* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 24 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DANNY RAY LAMB,

Petitioner-Appellant,

v. DAVID R. MCKUNE, CARLA J. STOVALL, Respondents-Appellees. No. 96-3227 (Dist. of Kansas) (D.C. No. 95-3273-DES)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, PORFILIO and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ause is therefore ordered submitted without oral argument.-2-

In 1973 Petitioner Danny Ray Lamb was convicted in Kansas state court of aggravated robbery and kidnaping and was sentenced to consecutive terms of fifteen years to life for each of the two crimes. In 1995 Lamb petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, appearing pro se . He asserted that the court should grant him a writ of habeas corpus on grounds that he was entitled to a twenty percent good time credi t in the calculation of his conditional release date. The district court denie d the petition for writ of habeas corpus, as well as Lamb’s subsequent request for a certificate of appealability under 28 U.S.C. § 2253(c). Lamb now requests a certificate of appealability from this court. A habeas petitioner is entitled to a certificate of appealability only upon a “substantial showing of the denial of a constitutio nal right.” 28 U.S.C. § 2253(c)(2). This court has held that the standard for granting a certificate of appealability under the Act is the same standard se t out by the Supreme Court in Barefoot v. Estelle , 463 U.S. 880 (1993). Lennox v. Evans , 87 F.3d 431, 434 (10th Cir. 1996), cert. denied, 117 S.Ct. 746 (1997). Under the Barefoot standard, a certificate of appealability will issue only where the petitioner has demonstrated the issues raised are (1) debatable am ong jurists of reason, (2) a court could resolve the issues differently, or (3) the questions presented are deserving of further proceedings. Barefoot, 463 U.S. at 893 n.4.-3-

We have reviewed the district court’s order, Lamb’s brief and application for a certificate of appealability, and the entire record before us on appeal. We conclude that Lamb has failed to make a “substantia l showing of the denial of a constitutional right” for substantially the reasons set forth in the district court’s order dated April 30, 1996. Lamb cites to Kansas statutory law governing parole eligibility and the role of minimum sentences and good time credits in the c alculation thereof. He fails to take into account, however, that the statutory s tandard for conditional release is not only different from the statutory standard for parole eligibility to which he refers, but conclusively forecloses his argument as well. Kansas state law dictates that an inmate’s conditional release date is calcul ated by deducting “such work and good behavior credits as have been earned” fromthe maximum term imposed. Kan. Stat. Ann. § 22-3718. Where a life sentence i s imposed, there is no starting point from which to calculate any reduction. See State v. Carmichael , 801 P.2d 1315, 1318 (Kan. 1990). Because Lamb is subject to a life sentence, he has no conditional release date. Accordingly, we DENYLamb a certificate of appealability and DISMISS the appeal. ENTERED FOR THE COURT, Michael R. Murphy Circuit Judge