Crank v. Jenks ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 21, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
R OBER T FLO Y D CR AN K ,
Petitioner - A ppellant,
v.
No. 07-7000
(D.C. No. CIV-05-387-S)
TERRY JENKS, Executive Director
(E.D. Okla.)
Pardon & Parole Board, Department of
Corrections, State of Oklahoma,
Respondent - Appellee.
OR DER DENYING A CERTIFICATE
OF APPEALABILITY
Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.
Robert F. Crank, a state prisoner proceeding pro se, requests a certificate of
appealability (“COA”) to appeal the district court’s dismissal of his § 2241
habeas petition. For substantially the same reasons set forth by the district court,
we D EN Y a COA and DISM ISS.
Crank is serving a 35-year sentence for Attempted Robbery with Firearms
and Shooting with Intent to Kill. Upon entering prison in 1995, Crank was
scheduled for an initial parole hearing in December 2001. In 1998, following
passage of a new state law amending parole eligibility, see Okla. Stat. tit. 57, §
332.7, Crank’s initial parole hearing was rescheduled for M ay 2006. Arguing that
the retroactive application of this statute violates the Ex Post Facto Clause of the
Constitution, Crank filed a 28 U.S.C. § 2241 habeas petition on September 19,
2005. The district court dismissed Cranks petition, finding that he had failed to
exhaust his state remedies, and did not grant a COA. Crank now seeks a COA
from this court. 1
“A habeas petitioner is generally required to exhaust state remedies
whether his action is brought under § 2241 or § 2254.” M ontez v. M cKinna, 208
F.3d 862, 866 (10th Cir. 2000) (citing Coleman v. Thompson, 501 U.S. 722, 731
(1991). Crank could have filed a habeas petition in state court pursuant to Okla.
Stat. tit. 12, § 1331, but failed to do so. He asserts that a state habeas petition
would be futile, but makes only conclusory allegations of general bias. “W e will
not excuse a failure to exhaust state remedies unless it is affirmatively shown that
resort to them would be useless.” Clonce v. Presley, 640 F.2d 271, 273 (10th Cir.
1981). Crank has not made an affirmative showing that a state habeas petition
would be futile.
1
AEDPA conditions a state petitioner’s right to appeal a denial of habeas
relief upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may be issued
“only if the applicant has made a substantial showing of the denial of a
constitutional right.” § 2253(c)(2). This requires Crank to show “that reasonable
jurists could debate w hether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues presented w ere
adequate to deserve encouragement to proceed further.” Slack v. M cDaniel, 529
U.S. 473, 484 (2000) (quotations omitted). Because the district court did not rule
on whether to grant a COA, we assume it w as denied. 10th Cir. R. 22.1(C).
Accordingly, Crank may not appeal the district court’s decision absent a grant of
a COA by this court.
-2-
For the reasons set forth above, Crank’s request for a COA is DENIED,
and his appeal is DISM ISSED. All pending motions are DENIED.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
-3-