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 CERTIFIC ATE OF APPEALABILITY

________________ _________________ Before BRISCOE , HARTZ , and BACHARACH , Circuit Judges.

________________ _________________ Chester Bird seeks a certificate of appeal ability (COA) to cha llenge the dismissal of his application for relief unde r 28 U.S.C. § 2241 by the Unite d 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 constituti onal right, we deny his request for a COA. Mr. Bird was sentenced in 1994 to two conc urrent life sentences in the custody of the Wyoming Department of Corr ections. 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 

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Elisabeth A. Shumaker Clerk of Court2 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 possib ility of parole. See id. Although prisoners servi ng a life sentence and those serving a sentence of life without the po ssibility of parole are both ineligible for parole, prisoners with a life sentence (suc h 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 2 015 seeking a declaratory judgment that, among other things, he should not be denied parole eligib ility while he is statutorily required to save money for use upon releas e from prison. He argued that the new mandatory-savings statute repealed the statut e that forecloses paro le eligibility to lifesentence prisoners because it implied that a pe rson paying into such an account could be released from prison. Characterizing this ar gument as raising an equal-protection claim and a statutory-interpretation claim, the stat e district court dismissed the complaint, concluding that Mr. Bird is si milarly situated to others su bject to the mandatory-savings statute because he may be released after comm utation just as term-o f-years prisoners may be released on parole. Mr. Bi rd also argued that requiring life-sentence prisoners to save money to help facilitate their release from inca rceration is a violati on of equal protection because, unlike the term-of-years prisoners, they are unlikely ever to be released. The court dismissed this claim because, althou gh the likelihood is small, life-sentence prisoners may be released th rough commutation of a life sent ence 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 st atutory 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 pa role] arises under the doctrine of equal protection of the Fourteenth Amendment to the Constitution of the United States . . . . On its face, Wyoming Statute Annot ated § 7-16-205(a)(i) prescribes that life sentenced prisoners are sim ilarly 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 Cour t and the Appellees contend that a life sentenced prisoner, like Bird, is not parole/release-eligible, except to the extent “that the legislature intende d for the Department of Corrections to maintain a fund” and he is not paro le/release-eligible until his sentence is actually commuted or pardoned by the Go vernor. 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 a ffirmed. It said that th e mandatory-savings statute appropriately provides for the “remote conti ngency” 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 even tual release.

2 Referring to Jones v. Houston , No. 4:06CV3314, 2007 WL 3275125, at *11 (D. Neb. Nov. 2, 2007), which addressed mandatory-sav ings 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 se ntences are reserved fo r the most egregious crimes,” it said that “those sentenced to lif e 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 pr ison 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 sa vings requirement,” and there was no equalprotection violation in requiri ng Mr. Bird to save for th e unlikely contingency of his release even though the life- without-parole prisoners were not required to save. Id. The court also held that the st atute that forecloses life-s entence prisoners from parole eligibility does not violate equal protecti on because life-sentence prisoners are not “similarly situated” to term-of-y ears prisoners in that they ha ve no vested right in ever being released. See id. at 63, 65. On December 30, 2016, Mr. Bird filed hi s application for relief under § 2241. Construed liberally, see Kay v. Bemis , 500 F.3d 1214, 1218 (10t h 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 fo r parole. The district court dismissed the challenge to mandatory savings without pr ejudice because it does not relate to the execution of his sentence and should have be en brought under 42 U. S.C. § 1983 rather than 28 U.S.C. § 2241. As for the second claim, the distri ct court dismissed it without prejudice on the ground that he had not exhaus ted his remedies in state court. In this5 court Mr. Bird does not challenge the dismissal of his first claim but seeks a COA to challenge the dismissa l 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 reso lved in a different manner or that the issues presented were ad equate to deserve enco uragement 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 “t hat 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 challenge s to sentencing matters, the Supreme Court and this court have ap plied rational-basis review. See McGinnis v. Royster , 410 U.S. 263, 265-70 (1973) (good-time credit to ward parole eligibility denied for prison time in county jails but granted to thos e released on bail pending sentencing); United States v. Titley , 770 F.3d 1357, 1359–62 (10th Cir. 20 14) (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 and6 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 in eligibility 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 possib ility of his release may justify manda ting 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