Sollis v. Lind

FILED
United States Court of Appeals
Tenth Circuit
October 6, 2016
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
SCOTT A. SOLLIS,
Petitioner - Appellant,
No. 16-1238
v. (D.C. No. 1:16-CV-00673-LTB)
(D. Colo.)
WARDEN LIND,
Respondent - Appellee.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, McKAY, and MORITZ, Circuit Judges.
Defendant-Appellant Scott A. Sollis, a state inmate appearing pro se, seeks
a certificate of appealability (“COA”) to appeal from the district court’s dismissal
of his Application for a Writ of Habeas Corpus (“Application”) made pursuant to
28 U.S.C. § 2241. We deny Mr. Sollis’s requests for a COA and in forma paupris
(“IFP”), and dismiss the appeal because he has not made “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Slack v.
McDaniel, 529 U.S. 473, 483–84 (2000).
State prisoners seeking to appeal the denial of relief under § 2241 must
obtain a COA. Montez v. McKinna, 208 F.3d 862, 868–69 (10th Cir. 2000). To
obtain a COA, Mr. Sollis 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.’” Slack, 529 U.S. at 484 (quoting Barefoot v.
Estelle, 463 U.S. 880, 893 n.4 (1983)).
On appeal, Mr. Sollis argues that his parole hearing was conducted
unlawfully. In his Application, he argued that the correctional facility personal
deprived him of liberty in violation of the Fourteenth Amendment’s Due Process
Clause by, without notice, rescheduling his parole hearing for an earlier date, and
by distracting him during his parole hearing. These events, he maintains,
constituted a deprivation of liberty because he did not have enough time, and was
not in the proper mindset, to prepare and execute an adequate defense. The
district court concluded that because a parole board’s decision is discretionary
under state law, Mr. Sollis lacked a constitutionally protected liberty interest.
The district court’s conclusion is not reasonably debatable. Parole is not a
liberty interest under federal law. Greenholtz v. Inmates of Nebraska Penal &
Corr. Complex, 442 U.S. 1, 7 (1979); Lustgarden v. Gunter, 966 F.2d 552, 555
(10th Cir. 1992) (“Parole is a privilege; there is no constitutional or inherent right
to parole.”). A state can make parole a liberty interest if it includes mandatory
language in its parole statute, Bd. of Pardons v. Allen, 482 U.S. 369, 371 (1987),
but Colorado has not done so. For prisoners serving sentences for crimes
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committed after July 1, 1985, the Colorado Parole Board has “‘unlimited
discretion’” to grant or deny prisoners parole. Childs v. Werholtz, 516 F. App’x
708, 709 (10th Cir. 2013) (quoting Mulberry v. Neal, 96 F. Supp. 2d 1149, 1150
(D. Colo. 2000)). Mr. Sollis was convicted of committing a crime that occurred
after July 1, 1985, and therefore does not have a liberty interest in parole under
Colorado law.
Because Mr. Sollis has not identified a valid liberty interest, it was
unnecessary for the district court to consider whether the state provided him with
adequate process.
We DENY Mr. Sollis’s request for a COA, DENY his motion for IFP
status, and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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