UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

RANDY KAILEY, Petitioner – Appellant,

v. WILLIAM PRICE; THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondent - Appellee. No. 12-1276 (D.C. No. 1:11-CV-03418-REB (D. Colo.)

ORDER DENYING CERTIFICA TE OF APPEALABILITY, MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF FEES, AND DISMISSING APPEAL

Before LUCERO , O'BRIEN , and MATHESON , Circuit Judges.

Randy Kailey, a Colorado stat e prisoner proceeding pro se, 1 wants to appeal from the district court’s denial of his 28 U.S.C. § 2241 habeas petition. His petition was based upon the alleged denial of ea rned time credits. The court concluded he did not make “a substantial showing of the deni al of a constitutional right.” See 28 U.S.C. § 2253(c)(2). Because that decision is not even debatabl y incorrect we deny Kailey’s request for a Certificate of Appealability (COA).

1 We liberally construe Kailey’s pro se filings. See Ledbetter v. City of Topeka, Kan. , 318 F.3d 1183, 1187 (10th Cir. 2003). FILED United States Court of Appeals Tenth Circuit 

### September 27, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - Kailey, who is serving a 32-year sentence on two counts of aggravated incest, believes he is entitled to 1,154 days of earned time credits based on “his placement upon mental health care waiting lists and actual participation in more than 600 hours of ‘recommended’ treatment programs.” (App ellant’s Combined Opening Br. & COA Application at 3.) According to him, if he had been properly granted this credit he would be eligible for immediate releas e. The district court disagree d. In Colorado, earned time credits do not count as service of the inmate’s sentence but ra ther serve only to establish parole eligibility. Many inmates serving a sentence for a crime committed between July 1, 1979, and July 1, 1985, ar e entitled to mandatory parole when their time served plus earned time credits equal the sentence imposed . Kailey’s case is different because it involves sex offense convictions . Those convictions preclude mandatory parole. Even if Kailey were to be awarded the 1,154 days of earned time credit to which he claims to be due, the court concluded it would not entitle hi m to immediate or an earlier release. A COA is a jurisdictional prerequisite to our review of a petition for a writ of habeas corpus. Miller-El v. Cockrell , 537 U.S. 322, 336 (2003); see also Montez v. McKinna, 208 F.3d 862, 868-69 (10t h Cir. 2000) (requiring a COA to appeal dismissal of habeas application brought by state prisone r under 28 U.S.C. § 2 241). We will issue a COA “only if the applicant has made a s ubstantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, an applicant must demonstrate “that reasonable jurists coul d 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 v.- 3 - McDaniel , 529 U.S. 473, 484 (20 00) (quotations omitted). In evaluating whether an applicant has satisfied this bur den, we undertake “a prelimin ary, though not definitive, consideration of the [legal ] framework” applicable to each of his claims. Miller-El , 537
U.S. at 338. In a cogent order the district court thoroughly and correctly addressed and resolved the issues presented. In his reque st to us for a COA, Kailey relies mainly on Templeman v. Gunter , 16 F.3d 367 (10th Cir. 1994), clai ming the denial of earned time credit deprives him of a constitutionally protect ed liberty interest because “‘those credits moved forward his mandatory release.’” (Appellant’s Combined COA Application & Opening Br. at 3c (quoting Templeman ).) Kailey misquotes Templeman . There, we said “[d]enying mandatory earned time credits would deprive Templeman of a liberty interest because the credits move forward his mandatory date of release on parole .” 16 F.3d at 370 (emphasis added). As the district court explained, in Colorado, earned time credits do not count as service of the inmate’s sentence but rath er serve only to establish parole eligibility. See Jones v. Martinez , 799 P.2d 385, 387-88 & n.5 (Colo. 1990 ) (collecting cases). Because Kailey’s offenses are sex offenses, he is not entitled to mandatory parole; instea d, parole is within the discretion of the Parole Board. 2 See Thiret v. Kautzky , 792 P.2d 801, 805-07 (Colo.

2 According to the record, Ka iley’s parole eligibility date has passed and “[h]e has been scheduled for hearings w ith the Parole Board . . . at least once per year . . . since June 1999. Kailey either waived his right to meet the Parole Board or was deferred at the discretion of the Parole Board each time.” (R . at 71.) In his COA application, Kailey states he is not seeking parole but to discharge his sentence.- 4 - 1990) (inmates sentenced to a crime committed after July 1, 1979, but before July 1, 1985, are normally entitled to ma ndatory parole; an exception to manda tory parole are those inmates sentenced for a sex offense, for them, parole is discretionary). Therefore, even if the credits he seeks were awarded, he would not be eligible for immediate or speedier release. 3 Boutwell v. Keating, 399 F.3d 1203, 1209 (10t h Cir. 2005) (“[H]abeas corpus is the only avenue for a challenge to th e fact or duration of confinement, at least when the remedy requested would result in th e prisoner’s immediate or speedier release from that confinement.”) (em phasis in original omitted); see also Frazier v. Jackson , 385 F. App’x 808, 81 0-11 (10th Cir. 2010) (unpublished), cert. denied , 131 S. Ct. 912 (2011) (“An application for habeas relief may be gr anted only when the remedy requested would result in the prisoner’s immediate or speedi er release from confinement.”) (quotations omitted). 4

3 Colorado case law is clear that earned time credit does not decrease the actual sentence imposed but only establishes an inmate’s parole eligibility. See Jones , 799 P.2d at 387-88 & n.5. Nevertheless, in its re sponse to Kailey’s § 2241 petition, the State contended Kailey had earned 1, 709 days of earned time credit out of a possible 2,850 days that could have been earned. It then stated Kailey’s “statutory discharge date” was February 27, 2013. (R. at 72.) In calcula ting this date, it accounted for the earned time credit Kailey had already been gr anted as well as the credit he was projected to earn. The district court noted this discrepancy, i.e., Colorado case law says earned time credit does not decrease the actual sentence imposed yet the Department of Co rrections is using earned time credit to determine Kailey’s “statu tory discharge date.” It resolved the discrepancy by noting the State had not defined the term “statutory di scharge date” in its filings and concluded the date wa s a discretionary discharge date. We decline to resolve any discrepancy and are bound by Colorado case law on the issue. See Parker v. Scott , 394 F.3d 1302, 1319 (10th Cir. 2005) (s tating we are bound by a state court’s construction of its state’s statutes). 4 Unpublished opinions are not binding pr ecedent. 10th Cir. R. App. P. 32.1(A). We mention Frazier because of its persuasive and reasoned analysis.- 5 - As no jurist of reason could reasonably debate the correctness of the district court’s decision, we DENY the request for a COA and DISMISS this matter. We DENY Kailey’s request to proceed without prepayment of the filing fees. Filing and docketing fees are due and payable to th e Clerk of the District Court. 5

Entered by the Court: Terrence L. O’Brien United States Circuit Judge

5 Dismissal of an appeal does not relieve a litigant of his obligation to pay the filing fee in full. Kinnell v. Graves , 265 F.3d 1125, 1129 (10th Cir. 2001).