F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 2 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MIKEL TRUMBLY,
Petitioner-Appellant,
v. No. 00-3083
(D.C. No. CV-96-3541-RDR)
KANSAS PAROLE BOARD; (D. Kan.)
ATTORNEY GENERAL OF
KANSAS,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before BRISCOE , ANDERSON , and MURPHY , Circuit Judges.
After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. 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.
Petitioner seeks a certificate of appealability (COA) in order to appeal the
denial of his habeas corpus action brought pursuant to 28 U.S.C. § 2254. We note
at the outset that because this action did not challenge the validity of his
conviction or sentence, but rather its execution (specifically the allegedly
unconstitutional denial of parole), the matter should have been characterized as
one brought pursuant to 28 U.S.C. § 2241. See Montez v. McKinna , 208 F.3d
862, 865 (10th Cir. 2000). Petitioner needs a COA in either case. See id. at 869.
Only if he has made the substantial showing that he has been denied a
constitutional right is he entitled to a COA. See 28 U.S.C. § 2253(c)(2). This
showing can be made if petitioner demonstrates that the issues are debatable
among jurists, that a court could resolve the issues differently, or that the
questions presented deserve further proceedings. See Slack v. McDaniel , 120
S. Ct. 1595, 1603-04 (2000). We have jurisdiction under 28 U.S.C. § 1291, and
we review the district court’s legal conclusions de novo. See Patterson v.
Knowles , 162 F.3d 574, 575 (10th Cir. 1998).
Petitioner is serving two sentences of life imprisonment for first degree
murder, for which he has been incarcerated since 1979. He was first considered
for parole in 1994, at which point he was passed to 1997. He appealed that
decision to the Kansas Parole Board, after which he pursued habeas corpus relief
in the state courts before commencing this action.
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The issues he raises on appeal are the same as those presented to the
district court. He claims that based on the Kansas statutes in effect at the time of
his incarceration, he has a protected liberty interest in parole based on his
completion of the Inmate Program Agreement; that he also has a protected liberty
interest in parole because the Kansas statutes in effect at the time of the offense
contained mandatory language and limited the discretion of the parole board; the
failure of the parole board to consider him for parole under the provisions in
effect at the time of his offense violated ex post facto principles; and the parole
board failed to provide both sufficient reasons for denying him parole and an
impartial forum.
There is no constitutional right to conditional release prior to the expiration
of a valid sentence. See Greenholtz v. Inmates of Neb. Penal & Corr. Complex ,
442 U.S. 1, 7 (1979). Nonetheless, a state may create a liberty interest by using
mandatory language in a statute which restricts the parole authority’s discretion or
creates a presumption of release. See id. at 11-12.
The inmate agreement petitioner signed states that the inmate understands
that his parole release is “ in part , contingent upon [his] satisfactory completion of
[certain] programs.” R. doc. 2, ex. A. (Emphasis added.) Nothing in the
agreement mandates an inmate’s release upon the successful completion of
programs. Rather, the agreement merely extends the possibility of parole. See
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Greenholtz , 442 U.S. at 11. Moreover, the clear language of the agreement does
not constitute a promise of parole upon completion of the program agreement.
Payne v. Kan. Parole Bd. , 887 P.2d 147, 151 (Kan. Ct. App. 1994). Likewise, the
statute establishing the program agreement program, Kan. Stat. Ann. § 75-5210a,
does not confer a liberty interest in parole.
Petitioner also claims that he has a liberty interest in parole based on Kan.
Stat. Ann. § 22-3717 (1978), which directed the Kansas Adult Authority
(predecessor of the present Kansas Parole Board) to consider all pertinent
information regarding the inmate and his offense and provided that the authority
had the power to release inmates who were eligible when there was a reasonable
probability that such inmates would not be a detriment to the community, but with
the caveat that parole shall only be ordered in the best interest of the inmate.
