* This order is not binding precedent, except underthe doctrines of law of

the case, res judicata, and collateral estoppel. T he court generally disfavors the citation of orders; nevertheless, an order may be c ited under the terms and conditions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate reco rd, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered su bmitted without oral argument. 

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

### October 7, 2005

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ALVIN PARKER,

Petitioner-Appellant, No. 05-6124

v. (W.D. of Okla.) MARTY SIRMONS, Warden,

Respondent-Appellee. (D.C. No. CV-04-1718-T)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges. **

Petitioner-Appellant Alvin Parker, a state prisonerappearing pro se, filed a petition for writ of habeas corpus in the United St ates District Court for the Western District of Oklahoma. Parker sought relief under 28 U.S.C. § 2254, which the court construed as a request for relief u nder 28 U.S.C. § 2241. Upon-2-

the magistrate’s recommendation, the district courtdenied the petition. The district court also denied Parker’s request for a c ertificate of appealability (COA).
See 28 U.S.C. § 2253(c)(1) (requiring a petitioner to o btain COA before appealing a district court's final order in a habeas corpus p roceeding challenging state detention). Parker now seeks to obtain a COA from this court based on the same grounds that were denied by the district court. Because Parker has not made a substantial showing of the denial of a constitution al right, we deny a COA and dismiss the appeal. I. Background Parker was tried in Oklahoma state court for the 19 85 shooting death of an Oklahoma City police officer. After a retrial in 1 990, Parker was convicted of second-degree murder after a former felony convicti on. He was sentenced to 199 years imprisonment. He appealed, and the Oklahoma Court of Criminal Appeals affirmed his conviction in 1994. In 2004, Parker petitioned for a writ of habeas corpus in federal district court based on his challenge to information conside red by the Oklahoma Pardon and Parole Board in a parole hearing conducted on D ecember 7, 2004. Parker alleged that, although the Board was not required t o provide reasons for its decision and did not do so here, its decision to de ny Parker’s parole request was based solely on the fact that his victim was a poli ce officer. In support of his-3-

argument, Parker alleged (1) that he had completed nearly 20 years of continuous incarceration for his second-degree murder convicti on while the average time to make parole for prisoners serving life sentences fo r first-degree murder in the Oklahoma prison system was twenty-three and a half years; (2) that he had an “outstanding” institutional work/misconduct record (only two misconduct reports for refusal to submit to substance abuse testing) a nd had been on the waiting list for parole consideration for several years; (3) that his family and friends had submitted letters offering him housing, support, an d employment; and (4) that the facility’s parole investigator had recommended thatcommutation be granted. Based on these alleged facts, Parker contends the B oard must have considered the fact that his victim was a police officer and, furt her, it must have denied his request for parole solely on that basis. Parker did not explain how his allegations, if true , would constitute a violation of a specific federal right. He simply c laims that “[a]ll confidence in the outcome of petitioner’s parole hearing is under mined by this simple observation.” See Habeas Pet. at 6. Reading the petition liberally, the magistrate judg e construed Parker’s allegations as due process claims. The magistrate judge issued a report and recommendation, which discussed in detail the stand ards for both procedural and substantive due process and determined that Parker did not present a cognizable-4-

claim for relief under either theory. Parker timel y filed objections to the report. The district court agreed with the magistrate that Parker had failed to show a basis for habeas relief and found Parker had provid ed no persuasive arguments in his objections. Accordingly, the district court is sued an order denying Parker’s habeas petition. Parker timely applied for a COA i n the district court, which denied his application. Parker applied to this cou rt for a COA. Accompanying his application was a motion for leave to proceed i n forma pauperis pursuant to 28 U.S.C. § 1915. II. Analysis This court may issue a COA only if Parker “has made a substantial showing of the denial of a constitutional right.” 28 U.S.C . § 2253(c)(2). Parker will not succeed unless he “shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the de nial of a constitutional right.” Slack v. McDaniel , 529 U.S. 473, 484 (2000); United States v. Springfield, 337 F.3d 1175, 1177 (10th Cir. 2003). In addressing th is question, we may not engage in a “full consideration of the factual or legal ba ses adduced in support of the claims,” but rather we are limited to conducting “a n overview of the claims in the habeas petition and a general assessment of their m erits.” Miller-El v. Cockrell , 537 U.S. 322, 336 (2003). After conducting an overview of the claims raised, we-5-

find the resolution by the magistrate judge, as ado pted by the district court, to be undebatable. Before reviewing Parker’s claims and the decisions reached below, it should be noted that, although Parker styled his or iginal petition for habeas corpus as a request for relief under 28 U.S.C. § 22 54, both the magistrate and district court correctly construed it as a request for relief arising under § 2241. Section 2254 governs challenges to the validity of a conviction and sentence, whereas § 2241 governs challenges to the execution of the sentence. See Hamm v. Saffle , 300 F.3d 1213, 1216 (10th Cir. 2002). Here, Park er was challenging the denial of his request for parole, which clearly fal ls under the latter category. See United States v. Furman , 112 F.3d 435, 438 (10th Cir. 1997). Construed liberally, Parker’s petition alleged that the State of Oklahoma violated his Fourteenth Amendment rights to procedural and subst antive due process.
A. Procedural Due Process Claim For the reasons stated by the court below, we find that Parker has not made a substantial showing of a denial of his right to p rocedural due process. First, the United States Supreme Court has declared that “[t]h ere is no constitutional or inherent right of a convicted person to be conditio nally released before the expiration of a valid sentence.” Greenholtz v. Inmates of Neb. Penal & Corr. Complex , 442 U.S. 1, 7 (1979). Second, although a state may affirmatively create-6-

