* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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 

### 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 notmaterially 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 ora l 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.-2-

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 inca rceration term to four years and five months. The amended mittimus did not ment ion 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 pa role terms, Petitioner was reincarcerated. Petitioner, proceeding pro se, filed a writ of habe as 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 inca rcerated 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 violati on, in the first place; that a mandatory parole in addition to a prison sentence v iolates the Double Jeopardy Clause; and that imposition of parole by the Colora do Department of Corrections and the State Board of Parole violates the principl e of separation of powers. The district court denied the habeas petition on the me rits. 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 al so denied. Petitioner has-3-

renewed his pursuit of a certificate of appealabili ty 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 const itutional right.” 28 U.S.C. § 2253(c)(2). Petitioner could do so by demonstrat ing that his claims warrant further proceedings, “subject to a different resolu tion 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 hi s 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 t he 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 circumstanc es, 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 explai ned 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.-4- Entered for the Court

Monroe G. McKay Circuit Judge