*

 This order and judgment is not binding precedent, except under the

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

JUL 22 2002

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KEVIN CHARLES GWINN,

Petitioner - Appellant, No. 02-1139

v. (D.C. No. 02-Z-306)

TONY REID, Warden, ATTORNEY

GENERAL OF THE STATE OF

COLORADO,

Respondents - Appellees.

(D. Colorado)

ORDER AND JUDGMENT *

Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.

After examining the appellant’s brief 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). The case is,

therefore, ordered submitted without oral argument.
-2-

Kevin Charles Gwinn, a state prisoner proceeding pro se, requests a

certificate of appealability (“COA”) in order to appeal the denial of his 28 U.S.C.

§ 2254 habeas corpus petition. Because he fails to make a substantial showing of

the denial of a constitutional right, we deny his request for a COA.

I. Background

Mr. Gwinn pleaded guilty to drug possession charges on January 1, 1997

and was sentenced to three years of probation. He was also given a three-year

term of post-sentence “mandatory parole” as required by statute in Colorado. In

April 1998, Mr. Gwinn’s probation was revoked, the result being that he was

required to finish serving his three-year sentence in prison. Mr. Gwinn, given

credit for the portion of his sentence served prior to April 1998, served the

remainder of his sentence. He was subsequently released on mandatory parole. 

While on his conditional release Mr. Gwinn failed a urinalysis test. As a

result, he was re-incarcerated under the terms of Colorado’s mandatory parole

scheme. After having served two of his three years of mandatory parole, Mr.

Gwinn filed this petition challenging the constitutionality of his re-incarceration. 

The district court denied Mr. Gwinn’s request and subsequently denied him a

COA, and Mr. Gwinn now seeks to appeal those decisions.
-3-

II. Analysis

As an initial matter we note that although both Mr. Gwinn and the district

court treated his habeas corpus petition as a § 2254 petition, because Mr. Gwinn

is challenging the implementation of his sentence rather than the validity of the

underlying conviction, his petition is properly characterized as a 28 U.S.C. § 2241

petition. See Montez v. McKinna , 208 F.3d 862, 865 (10th Cir. 2000) . In order

for Mr. Gwinn, a state prisoner, to appeal the denial of a § 2241 petition, he must

obtain a COA. See id. at 868-69. To be entitled to a COA, Mr. Gwinn must make

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

2253(c)(2). He may make this showing by demonstrating that the issues he raises

are debatable among jurists, that a court could resolve the issues differently, or

that the questions presented deserve further proceedings. See Slack v. McDaniel,

529 U.S. 473, 483-84 (2000). 

Because Mr. Gwinn is representing himself on appeal, his pleadings are

construed liberally. See Haines v. Kerner , 404 U.S. 519, 520 (1972) (per curiam). 

Nevertheless, this panel will not act as Mr. Gwinn’s advocate by raising

arguments not included in his request for a COA. Cf. Hall v. Bellmon , 935 F.2d

1106, 1110 (10th Cir. 1991) (noting that a pro se inmate retains “burden of

alleging sufficient facts on which a recognized legal claim could be based”).
-4-

In his request for a COA, Mr. Gwinn asserts a denial of due process and

equal protection, violation of separation of powers, and violation of his plea

agreement. Most of these issues are raised without clear connection to his

situation. The core of Mr. Gwinn’s argument, however, is ascertainable. He

essentially argues that his present incarceration is unconstitutional because his

plea agreement limits the total possible term of his incarceration to three

years—the maximum sentence actually imposed by the trial court—regardless of

Colorado’s post-sentence mandatory parole scheme. Mr. Gwinn suggests that

because he is now being required to serve up to an additional three years’

incarceration under the revocation of his post-sentence mandatory parole, his

continued incarceration violates his plea agreement. 

Mr. Gwinn admits he agreed to a sentence of three years of probation with

the Department of Corrections to be followed by another three years of mandatory

parole upon his completion of the initial three year term. He nevertheless asserts

two bases for challenging his re-incarceration, neither of which has merit.

First, Mr. Gwinn contends that “Mandatory Parole was meant to be served

outside a prison . . . [and re-incarceration for violation of parole can] only [be]

for a short period of 180 days or less.” Aplt’s Br. at 3. Although re-incarceration

is limited to 180 days when the parolee is sent to a “community corrections

program,” see Colo. Rev. Stat. § 17-2-103(11)(b)(II)(B) (1998), a parolee may
1

 “Mandatory parole,” in being imposed by a judge at sentencing rather than

by prison officials or other members of the executive branch of government after

an inmate’s incarceration has begun, looks more like traditional probation than

true parole. Regardless, violation of the terms of parole, probation, or Colorado’s

(continued...)

-5-

also be re-incarcerated in a prison for a length up to the full term of the

mandatory parole period. See id. at § 17-2-103(11)(b)(II)(A); Martin v. Colorado ,

27 P.3d 846, 858 (Colo. 2001) (“This new period of confinement is limited only

by the [parole] board’s statutory authority, and is not related to the offender’s

original sentence to incarceration.”). Therefore, Mr. Gwinn’s argument on this

point fails.

Second, Mr. Gwinn argues that the word “parole” means “release” and

therefore that the phrase “mandatory parole” refers to where the parole is to be

served—i.e., that it is mandatory that he serve parole outside of incarceration. 

This argument, while imaginative, lacks support and misconstrues the nature of

parole. Someone convicted of a crime who is paroled is conditionally released

from incarceration prior to the completion of his or her sentence. See 59 Am. Jur.

2d Pardon and Parole § 6 (1987). Violation of the terms of parole can result in

the person’s re-incarceration. See Colo. Rev. Stat. § 17-2-103(11)(b)(I).

Mandatory parole is a system of conditional release mandated by the

Colorado legislature that all criminals convicted of class two through six felonies

must serve. 1 See Colo. Rev. Stat. § 18-1-105(1)(a)(V)(A) (1998). “[E]ven a
1

(...continued)

mandatory parole can lead to the re-incarceration of the parolee/probationer.

-6-

prisoner who serves every single day of his or her prison sentence must remain

subject to the conditions of parole for the additional mandatory period.” Craig v.

Colorado , 986 P.2d 951, 958 n.3 (Colo. 1999). Thus, violation of the terms of

mandatory parole may require that a person be re-incarcerated, even though this

results in the parolee being confined after completion of his or her initial

sentence. As implicitly acknowledged by the Colorado Supreme Court in Craig ,

mandatory parole does not mandate that a parolee serve the entire mandatory

period outside of incarceration; rather, mandatory parole requires that a parolee’s

release after completing his or her initial sentence be conditional.

Because Mr. Gwinn’s arguments on the topic of mandatory parole are

without merit, and because he provides no other basis for asserting a due process,

equal protection, or other constitutional claim, his request fails to make a

substantial showing of the denial of a constitutional right. Therefore, this panel

must deny a COA. See 28 U.S.C. § 2253(c)(2).

In his request for a COA Mr. Gwinn cites 28 U.S.C. § 1915(e) in requesting

that the court appoint counsel. Section 1915(e) gives the court discretion to

appoint counsel to represent indigent petitioners; however, since Mr. Gwinn did

not file a request to proceed in forma pauperis and because his arguments are
-7-

without merit, we deny his request for appointed counsel. We also deny Mr.

Gwinn’s motion for “release pending review.”

III. Conclusion

For the aforementioned reasons, we DENY a COA, DENY Mr. Gwinn’s

other motions, and DISMISS the appeal.

Entered for the Court,

Robert H. Henry

Circuit Judge