Gillison v. Hand

FILED
United States Court of Appeals
Tenth Circuit
April 7, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
DONALD GILLISON,
Petitioner - Appellant, No. 08-1453
v. (D. Colorado)
TIM HAND, Colorado Board of (D.C. No. 1:07-CV-00468-REB-MEH)
Parole,
Respondent - Appellee.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.
Donald Gillison, a state prisoner appearing pro se, seeks to appeal the
district court’s denial of his 28 U.S.C. § 2241 petition. The matter is before this
court on Gillison’s request for a certificate of appealability (“COA”). 1 See
28 U.S.C. § 2253(c)(1)(A) (providing no appeal may be taken from a “final order
1
On December 16, 2008, Gillison filed a document titled “Petition for Writ
of Certiorari.” Three days later, Gillison filed a document requesting his appeal
be “stayed” until he could find someone to help him with his opening brief. On
December 22, 2008, this court entered an order provisionally granting Gillison
additional time to file an opening brief should he so desire. That order informed
Gillison, however, that this court had construed his “Petition for Writ of
Certiorari” as an opening brief. Because Gillison did not file any additional
documents with this court, we hereby construe his “Petition for Writ of
Certiorari” as both a request for a COA and an opening brief.
in a habeas corpus proceeding in which the detention complained of arises out of
process issued by a State court” unless the petitioner first obtains a COA); Montez
v. McKinna, 208 F.3d 862, 869 (10th Cir. 2000) (holding that the requirements of
§ 2253(c)(1)(A) apply when the state habeas petitioner is proceeding under
§ 2241). Because Gillison has not made a “substantial showing of the denial of a
constitutional right,” this court denies his request for a COA and dismisses this
appeal. 28 U.S.C. § 2253(c)(2) (providing that a COA “may issue . . . only if the
applicant has made a substantial showing of the denial of a constitutional right”). 2
In his § 2241 petition, Gillison asserts the Colorado State Board of Parole
failed to follow appropriate procedures during its parole determination proceeding
in February 2007, erred in denying him parole, and denied him equal protection of
the laws when it treated him differently during parole proceedings because of his
“mental disabilities.” The matter was referred to a magistrate judge for initial
proceedings pursuant to 28 U.S.C. § 636(b)(1). The magistrate judge issued a
thorough and well-stated report and recommendation, recommending that the
district court deny Gillison’s § 2241 habeas petition. In particular, the magistrate
judge concluded that because the granting of parole is entirely discretionary under
the relevant Colorado statutory scheme, Gillison could not make out either a
procedural or substantive due process claim. Greenholtz v. Inmates of Neb. Penal
2
This court grants Gillison’s request to proceed on appeal in forma
pauperis.
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& Corr. Complex, 442 U.S. 1, 11-12 (1979); Malek v. Haun, 26 F.3d 1013, 1015
(10th Cir. 1994); Colo. Rev. Stat. § 17-2-201(4)(a), (9)(a). The magistrate judge
concluded Gillison’s equal protection claim failed because it contained nothing
more than vague and conclusory allegations. In particular, Gillison’s petition did
not describe, inter alia, his alleged disabilities or identify inmates who had been
treated differently. Brown v. Zavaras, 63 F.3d 967, 972 (10th Cir. 1995) (holding
that even pro se litigants must do more than advance conclusory allegations
regarding constitutional claims). Upon de novo review, the district judge adopted
the report and recommendation and denied Gillison’s petition.
A COA may issue if Gillison “has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing,
Gillison 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 the issues presented were adequate to deserve encouragement to
proceed further. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotation
omitted). In evaluating a request for a COA, it is not the role of this court to
engage in a “full consideration of the factual or legal bases adduced in support of
the claims.” Id. Instead, this court undertakes “a preliminary, though not
definitive, consideration of the [legal] framework” applicable to each claim. Id.
at 338. Gillison is not required to demonstrate that his appeal will succeed to be
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entitled to a COA. He must, however, “prove something more than the absence of
frivolity or the existence of mere good faith.” Id. (quotations omitted).
This court has reviewed Gillison’s appellate filings, the magistrate judge’s
report and recommendation, 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 Gillison is not entitled to a COA. The district court’s resolution of
Gillison’s petition is not reasonably subject to debate and the claims he seeks to
raise on appeal are not adequate to deserve further proceedings. Accordingly,
Gillison 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 Gillison’s request for a COA and DISMISSES this
appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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