Wardell v. Neal , 113 F. App'x 877 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 3 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
WENDEL ROBERT WARDELL, JR.,
Petitioner-Appellant,
v.
No. 04-1034
(District of Colorado)
DONICE A. NEAL, Superintendent;
(D.C. No. 03-BB-221 (OES))
JOSEPH G. ORTIZ; IRVING G.
JACQUEZ; A. F. STANLEY;
DEBRAH C. ALLEN,
Respondents-Appellees.
ORDER
Before EBEL, MURPHY, and McCONNELL, Circuit Judges.
Appellant, Wendel Robert Wardell filed an application for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241 on February 5, 2003 and filed a
supplemental application on June 17, 2003. Wardell raised five claims in his
application: (1) his due process rights were violated in connection with a prison
disciplinary hearing held on April 29, 1997; (2) his due process rights were
violated in connection with prison disciplinary hearings held on February 22,
2000 and March 22, 2000; (3) his due process rights were violated when the
Colorado state parole board rescinded its recommendation to grant parole; (4) his
due process rights were violated when he was denied parole on April 10, 2003;
and (5) he was denied parole in retaliation for filing his initial § 2241
application.
The district court denied Wardell relief on his first two claims on the basis
that they were untimely under 28 U.S.C. § 2244(d) 1
and Wardell had failed to
demonstrate any circumstances that would support the equitable tolling of the
one-year limitations period. See Miller v. Marr , 141 F.3d 976, 978 (10th Cir.
1998) . The court also denied Wardell’s third and fourth claims, concluding that
Colorado’s discretionary parole scheme did not create a liberty interest in parole.
Thompson v. Riveland , 714 P.2d 1338, 1340 (Colo. App. 1986). Finally, the
district court determined that Wardell’s fifth claim failed because the state parole
board’s decision to deny parole was based on a constitutionally valid ground, i.e. ,
Wardell’s disciplinary conviction. See Wildermuth v. Furlong , 147 F.3d 1234,
1236 (10th Cir. 1998) (“[W]here the denial of parole . . . rests on one
1
Although Wardell argues that he was unable to timely respond to the
district court’s order requesting the parties to supplement the record with
evidence regarding statutory tolling of the one-year limitations period, it is clear
from the district court’s order that Respondents provided the court with the
documentation necessary to resolve the issue. Further, Wardell has failed to
identify or describe the additional documents he wanted the court to consider.
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constitutionally valid ground, the Board’s consideration of an allegedly invalid
ground would not violate a constitutional right.” (quotation omitted)).
Wardell now seeks a certificate of appealability (“COA”) to enable him to
appeal the district court’s denial of his § 2241 application. 2
A COA may issue
“only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard
by demonstrating that jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.” Miller-El
v. Cockrell , 537 U.S. 322, 327 (2003). This “requires an overview of the claims
in the habeas petition and a general assessment of their merits.” Id. at 336.
Further, when the district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claim, a COA should
issue only when the prisoner shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
2
Although Wardell is now incarcerated in a federal prison pursuant to a pre-
trial detention order, at the time he commenced this § 2241 proceeding he was a
state prisoner. Further, all of his claims arise from state disciplinary and parole
proceedings. Accordingly, Wardell must obtain a COA before he is entitled to
appeal the district court’s ruling. See Montez v. McKinna, 208 F.3d 862, 869
(10th Cir. 2000) (“[T]his court reads § 2253(c)(1)(A) as applying whenever a
state prisoner habeas petition relates to matters flowing from a state court
detention order.”)
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right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling. Slack v. McDaniel , 529 U.S. 473, 484
(2000) .
This court has reviewed Wardell’s application for a COA and appellate
brief, the district court’s order, and the entire record on appeal pursuant to the
framework set out by the Supreme Court in Miller-El and concludes that Wardell
is not entitled to a COA. The district court’s resolution of Wardell’s claims is
not reasonably subject to debate and the claims are not adequate to deserve
further proceedings. Accordingly, Wardell has not “made a substantial showing
of the denial of a constitutional right” and is not entitled to a COA. 28 U.S.C. §
2253(c)(2).
This court denies Wardell’s request for a COA and dismisses this appeal.
Wardell’s motion to proceed in forma pauperis on appeal is denied .
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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