UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

CHESTER L. BIRD, 

 Petitioner - Appellant, 

v. 

WYOMING ATTORNEY GENERAL; 

MICHAEL PACHECO, Wyoming 

Department of Corrections State 

Penitentiary Warden, 

 Respondents - Appellees. 

No. 17-8033 

(D.C. No. 2:16-CV-00320-NDF) 

(D. Wyo.) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY

_________________________________ 

Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges. 

_________________________________ 

Chester Bird seeks a certificate of appealability (COA) to challenge the dismissal 

of his application for relief under 28 U.S.C. § 2241 by the United States District Court for 

the District of Wyoming. See Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000)

(requiring COA to appeal a denial of § 2241 relief). Because Mr. Bird does not make a 

substantial showing of the denial of a constitutional right, we deny his request for a COA. 

Mr. Bird was sentenced in 1994 to two concurrent life sentences in the custody of 

the Wyoming Department of Corrections. Because of his life sentence, he is ineligible 

for parole. See Wyo. Stat. Ann. § 7-13-402(a). Nevertheless, legislation passed in 2010 

mandates that 10% of his prison-work income be placed in a personal savings account to 

FILED 

United States Court of Appeals 

Tenth Circuit 

October 16, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

be distributed upon parole or discharge. See Wyo. Stat. Ann. § 7-16-205(a)(i). The only 

prisoners exempt from mandatory savings are those serving a sentence of death or life 

without the possibility of parole. See id. Although prisoners serving a life sentence and 

those serving a sentence of life without the possibility of parole are both ineligible for 

parole, prisoners with a life sentence (such as Mr. Bird) may have their sentences 

commuted. See Bird v. Wyo. Bd. of Parole, 382 P.3d 56, 62 (Wyo. 2016). Both types of 

prisoners may be pardoned. See id. 

Mr. Bird filed suit in state court in 2015 seeking a declaratory judgment that, 

among other things, he should not be denied parole eligibility while he is statutorily 

required to save money for use upon release from prison. He argued that the new 

mandatory-savings statute repealed the statute that forecloses parole eligibility to lifesentence prisoners because it implied that a person paying into such an account could be 

released from prison. Characterizing this argument as raising an equal-protection claim 

and a statutory-interpretation claim, the state district court dismissed the complaint, 

concluding that Mr. Bird is similarly situated to others subject to the mandatory-savings 

statute because he may be released after commutation just as term-of-years prisoners may 

be released on parole. Mr. Bird also argued that requiring life-sentence prisoners to save 

money to help facilitate their release from incarceration is a violation of equal protection 

because, unlike the term-of-years prisoners, they are unlikely ever to be released. The 

court dismissed this claim because, although the likelihood is small, life-sentence 

prisoners may be released through commutation of a life sentence to a term of years. 
3 

Mr. Bird appealed to the Wyoming Supreme Court. In his pro se brief to that 

court he first argued that, as a matter of statutory interpretation, the mandatory savings 

statute made him eligible for parole. He then continued:

The repugnancy of [the statute mandating savings and the statute 

making life prisoners ineligible for parole] arises under the doctrine of 

equal protection of the Fourteenth Amendment to the Constitution of the 

United States . . . . 

On its face, Wyoming Statute Annotated § 7-16-205(a)(i) prescribes 

that life sentenced prisoners are similarly situated to “release-eligible” 

(term of years) prisoners, but only to the extent that it requires a savings 

account. Otherwise a life sentence prisoner does not receive any other 

benefits afforded a “release-eligible” prisoner. 

Aplt. App. Vol. 1 at 49. Later the brief concluded: 

In summary, however, the District Court and the Appellees contend that a 

life sentenced prisoner, like Bird, is not parole/release-eligible, except to 

the extent “that the legislature intended for the Department of Corrections 

to maintain a fund” and he is not parole/release-eligible until his sentence is 

actually commuted or pardoned by the Governor. This position is clearly 

contrary to the Constitution under Reedy[1] and Jones[2] and the State simply 

cannot have it both ways. 

Aplt. App. Vol. 1 at 53. 

