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Parker v. Dinwiddie

January 27, 2009

ALVIN PARKER, PETITIONER - APPELLANT,
v.
WALTER DINWIDDIE, WARDEN, RESPONDENT - APPELLEE.



(D.Ct. No. 5:08-CV-00114-D) (W.D. Okla.).

The opinion of the court was delivered by: Terrence L. O'Brien United States Circuit Judge

ORDER DENYING CERTIFICATE OF APPEALABILITY AND DISMISSING APPEAL

Before O'BRIEN, McKAY, and GORSUCH, Circuit Judges.

Alvin Parker, a state prisoner proceeding pro se,*fn1 seeks a Certificate of Appealability (COA) to appeal from the denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.*fn2 We deny a COA.

I. Background

Parker filed a habeas corpus petition claiming the Oklahoma Pardon and Parole Board denied him due process when the Board considered false information in refusing to recommend him for specialized parole. See Okla. Stat. tit. 57, § 365 (specialized parole). The State responded to Parker's petition with a motion to dismiss for failure to state a claim upon which relief could be granted. The magistrate judge issued a report and recommendation recommending the state's motion be granted because Parker did not have a liberty interest under the Oklahoma parole statute. Parker objected arguing he had a constitutionally protected liberty interest under § 365, the specialized parole statute. He claimed the more specific statute affords rights different from those in the general parole statute, Okla. Stat. tit. 57, § 332. He further argued, even absent a liberty interest, he had a due process right not to be denied parole based on false information. The district court rejected his arguments.

Parker filed a motion to alter or amend the judgment followed by a motion to amend his petition to add another claim. The district court denied these motions and denied Parker's request for a COA.*fn3 Parker renews his request for a COA with this Court.

II. DISCUSSION

A COA is a jurisdictional pre-requisite to our review. Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000). We will issue a COA only if Parker makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make this showing, he must establish that "reasonable jurists could debate whether . . . the petition should have been resolved [by the district court] 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).

The district court denied Parker's petition because the Board's statutory discretion precluded the creation of a liberty interest in parole. Further, Parker failed to allege the state officials relied on admittedly false information in the decision to deny parole.

The resolution of Parker's claims is not subject to debate.

A. Liberty Interest

A state's parole statute can create a liberty interest in the expectancy of parole only when the statute's language and structure sufficiently limits the discretion of a parole board. See Bd. of Pardons v. Allen, 482 U.S. 369, 381 (1987) (determining a Montana parole statute created a liberty interest in the expectancy of parole by its use of mandatory language); Greenholtz v. Inmates of the Neb. Penal & Corr'al. Complex, 442 U.S. 1, 12 (1979) (determining a Nebraska parole statute's mandatory language created a liberty interest); but see Jago v. Van Curen, 45 ...


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