Deyulia v. Suthers ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 1 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JOSEPH FREDERICK DEYULIA,
Petitioner-Appellant,
v. No. 00-1073
(D.C. No. 00-Z-40)
JOHN W. SUTHERS, Executive (D. Colo.)
Director, Colorado Department of
Corrections; FRANK LUNA, Warden;
ATTORNEY GENERAL FOR THE
STATE OF COLORADO,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before BRORBY , KELLY , and LUCERO , Circuit Judges.
Petitioner Joseph Frederick DeYulia appeals from the district court ’s denial
of his habeas petition, filed pro se pursuant to 28 U.S.C. § 2254. 1
Under the
provisions of the Antiterrorism and Effective Death Penalty Act, petitioner must
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
obtain a certificate of appealability (COA) before his appeal can proceed before
this court. See 28 U.S.C. § 2253(c)(1)(A). Because the district court denied
petitioner’s motion for COA, petitioner must demonstrate “a substantial showing
of the denial of a constitutional right” before COA can issue. See id.§ 2253(c)(2). Petitioner also seeks leave to proceed on appeal in forma pauperis ;
that request is granted.
In his habeas application, petitioner challenged imposition of a mandatory
parole period as part of his criminal sentence. He claimed the provision violated
the separation of powers doctrine and double jeopardy, and, because his parole
was revoked, resulted in a period of incarceration greater than the presumptive
maximum for his crime. The district court rejected these issues on the merits
and denied petitioner’s habeas application. On appeal, petitioner argues these
same issues. We construe petitioner’s allegations liberally, as required by Haines
v. Kerner , 404 U.S. 519, 520 (1972).
Our review of petitioner’s arguments and the applicable law convinces
us that, for substantially the reasons set forth in the district court ’s order dated
-2-
January 18, 2000, petitioner has not demonstrated the denial of a constitutional
right. Petitioner’s motion for a certificate of appealability is DENIED and the
appeal is DISMISSED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
-3-