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Oliver v. Raemisch, 10th Cir. (2014)
Oliver v. Raemisch, 10th Cir. (2014)
Elisabeth A. Shumaker
Clerk of Court
No. 13-1348
(D.C. No. 1:13-CV-01076-LTB)
(D. Colo.)
RespondentsAppellees.
Petitioner Gregory Wade Oliver, proceeding pro se, seeks to appeal the
denial of his application for habeas corpus relief under 28 U.S.C. 2241 by the
United States District Court for the District of Colorado.
Petitioner is currently serving a mandatory term of parole in relation to a
sentence he received in Colorado state court. In April 2013, Petitioner filed an
application for a writ of habeas corpus under 28 U.S.C. 2241 in the United
States District Court for the District of Colorado. In his application, Petitioner
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
argued that earned-time credits were wrongfully withheld from him during his
incarceration as a result of his refusal to participate in Colorados Sex Offender
Treatment Management Program. Petitioner requested these earned-time credits
be applied to the parole component of his sentence. In ruling on the application,
the district court noted that it was bound by the Colorado Supreme Courts
interpretation of Colorado law, insofar as the Colorado Supreme Courts
interpretation did not violate federal law. See Mullaney v. Wilbur, 421 U.S. 684,
691 (1975); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). The district court
then explained the Colorado Supreme Court has held that earned-time credits do
not count as service of an inmates sentence, see Rather v. Suthers, 973 P.2d
1264, 1266 (Colo. 1999), but rather serve only to establish parole eligibility, see
Jones v. Martinez, 799 P.2d 385, 387-88 (Colo. 1990). Therefore, the district
court concluded that because Petitioner was already on parole, his request for
relief was moot. Accordingly, the district court denied Petitioners application
for habeas corpus. The district court further ordered that no certificate of
appealability would issue because Petitioner failed to make a substantial showing
of the denial of a constitutional right.
While Petitioner did not file an application for a certificate of appealability
with this court, his notice of appeal may be construed as such. See Fed. R. App.
P. 22(b)(2). After thoroughly reviewing the record and Petitioners filings on
appeal, we conclude that reasonable jurists would not debate the district courts
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dismissal of the habeas petition. See Slack v. McDaniel, 529 U.S. 473, 484
(2000).
Therefore, for substantially the same reasons given by the district court, we
DENY Petitioners request for a certificate of appealability and DISMISS the
appeal. However, Petitioners motion to proceed on appeal without prepayment
of costs or fees is GRANTED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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