FILED

United States Court of Appeals

Tenth Circuit

August 27, 2013

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

WAHID ASH-SHAHID, f/k/a James

Nance,

Petitioner - Appellant,

v.

RAY ROBERTS, Secretary of

Corrections,

Respondent - Appellee.

No. 13-3141

(D.C. No. 5:13-CV-03065-SAC)

(D. Kansas)

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.

Applicant Wahid Ash-Shahid, a Kansas state prisoner, applied for relief

under 28 U.S.C. § 2241 in the United States District Court for the District of

Kansas. The district court denied the application. Applicant now seeks a

certificate of appealability (COA) from this court so that he may appeal the

district court’s decision. See Montez v. McKinna, 208 F.3d 862, 868–69 (10th

Cir. 2000) (requiring a COA to appeal dismissal of habeas application brought by

state prisoner under 28 U.S.C. § 2241). We deny a COA and dismiss the appeal.

Applicant is serving consecutive sentences for several state felonies. After

15 years, he became eligible for parole on his first sentence. He filed suit in state
court, alleging that once he became eligible for parole on his first sentence,

Kansas law required that the first sentence be terminated and that his remaining

prison term count exclusively toward his second sentence. The state trial court

denied the claim, the Kansas Court of Appeals affirmed, and the Kansas Supreme

Court denied Applicant’s petition for review. On April 9, 2013, Applicant filed a

§ 2241 application alleging that once he became eligible for parole on his first

sentence, Kansas law required that the first sentence be terminated and his

remaining prison term count toward his second sentence. The district court

ordered that Applicant show cause why his application should not be denied for

failure to present a federal claim. See 28 U.S.C. § 2241(c)(3) (“The writ of

habeas corpus shall not extend to a prisoner unless . . . [h]e is in custody in

violation of the Constitution or laws or treaties of the United States.”). Applicant

responded that the Kansas Department of Correction’s failure to terminate his

first sentence was improper under Kansas statutes and case law. The district

court dismissed the application.

We construe Applicant’s request for a COA liberally because he proceeds

pro se. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). A COA

will issue “only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a

demonstration that . . . includes showing that reasonable jurists could debate

whether (or, for that matter, agree that) the petition should have been resolved in

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a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(internal quotation marks omitted). In other words, the applicant must show that

the district court’s resolution of the constitutional claim was either “debatable or

wrong.” Id.

Reasonable jurists would not debate the district court’s dismissal of the

application. It is well-settled that errors of state law do not merit federal habeas

relief. See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). The district court

correctly determined that Applicant had not alleged that he was “in custody in

violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.

§ 2241(c)(3). His application vaguely stated that the failure to terminate his first

sentence violated his right to due process. But the essence of his ground for relief

was the violation of state law, and his response to the order to show cause was

based exclusively on state statutes and cases.

We DENY a COA and DISMISS the appeal. Applicant’s motion to proceed

in forma pauperis is GRANTED.

ENTERED FOR THE COURT

Harris L Hartz

Circuit Judge

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