Morello v. Utah Board of Pardons ( 2006 )

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. § 2241habeas 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788 (10th Cir. 2001) (unpublished opinion).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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