* This order and judgment is not binding precedent, except under the

doctrines of res judicata, collateral estoppel, andlaw of the case. 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 

### 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 appel late record, this panel has determined unanimously that oral argument wouldnot 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 pr o se, requests a certificate of appealability (“COA”) in order to ap peal 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 r equest 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 require d 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 Gwinn’s probation was revoked, the result being that he was required to finish serving his three-year sentence in prison.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 priorto April 1998, served the remainder of his sentence. He was subsequently rel eased on mandatory parole. While on his conditional release Mr. Gwinn failed aurinalysis test. As a result, he was re-incarcerated under the terms of C olorado’s mandatory parole scheme. After having served two of his three years of mandatory parole, Mr. Gwinn filed this petition challenging the constitut ionality of his re-incarceration. The district court denied Mr. Gwinn’s request and s ubsequently denied him a COA, and Mr. Gwinn now seeks to appeal those decisi ons.-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 § 225 4 petition, because Mr. Gwinn is challenging the implementation of his sentence r ather 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 deni al 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 constitut ional right.” 28 U.S.C. § 2253(c)(2). He may make this showing by demonstrat ing that the issues he raises are debatable among jurists, that a court could res olve the issues differently, or that the questions presented deserve further procee dings. SeeSlack 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 i nmate retains “burden of alleging sufficient facts on which a recognized leg al claim could be based”).-4-

In his request for a COA, Mr. Gwinn asserts a denia l of due process and equal protection, violation of separation of powers , and violation of his plea agreement. Most of these issues are raised withoutclear connection to his situation. The core of Mr. Gwinn’s argument, howev er, is ascertainable. He essentially argues that his present incarceration i s unconstitutional because his plea agreement limits the total possible term of hi s 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-sent ence mandatory parole, his continued incarceration violates his plea agreement

. Mr. Gwinn admits he agreed to a sentence of three y ears of probation with the Department of Corrections to be followed by ano ther three years of mandatory parole upon his completion of the initial three year term. He nevertheless asserts two bases for challenging his re-incarceration, nei ther of which has merit. First, Mr. Gwinn contends that “Mandatory Parole wa s meant to be served outside a prison . . . [and re-incarceration for vi olation 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 may1 “Mandatory parole,” in being imposed by a judge atsentencing rather than

by prison officials or other members of the executi ve branch of government after an inmate’s incarceration has begun, looks more lik e 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 par ole outside of incarceration. This argument, while imaginative, lacks support andmisconstrues 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 o f class two through six felonies
must serve. 1 See Colo. Rev. Stat. § 18-1-105(1)(a)(V)(A) (1998). “ [E]ven a1 (...continued)

mandatory parole can lead to the re-incarceration o f 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, violat ion of the terms of mandatory parole may require that a person be re-in carcerated, even though this results in the parolee being confined after complet ion of his or her initial sentence. As implicitly acknowledged by the Colorado Supreme Court in Craig , mandatory parole does not mandate that a parolee se rve the entire mandatory period outside of incarceration; rather, mandatory parole requires that a parolee’s release after completing his or her initial sentenc e be conditional. Because Mr. Gwinn’s arguments on the topic of mandatory parole are without merit, and because he provides no other bas is for asserting a due process, equal protection, or other constitutional claim, hi s request fails to make a substantial showing of the denial of a constitution al 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) gi ves 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 d eny Mr. Gwinn’s motion for “release pending review.” III. Conclusion For the aforementioned reasons, we DENY a COA, DENYMr. Gwinn’s other motions, and DISMISS the appeal. Entered for the Court,

Robert H. Henry Circuit Judge