The Wyoming Supreme Court affirmed. It said that the mandatory-savings statute 

appropriately provides for the “remote contingency” of a commuted life sentence even 

for life-sentence prisoners like Mr. Bird who are not eligible for parole. Bird, 382 P.3d at 

 

1

 Referring to Reedy v. Werholtz, 660 F.3d 1270, 1275 (10th Cir. 2011), which suggested, 

without deciding, that there is not a rational basis for requiring life-sentence prisoners to 

save for their eventual release. 

2

 Referring to Jones v. Houston, No. 4:06CV3314, 2007 WL 3275125, at *11 (D. Neb. 

Nov. 2, 2007), which addressed mandatory-savings accounts under a system that allowed 

life-sentence prisoners to be reimbursed because they would not be released. 
4 

64–65. Noting that “[l]ife without parole sentences are reserved for the most egregious 

crimes,” it said that “those sentenced to life according to law [have] better prospects for 

eventual release” and that requiring them to set aside money serves “a legitimate state 

interest in providing incentive to prisoners for good behavior that would enhance the 

possibility of leaving the prison system before the end of their lives.” Id. at 63. Hence, 

there is “a rational basis for treating the two categories of life-sentenced prisoners 

differently with respect to the prisoner savings requirement,” and there was no equalprotection violation in requiring Mr. Bird to save for the unlikely contingency of his 

release even though the life-without-parole prisoners were not required to save. Id. The 

court also held that the statute that forecloses life-sentence prisoners from parole 

eligibility does not violate equal protection because life-sentence prisoners are not 

“similarly situated” to term-of-years prisoners in that they have no vested right in ever 

being released. See id. at 63, 65. 

On December 30, 2016, Mr. Bird filed his application for relief under § 2241. 

Construed liberally, see Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007), it asserts 

that his right to equal protection is violated by either (1) the statutorily mandated savings 

requirement or (2) his statutory ineligibility for parole. The district court dismissed the 

challenge to mandatory savings without prejudice because it does not relate to the 

execution of his sentence and should have been brought under 42 U.S.C. § 1983 rather 

than 28 U.S.C. § 2241. As for the second claim, the district court dismissed it without 

prejudice on the ground that he had not exhausted his remedies in state court. In this 
5 

court Mr. Bird does not challenge the dismissal of his first claim but seeks a COA to 

challenge the dismissal of the second. 

To obtain a COA, a habeas petitioner must make “a substantial showing of the 

denial of a constitutional right, a demonstration that . . . includes showing that reasonable 

jurists could debate whether . . . 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. McDaniel, 529 U.S. 473, 483–84 (2000) (internal quotation marks 

omitted). Because his application was denied on procedural grounds, Mr. Bird faces a 

double hurdle. Not only must he make a substantial showing of the denial of a 

constitutional right, but he must also show “that jurists of reason would find it debatable 

whether the district court was correct in its procedural ruling.” Id. If he fails to 

surmount either hurdle, he is not entitled to a COA. See id. at 484. Here we deny a COA 

because reasonable jurists could not debate that he suffered an equal-protection violation. 

 In reviewing equal-protection challenges to sentencing matters, the Supreme 

Court and this court have applied rational-basis review. See McGinnis v. Royster, 410 

U.S. 263, 265-70 (1973) (good-time credit toward parole eligibility denied for prison 

time in county jails but granted to those released on bail pending sentencing); United 

States v. Titley, 770 F.3d 1357, 1359–62 (10th Cir. 2014) (same criminal conduct may be 

felony in one state but only misdemeanor in another, thereby affecting eligibility for 

sentence enhancement under the Armed Career Criminal Act); United States v. 

Thurmond, 7 F.3d 947, 953 (10th Cir. 1993) (disparate sentencing for cocaine base and 
6 

cocaine powder); United States v. Easter, 981 F.2d 1549 1558–59 (10th Cir. 1992) 

(same). Mr. Bird has not argued for a different standard of review, so we apply it here. 

The rational basis in this case is clear. Offenses punished by a life sentence are 

generally more abhorrent than those punished by a term of years. It is therefore rational 

to impose more severe sanctions—such as ineligibility for parole— on the former. We 

see no equal-protection violation in Wyoming’s decision not to allow parole for Mr. Bird, 

even though the possibility of his release may justify mandating saving of a percentage of 

his prison income. No reasonable jurist could debate otherwise. 

We DENY the application for a COA and DISMISS the appeal. 

Entered for the Court 

Harris L Hartz 

Circuit Judge