Rojas v. Roberts ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS August 27, 2008
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JOSE ROJAS,
Petitioner-Appellant,
v. No. 08-3118
(No. 08-CV-03100-SAC)
RAY ROBERTS, Warden, (D. Kan.)
Respondent-Appellee.
ORDER *
Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.
Pro se Petitioner Jose Rojas, a state prisoner, seeks a certificate of
appealability to appeal the district court’s denial of his 28 U.S.C. § 2241 habeas
corpus petition. In 1987, Petitioner was convicted of one count of kidnaping and
two counts of second-degree murder. He was sentenced to consecutive terms of
life imprisonment on the kidnaping count and two terms of fifteen years to life on
the murder counts.
Petitioner claims he was entitled to a parole hearing after fifteen years
rather than thirty as the Kansas Department of Corrections determined and state
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
courts affirmed. He exhausted his claim in the Kansas state courts before filing
his petition in the federal district court. The district court denied the petition,
holding that Petitioner had not stated a claim for federal relief, and also denied
Petitioner’s subsequent motion to reconsider, which the court construed as a
motion to alter or amend the judgment. The district court explained that not only
did Petitioner fail to state a federal claim for relief but that he also misconstrued
state law. The court noted that the state case on which Petitioner relied, Cooper
v. Werholtz, 83 P.3d 1212 (Kan. 2004), did not support Petitioner’s claim because
Cooper involved a prisoner who had been convicted and sentenced on only one
count, whereas Petitioner was convicted and received consecutive sentences on
multiple counts.
Petitioner must obtain a certificate of appealability to challenge the district
court’s denial of his habeas corpus petition. See Montez v. McKinna, 208 F.3d
862, 867 (10th Cir. 2000). To obtain a certificate of appealability, Petitioner
must make a “substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). To meet this burden, Petitioner must demonstrate “that
reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that issues presented
were adequate to deserve encouragement to proceed further.” Slack v. McDaniel,
529 U.S. 473, 484 (2000) (internal quotation marks omitted).
We have reviewed Petitioner’s filings, the district court’s rulings, and the
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record on appeal. We find nothing that meets our standard for granting a
certificate of appealability. For substantially the reasons set forth in the district
court’s orders, we DENY Petitioner’s request for a certificate of appealability and
DISMISS the appeal. We GRANT Petitioner’s motion to proceed in forma
pauperis.
Entered for the Court
Monroe G. McKay
Circuit Judge
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