UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

KENNETH R. MARSHALL, 

 Petitioner - Appellant, 

v. 

KAMERON HARVANEK, Warden, 

 Respondent - Appellee. 

No. 17-7083 

(D.C. No. 6:17-CV-00200-RAW-KEW) 

(E.D. Okla.) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

_________________________________ 

Before BRISCOE, MATHESON, and EID, Circuit Judges. 

_________________________________ 

Pro se state prisoner Kenneth R. Marshall seeks a certificate of appealability 

(COA) to appeal the district court’s dismissal of his petition for habeas relief under 

28 U.S.C. § 2241.1

 We deny Marshall’s request for a COA and dismiss the appeal. 

I. 

Marshall is serving a life sentence in Oklahoma for a first-degree murder 

conviction. On January 27, 2017, a Nowata County District Court judge entered an 

order denying Marshall’s application for postconviction release. But the judge left 

 * This order is not binding precedent, except under the doctrines of law of the 

case, res judicata, and collateral estoppel. It may be cited, however, for its 

persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

1

 Because Marshall is proceeding pro se, “we construe his filings liberally.” 

Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010). 

FILED 

United States Court of Appeals 

Tenth Circuit 

December 10, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

the final sentence of the order unfinished. On February 1, 2017, Marshall filed a 

motion for clarification and asked the court to complete the unfinished sentence with 

language directing the Department of Corrections to discharge him if he had served 

forty-five years of his life sentence. 

On February 2, 2017, the court entered an order that incorporated the requested 

language. But on February 10 the court entered an amended order stating “that the 

order filed January 27, 2017 . . . was proper,” ROA at 94, that “the order filed on 

February 2, 2017 was incorrect in its assignment of a forty-five (45) year term,” id., 

and that the February 2 order “should be stricken from the record.” Id. 

After unsuccessfully seeking mandamus relief from the Atoka County District 

Court and the Oklahoma Court of Criminal Appeals, Marshall filed a motion in 

federal district court for habeas review under 28 U.S.C. § 2241. He also asked the 

district court to hold an evidentiary hearing. Marshall believed he was entitled to a 

hearing to prove that the Oklahoma Department of Corrections engaged in ex parte 

communications with the Nowata County judge. The court denied the motion and 

dismissed the petition. 

In this appeal Marshall contends that the district court erred in denying his 

motion for an evidentiary hearing. He also seeks a COA to challenge the district 

court’s dismissal of his petition. As we conclude below, there is “nothing in the 

record [to] indicate[] [Marshall] is entitled to any relief.” Wilson v. Oklahoma, 335 

F. App’x 783, 784 (10th Cir. 2009). Consequently, “the denial of [the evidentiary] 

hearing[] was not error.” Id. 
3 

Additionally, we note that Marshall filed a motion to supplement the appellate 

record with a certified copy of the February 2, 2017 order. The certified copy 

indicates the February 2, 2017 order was filed with the Oklahoma Court of Criminal 

Appeals on February 6, 2017. We GRANT Marshall’s motion to supplement the 

record. We have also considered his supplemental authorities. 

II. 

To obtain appellate review of the district court’s dismissal of his petition, 

Marshall must acquire a COA. To acquire a COA, Marshall must make a “substantial 

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 

Specifically, he must demonstrate “that reasonable jurists would find the district 

court’s assessment of the constitutional claims debatable or wrong.” Slack v. 

McDaniel, 529 U.S. 473, 484 (2000). Marshall has failed to make this showing. 

Below, the district court properly framed the question as whether Marshall has 

established “he is being held in state custody in violation of the United States 

Constitution or other federal law.” Dist. Ct. Op. at 4. The district court then found 

that Marshall’s life sentence is not excessive under federal law.2

 Reasonable jurists 

 2

 On appeal Marshall contends that the district court improperly construed his 

argument. Specifically, he argues that the crux of his position below was that the 

February 10 order is invalid and that the February 2 order is the only valid order. 

The district court likely did not address this argument because Marshall has failed to 

successfully tie it to the denial of a federal right. Marshall contends that the 

Oklahoma state courts’ treatment of these orders denied him substantive and 

procedural due process. But under Oklahoma law, “[d]efendants sentenced to life 

imprisonment . . . remain under that sentence all of their days, and obtain their liberty 

only after a recommendation from the Pardon and Parole Board, and then only 
4 

would not find this conclusion debatable. The United States Supreme Court will 

uphold a sentence that is not grossly disproportionate to the crime. See Ewing v. 

California, 538 U.S. 11, 21–23 (2003). Here, Marshall’s life sentence was not 

grossly disproportionate to his first-degree murder conviction. Cf. 18 U.S.C. 

§§ 1111(a)–(b), 3559(a)(1), 3581(b)(1) (authorizing imposition of a life sentence for 

Class A felonies such as first-degree murder). 

As for the remaining issues Marshall raises in his brief, we need not reach 

them because none of them aids in determining whether the execution of Marshall’s 

sentence violates federal law. See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) 

(“[I]t is not the province of a federal habeas court to reexamine state-court 

determinations on state-law questions. In conducting a habeas review, a federal court 

is limited to deciding whether a conviction violated the Constitution, laws, or treaties 

of the United States.”). For example, reasonable jurists would not debate whether the 

district court properly disregarded Marshall’s access to the courts arguments because 

those are civil rights complaints Marshall can pursue under 42 U.S.C. § 1983. See, 

 

conditionally, under terms dictated by the Governor, if ever.” Anderson v. State, 130 

P.3d 273, 286–87 (Okla. Crim. App. 2006) (Lewis, J., concurring). Additionally, 

“Oklahoma law prohibits the use of earned time credits to reduce a sentence of life 

imprisonment.” Dist. Ct. Op. at 7 (citing Okla. Stat. tit. 57, § 138(A) (“No 

deductions [by application of earned credits] shall be credited to any inmate serving a 

sentence of life imprisonment . . . .”)). Thus, because the February 2 order instructed 

the Oklahoma Department of Corrections to consider Marshall’s earned credits and 

release him if “a term of forty-five (45) years ha[d] been served,” it was incorrect as 

a matter of Oklahoma law. We do not see how the Nowata County judge’s decision 

to correct this erroneous order resulted in a deprivation of due process. Reasonable 

jurists would not find this conclusion to be debatable. 
5 

e.g., Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam) (discussing the 

difference between section 1983 and habeas petitions). 

III. 

Based on the foregoing, we DENY Marshall’s request for a COA and 

DISMISS this appeal. 

Entered for the Court 

Allison H. Eid 

Circuit Judge