Contrary to petitioner’s arguments, this language is in no way similar to the
Montana statute determined to have created a liberty interest which provided that
subject to certain restrictions, the parole board shall release or parole confined
persons when there is a reasonable probability the prisoner can be released
without detriment to the prisoner or the community. See Bd. of Pardons v. Allen ,
482 U.S. 369, 376 (1987) (quotations omitted). The requirement that the paroling
authority shall consider all pertinent information does not equate to the “shall
release . . . when” requirement of Allen or the “shall order . . . release unless”
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language of Greenholtz . See Greenholtz , 442 U.S. at 11. Rather, “the Kansas
statute merely empowers the Board to place one on parole when the Board, in the
exercise of its discretion, believes that the interests of the prisoner and the
community will be served by such action.” Gilmore v. Kan. Parole Bd. , 756 P.2d
410, 414 (Kan. 1988). And, petitioner’s arguments notwithstanding, the Kansas
Supreme Court’s interpretation of its own statutes is binding on this court “absent
some conflict with federal law or overriding federal interest.” Sac & Fox Nation
v. Pierce , 213 F.3d 566, 577 (10th Cir. 2000).
Petitioner next claims that the Kansas Parole Board violated the
constitutional prohibition against ex post facto laws by failing to consider his
parole application under the laws in effect at the time of his offense and prior to
the 1988 amendment to Kan. Stat. Ann. § 22-3717(4) (1978), which in pertinent
part read:
[a] parole shall be ordered only for the best interest of the inmate and
not as an award of clemency. Parole shall not be considered a
reduction of sentence or a pardon. An inmate shall be placed on
parole only when the authority believes that the inmate is able and
willing to fulfill the obligations of a law-abiding citizen. . . .
R. doc 2, ex. C.
In petitioner’s case, the Kansas Court of Appeals held that because he was
not eligible for parole until 1994, his initial parole hearing was governed by the
1988 amendment, which allowed release on parole of those eligible when the
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board believes the inmate is able and willing to fulfill the obligations of a law
abiding citizen. See R. doc 6, attach. B(2) (Kansas Court of Appeals
Memorandum Opinion of Sept. 1, 1995) at 3. The state court of appeals
determined that petitioner was in no way disadvantaged by the application of the
1988 version of the statute. See id. at 3-4. Moreover, even assuming the
applicability of the 1978 version of the statute, there was no liberty interest in
parole created under that version either. Bookless v. McKune , 926 P.2d 661,
663-64 (Kan. Ct. App. 1996).
Parole is a matter of grace under Kansas law, and parole decisions lie
within the discretion of the paroling authority. See Lamb v. Kan. Parole Bd. , 812
P.2d 761, 763 (Kan. Ct. App. 1991). Because petitioner cannot demonstrate how
he was disadvantaged by the application of the 1988 amendment, his ex post facto
argument must fail. As the Kansas Court of Appeals noted, “[t]here being no
liberty interest in parole, it cannot be argued that the denial of parole, whenever it
is done or under whatever statue involved, disadvantages a prisoner.” R. doc. 6,
attach. B(2) (Kansas Court of Appeals Memorandum Opinion) at 4.
Finally, petitioner claims that the reasons given for denying his parole
application are constitutionally inadequate and that he was denied an impartial
hearing because the Board failed to grant his parole. The reasons given for the
parole denial were “Pass reasons: serious nature and circumstances of crime;
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violent nature of crime; objections regarding parole.” R. Doc. 6, attach. C. The
reasons given were sufficiently specific to comply with the requirements of Kan.
Stat. Ann. § 22-3717(k) (requiring that “if the board determines that other
pertinent information regarding the inmate warrants the inmate’s not being
released on parole, the board shall state in writing the reasons for not granting the
parole”). See also Payne , 887 P.2d at 152. Petitioner’s argument that he was
denied a fair and impartial hearing is without legal merit; he does not allege any
improper procedure used by the board, nor does he claim any arbitrary or
capricious action directed specifically at him.
Petitioner has failed to make the required showing of the denial of a
constitutional right. Accordingly, the certificate of appealability is DENIED, and
the appeal is DISMISSED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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