discretion of the parole board; the

failure of the parole board to consider him for parole under the provisions in

effect at the time of his offense violated ex post facto principles; and the parole

board failed to provide both sufficient reasons for denying him parole and an

impartial forum.

       There is no constitutional right to conditional release prior to the expiration

of a valid sentence.   See Greenholtz v. Inmates of Neb. Penal & Corr. Complex        ,

442 U.S. 1, 7 (1979). Nonetheless, a state may create a liberty interest by using

mandatory language in a statute which restricts the parole authority’s discretion or

creates a presumption of release.   See id. at 11-12.

       The inmate agreement petitioner signed states that the inmate understands

that his parole release is “ in part , contingent upon [his] satisfactory completion of

[certain] programs.” R. doc. 2, ex. A. (Emphasis added.) Nothing in the

agreement mandates an inmate’s release upon the successful completion of

programs. Rather, the agreement merely extends the possibility of parole.       See


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Greenholtz , 442 U.S. at 11. Moreover, the clear language of the agreement does

not constitute a promise of parole upon completion of the program agreement.

Payne v. Kan. Parole Bd. , 887 P.2d 147, 151 (Kan. Ct. App. 1994). Likewise, the

statute establishing the program agreement program, Kan. Stat. Ann. § 75-5210a,

does not confer a liberty interest in parole.

       Petitioner also claims that he has a liberty interest in parole based on Kan.

Stat. Ann. § 22-3717 (1978), which directed the Kansas Adult Authority

(predecessor of the present Kansas Parole Board) to consider all pertinent

information regarding the inmate and his offense and provided that the authority

had the power to release inmates who were eligible when there was a reasonable

probability that such inmates would not be a detriment to the community, but with

the caveat that parole shall only be ordered in the best interest of the inmate.

Contrary to petitioner’s arguments, this language is in no way similar to the

Montana statute determined to have created a liberty interest which provided that

subject to certain restrictions, the parole board   shall release or parole confined

persons when there is a reasonable probability the prisoner can be released

without detriment to the prisoner or the community.       See Bd. of Pardons v. Allen ,

482 U.S. 369, 376 (1987) (quotations omitted). The requirement that the paroling

authority shall consider all pertinent information does not equate to the “shall

release . . . when” requirement of    Allen or the “shall order . . . release unless”


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language of Greenholtz . See Greenholtz , 442 U.S. at 11. Rather, “the Kansas

statute merely empowers the Board to place one on parole when the Board, in the

exercise of its discretion, believes that the interests of the prisoner and the

community will be served by such action.”         Gilmore v. Kan. Parole Bd. , 756 P.2d

410, 414 (Kan. 1988). And, petitioner’s arguments notwithstanding, the Kansas

Supreme Court’s interpretation of its own statutes is binding on this court “absent

some conflict with federal law or overriding federal interest.”     Sac & Fox Nation

v. Pierce , 213 F.3d 566, 577 (10th Cir. 2000).

       Petitioner next claims that the Kansas Parole Board violated the

constitutional prohibition against ex post facto laws by failing to consider his

parole application under the laws in effect at the time of his offense and prior to

the 1988 amendment to Kan. Stat. Ann. § 22-3717(4) (1978), which in pertinent

part read:

       [a] parole shall be ordered only for the best interest of the inmate and
       not as an award of clemency. Parole shall not be considered a
       reduction of sentence or a pardon. An inmate shall be placed on
       parole only when the authority believes that the inmate is able and
       willing to fulfill the obligations of a law-abiding citizen. . . .

R. doc 2, ex. C.

       In petitioner’s case, the Kansas Court of Appeals held that because he was

not eligible for parole until 1994, his initial parole hearing was governed by the

1988 amendment, which allowed release on parole of those eligible when the


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board believes the inmate is able and willing to fulfill the obligations of a law

abiding citizen.   See R. doc 6, attach. B(2) (Kansas Court of Appeals

Memorandum Opinion of Sept. 1, 1995) at 3. The state court of appeals

determined that petitioner was in no way disadvantaged by the application of the

1988 version of the statute.    See id. at 3-4. Moreover, even assuming the

applicability of the 1978 version of the statute, there was no liberty interest in

parole created under that version either.     Bookless v. McKune , 926 P.2d 661,

663-64 (Kan. Ct. App. 1996).

       Parole is a matter of grace under Kansas law, and parole decisions lie

within the discretion of the paroling authority.    See Lamb v. Kan. Parole Bd. , 812

P.2d 761, 763 (Kan. Ct. App. 1991). Because petitioner cannot demonstrate how

he was disadvantaged by the application of the 1988 amendment, his ex post facto

argument must fail. As the Kansas Court of Appeals noted, “[t]here being no

liberty interest in parole, it cannot be argued that the denial of parole, whenever it

is done or under whatever statue involved, disadvantages a prisoner.” R. doc. 6,

attach. B(2) (Kansas Court of Appeals Memorandum Opinion) at 4.

       Finally, petitioner claims that the reasons given for denying his parole

application are constitutionally inadequate and that he was denied an impartial

hearing because the Board failed to grant his parole. The reasons given for the

parole denial were “Pass reasons: serious nature and circumstances of crime;


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violent nature of crime; objections regarding parole.” R. Doc. 6, attach. C. The

reasons given were sufficiently specific to comply with the requirements of Kan.

Stat. Ann. § 22-3717(k) (requiring that “if the board determines that other

pertinent information regarding the inmate warrants the inmate’s not being

released on parole, the board shall state in writing the reasons for not granting the

parole”). See also Payne , 887 P.2d at 152. Petitioner’s argument that he was

denied a fair and impartial hearing is without legal merit; he does not allege any

improper procedure used by the board, nor does he claim any arbitrary or

capricious action directed specifically at him.

      Petitioner has failed to make the required showing of the denial of a

constitutional right. Accordingly, the certificate of appealability is DENIED, and

the appeal is DISMISSED.



                                                     Entered for the Court



                                                     Stephen H. Anderson
                                                     Circuit Judge




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