*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

JUN 7 2001

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MAXWELL GARIHAN,

Petitioner - Appellant, No. 00-1333

v. (D.C. No. 00-Z-773)

ROBERT W. FURLONG; KENNETH

SALAZAR, Attorney General of the

State of Colorado; and JOHN

SUTHERS, Ex. Dir. D.O.C., 

(D. Colo.)

Respondents - Appellees.

 

ORDER AND JUDGMENT*

Before SEYMOUR, McKAY, and BRORBY, Circuit Judges.

After examining the briefs and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). 

The case is therefore ordered submitted without oral argument.

In 1995, Petitioner was convicted of second degree burglary, second degree

assault, and third degree assault following a jury trial in Colorado state court. 
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The court subsequently sentenced him to seven years of incarceration followed by

any authorized parole period under Colo. Rev. Stat. § 17-22.5-303. In 1996,

however, a Colorado court reduced Petitioner’s incarceration term to four years

and five months. The amended mittimus did not mention parole. Petitioner

completed his prison sentence on January 28, 1998, but claims that he was not

released for almost four weeks. Upon his release, Petitioner became subject to a

period of mandatory parole. After violating his parole terms, Petitioner was

reincarcerated.

Petitioner, proceeding pro se, filed a writ of habeas corpus pursuant to 28

U.S.C. § 2254 with the Colorado Supreme Court. That court denied his request. 

He then filed his habeas petition with the federal district court in Colorado. 

Petitioner claims that Colorado has unlawfully incarcerated him because his

amended sentence did not mention a term of parole, so he never should have been

subject to parole, or punished for a parole violation, in the first place; that a

mandatory parole in addition to a prison sentence violates the Double Jeopardy

Clause; and that imposition of parole by the Colorado Department of Corrections

and the State Board of Parole violates the principle of separation of powers. The

district court denied the habeas petition on the merits. Petitioner then requested a

certificate of appealability, as he must under 28 U.S.C. § 2253, for leave to appeal

the district court’s decision. That request was also denied. Petitioner has
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renewed his pursuit of a certificate of appealability with this court.

A court should grant a certificate of appealability “only if the applicant has

made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). Petitioner could do so by demonstrating that his claims warrant

further proceedings, “subject to a different resolution on appeal,” or are debatable

among reasonable jurists. Montez v. McKinna, 208 F.3d 862, 869 (10th Cir.

2000).

Petitioner has not made the requisite showing on any of his claims. First,

his parole is not unlawful despite the fact that his amended sentence failed to

mention it. Under Colorado law, parole is mandatory for anyone convicted of

certain felonies, see Colo. Rev. Stat. § 18-1-105(1)(a)(V)(A), whether the

sentence or mittimus refers to it or not. See Craig v. People, 986 P.2d 951, 966

(Colo. 1999). Second, Colorado’s sentencing system, which allows imprisonment

followed by mandatory parole in certain circumstances, does not constitute double

jeopardy, nor does it violate separation of powers principles. Indeed, we have

already rejected these arguments in a similar case. See Deyulia v. Suthers, No.

00-1073, 2000 WL 1770049 (10th Cir. Dec. 1, 2000). 

For the foregoing reasons, and as more fully explained in the district

court’s July 6, 2000, order and judgment, we DENY Petitioner’s application for a

certificate of appealability and DISMISS the appeal. 
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Entered for the Court

Monroe G. McKay

Circuit Judge