Durre v. Zenon

F I L E D
United States Court of Appeals
Tenth Circuit
OCT 12 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
EDGAR LEE DURRE,
Petitioner - Appellant,
v.
CARL ZENON, Warden, Colorado No. 04-1080
Parole Board, COLORADO PAROLE (D.C. No. 03-Z-1982)
BOARD; COLORDO ATTORNEY (D. Colo.)
GENERAL; CHRIS DEVLIN, Hearing
Judge; DANIEL MORALES, Hearing
Judge,
Respondents - Appellees.
ORDER DENYING A CERTIFICATE OF
APPEALABILITY
Before SEYMOUR, LUCERO, and O’BRIEN, Circuit Judges.
Pro se petitioner Edgar Lee Durre, a Colorado state prisoner, requests a
Certificate of Appealability (“COA”) to appeal the district court’s denial of his 28
U.S.C. § 2254 petition based on his failure to timely file. For substantially the
same reasons as the district court, we DENY a COA and DISMISS this matter.
On September 12, 2003, Durre commenced a § 2254 action to challenge the
denial of his parole. The district court recharacterized Durre’s § 2254 petition as
one brought pursuant to 28 U.S.C. § 2241 because Durre sought to attack the
execution of his sentence rather than its underlying validity. See Montez v.
McKinna, 208 F.3d 862, 865 (10th Cir. 2000); see also United States v. Furman,
112 F.3d 435, 438 (10th Cir. 1997) (reasoning that challenges concerning parole
procedures “go to the execution of sentence and, thus, should be brought against
defendant’s custodian under 28 U.S.C. § 2241”).
Because Durre’s petition was filed after April 24, 1996, the effective date
of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), AEDPA’s
provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1
(10th Cir. 1999). AEDPA provides a one-year limitation period for an application
for habeas relief, which in this case began to run on October 1, 2001, the date on
which the denial of Durre’s parole occurred. See 28 U.S.C. § 2244(d). After
ordering Durre to show cause why his petition should not be denied pursuant to
AEDPA’s one-year limitation period, the district court dismissed his petition.
Durre now appeals from the dismissal of his petition. 1
1
AEDPA conditions a state petitioner’s right to appeal a denial of habeas
relief under § 2241 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 Durre to demonstrate “that
reasonable jurists could debate whether (or, for that matter, agree that) the
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2
On appeal, Durre argues that because he is challenging the parole board’s
denial of parole, rather than his “original sentence,” AEDPA’s one-year limitation
period should not apply. However, we have held that a challenge to the execution
of a state sentence—here the denial of parole—is properly brought as an
application for writ of habeas corpus under 28 U.S.C. § 2241. See Montez, 208
F.3d at 865 (“A habeas corpus proceeding attacks the fact or duration of a
prisoner’s confinement and seeks the remedy of immediate release or a shortened
period of confinement.”) (quotation omitted). As such, Durre’s habeas petition is
subject to a one-year limitation period pursuant to 28 U.S.C. § 2244(d). Burger v.
Scott, 317 F.3d 1133, 1138 (10th Cir. 2003).
Having reviewed the material portions of the record and the brief on
appeal, we agree with the district court that Durre’s petition is untimely.
Accordingly, we conclude that reasonable jurists would not debate whether
Durre’s § 2241 petition is barred by AEDPA’s one-year limitation period. See 28
U.S.C. § 2244(d).
Durre’s request for a COA is DENIED, and this application is
DISMISSED. Durre’s request to proceed on appeal pursuant to 28 U.S.C. § 1915
1
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petition should have been resolved in 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) (quotations omitted). Because the district
court denied Durre a COA, he may not appeal the district court’s decision absent
a grant of a COA by this court.
3
is GRANTED.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
4