a liberty interest by enacting mandatory statutes t hat limit the parole board’s discretion, both the Tenth Circuit and the Oklahoma Supreme Court have made clear that Oklahoma has not done so. Shirley v. Chestnut , 603 F.2d 805, 807 (10th Cir. 1979) (“[T]he Oklahoma statutory scheme . . . does no more than create a parole system, which in the Supreme Court's view as expressed in Greenholtz does not establish a liberty interest.”); Shabazz v. Keating , 977 P.2d 1089, 1093 (Okla. 1999) (“[T]here is no protectible liberty in terest in an Oklahoma parole. . . . No due process strictures can be app lied to test the permissible parameters of the parole process.”). Indeed, Parke r concedes this fact in his present application for COA. See Pet’r. Applic. at 2. Finally, without a liberty interest in parole, there is no entitlement to due process protection. See Fristoe v. Thompson , 144 F.3d 627, 630 (10th Cir. 1998). Therefore, Parker’s allegation that the Board considered the identity or status of his victim is insufficient, even if true, to present a cognizable constitutional cla im.
B. Substantive Due Process Claim For reasons similar to those provided by the court below, we also find that Parker has failed to make a substantial showing of a violation of his substantive due process rights. Parker’s claim, liberally cons trued from his habeas petition and expanded in his brief before this court, is tha t the Board based its decision to deny his parole request on an arbitrary or constitu tionally impermissible reason.-7-

While no Tenth Circuit published opinion has addres sed a substantive due process challenge to the denial of parole of an Oklahoma in mate, the magistrate judge and district court below rejected Parker’s claim based on two alternative reasons—each one sufficient alone to support the co nclusion reached. First, the majority of other circuits to address th e question have found that the requirement of a state-created liberty interest is the threshold requirement for any due process claim—whether substantive or proced ural. See, e.g., Johnson v. Rodriguez , 110 F.3d 299, 308 (5th Cir. 1997), cert. denied, 522 U.S. 995 (1997) (“[B]ecause Texas prisoners have no protected liberty interest in parole they cannot mount a challenge against any state parole r eview procedure on procedural (or substantive) Due Process grounds.”); Jones v. Georgia State Bd. of Pardons & Paroles , 59 F.3d 1145, 1150 (11th Cir. 1995) (rejecting a substantive due process claim because the inmate had no due process protect ed liberty interest in parole); Bailey v. Gardebring , 940 F.2d 1150, 1157 (8th Cir. 1991) (affirming th e denial of a substantive due process claim because the inmate had no liberty interest in parole and no fundamental right to parole). Additi onally, the Oklahoma Supreme Court has confirmed that Oklahoma has not created aliberty interest in parole for purposes of substantive due process. See Shabazz , 977 P.2d at 1093 (rejecting Oklahoma prisoner’s substantive due process claim b ased on parole board’s consideration of an improper letter from prosecutin g attorney because “[t]he-8-

parole function neither leads to nor may ripen into a liberty interest”) (emphasis in original). Parker argues that this reasoning of the magistrate judge, as adopted by the district court, constituted improper reliance upon non-binding decisions without looking at their reasons. We disagree. The discus sion of Parker’s substantive due process claim included the specific holdings of the other circuits, stating the reason for their denial of such claims—lack of libe rty interest as required in the Supreme Court’s Greenholtz decision. Further, that reason was discussed at length in the preceding analysis of Parker’s proced ural due process claim, and it was unnecessary to repeat it in full. Moreover, this court need not ultimately decide her e whether to follow the majority of other circuits on the question of wheth er a liberty interest is required for a prisoner to bring a substantive due process c laim. The second reason for denying Parker’s claim, which is dispositive in thi s case, is that Parker has failed to allege or show that he was denied parole for arb itrary or otherwise constitutionally impermissible reasons. The Oklahoma Supreme Court has declared that, in Oklahoma, the parole board is the “ sole judge of what materials may be considered in the decision-making process .” See Shabazz , 977 P.2d at 1094 (emphasis in original). Although Parker repeatedly refers to the “impermissible factor” that his victim was a police officer, this conclusory-9-

characterization cites to no authority to show that the Constitution precludes its consideration in parole proceedings. Parker devot es one sentence to this problem at the end of the brief filed with this court. He contends that the fact does not bear a “rational relationship to an evaluation of p etitioner’s likelihood to adjust successfully to release status.” See Pet’r. Br. at 16.b. We disagree. For purposes of this inquiry, we may assume that Pe titioner’s allegation is true—that the Board based its decision to deny paro le solelyon the factor that his victim was a police officer and did not also consid er other factors such as Parker’s prison misconduct reports for refusal to s ubmit to substance abuse testing. Even under that assumption, the fact that a prisoner was convicted of killing a police officer, as opposed to a civilian citizen, shows a lack of respect for authority and a unique danger to society that b ears a rational relationship to his likelihood to adjust to society upon release. It is certainly not so beyond the realm of that consideration as to be declared “arbi trary.” See County of
Sacramento v. Lewis , 523 U.S. 833, 845-46 (1998) (emphasizing that the “touchstone of due process is protection of the ind ividual against arbitrary action of government”—whether procedural, through denial o f fundamental fairness, or substantive, through “the exercise of power withoutany reasonable justification in the service of a legitimate governmental objecti ve”) (internal citations and quotation marks omitted). Thus, absent any further showing that the-10-

consideration of that fact was itself a violation o f a fundamental right or implicated another constitutional provision, Parker ’s claim fails. Parker has not made a “substantial showing of the d enial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and “jurists of rea son” would not find the magistrate judge’s conclusions or the district court’s decision to adopt these conclusions debatable. Accordingly, we DENY COA an d DISMISS the case. We GRANT Parker’s motion to proceed in forma pauperis.

Entered for the Court
Timothy M. Tymkovich Circuit Judge