Ash-Shahid v. Roberts , 531 F. App'x 925 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
August 27, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
WAHID ASH-SHAHID, f/k/a James
Nance,
Petitioner - Appellant,
v. No. 13-3141
(D.C. No. 5:13-CV-03065-SAC)
RAY ROBERTS, Secretary of (D. Kansas)
Corrections,
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.
Applicant Wahid Ash-Shahid, a Kansas state prisoner, applied for relief
under 28 U.S.C. § 2241 in the United States District Court for the District of
Kansas. The district court denied the application. Applicant now seeks a
certificate of appealability (COA) from this court so that he may appeal the
district court’s decision. See Montez v. McKinna, 208 F.3d 862, 868–69 (10th
Cir. 2000) (requiring a COA to appeal dismissal of habeas application brought by
state prisoner under 28 U.S.C. § 2241). We deny a COA and dismiss the appeal.
Applicant is serving consecutive sentences for several state felonies. After
15 years, he became eligible for parole on his first sentence. He filed suit in state
court, alleging that once he became eligible for parole on his first sentence,
Kansas law required that the first sentence be terminated and that his remaining
prison term count exclusively toward his second sentence. The state trial court
denied the claim, the Kansas Court of Appeals affirmed, and the Kansas Supreme
Court denied Applicant’s petition for review. On April 9, 2013, Applicant filed a
§ 2241 application alleging that once he became eligible for parole on his first
sentence, Kansas law required that the first sentence be terminated and his
remaining prison term count toward his second sentence. The district court
ordered that Applicant show cause why his application should not be denied for
failure to present a federal claim. See 28 U.S.C. § 2241(c)(3) (“The writ of
habeas corpus shall not extend to a prisoner unless . . . [h]e is in custody in
violation of the Constitution or laws or treaties of the United States.”). Applicant
responded that the Kansas Department of Correction’s failure to terminate his
first sentence was improper under Kansas statutes and case law. The district
court dismissed the application.
We construe Applicant’s request for a COA liberally because he proceeds
pro se. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). A COA
will issue “only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a
demonstration that . . . includes showing that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in
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a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(internal quotation marks omitted). In other words, the applicant must show that
the district court’s resolution of the constitutional claim was either “debatable or
wrong.” Id.Reasonable jurists would not debate the district court’s dismissal of the
application. It is well-settled that errors of state law do not merit federal habeas
relief. See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). The district court
correctly determined that Applicant had not alleged that he was “in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2241(c)(3). His application vaguely stated that the failure to terminate his first
sentence violated his right to due process. But the essence of his ground for relief
was the violation of state law, and his response to the order to show cause was
based exclusively on state statutes and cases.
We DENY a COA and DISMISS the appeal. Applicant’s motion to proceed
in forma pauperis is GRANTED.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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