F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 7 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
MAXWELL GARIHAN,
Petitioner - Appellant, No. 00-1333
v. (D.C. No. 00-Z-773)
ROBERT W. FURLONG; KENNETH (D. Colo.)
SALAZAR, Attorney General of the
State of Colorado; and JOHN
SUTHERS, Ex. Dir. D.O.C.,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, McKAY, and BRORBY, Circuit Judges.
After examining the briefs 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); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
In 1995, Petitioner was convicted of second degree burglary, second degree
assault, and third degree assault following a jury trial in Colorado state court.
*
This order and judgment is not binding precedent, except under the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.
The court subsequently sentenced him to seven years of incarceration followed by
any authorized parole period under Colo. Rev. Stat. § 17-22.5-303. In 1996,
however, a Colorado court reduced Petitioner’s incarceration term to four years
and five months. The amended mittimus did not mention parole. Petitioner
completed his prison sentence on January 28, 1998, but claims that he was not
released for almost four weeks. Upon his release, Petitioner became subject to a
period of mandatory parole. After violating his parole terms, Petitioner was
reincarcerated.
Petitioner, proceeding pro se, filed a writ of habeas corpus pursuant to 28
U.S.C. § 2254 with the Colorado Supreme Court. That court denied his request.
He then filed his habeas petition with the federal district court in Colorado.
Petitioner claims that Colorado has unlawfully incarcerated him because his
amended sentence did not mention a term of parole, so he never should have been
subject to parole, or punished for a parole violation, in the first place; that a
mandatory parole in addition to a prison sentence violates the Double Jeopardy
Clause; and that imposition of parole by the Colorado Department of Corrections
and the State Board of Parole violates the principle of separation of powers. The
district court denied the habeas petition on the merits. Petitioner then requested a
certificate of appealability, as he must under 28 U.S.C. § 2253, for leave to appeal
the district court’s decision. That request was also denied. Petitioner has
-2-
renewed his pursuit of a certificate of appealability with this court.
A court should grant a certificate of appealability “only if the applicant has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). Petitioner could do so by demonstrating that his claims warrant
further proceedings, “subject to a different resolution on appeal,” or are debatable
among reasonable jurists. Montez v. McKinna, 208 F.3d 862, 869 (10th Cir.
2000).
Petitioner has not made the requisite showing on any of his claims. First,
his parole is not unlawful despite the fact that his amended sentence failed to
mention it. Under Colorado law, parole is mandatory for anyone convicted of
certain felonies, see Colo. Rev. Stat. § 18-1-105(1)(a)(V)(A), whether the
sentence or mittimus refers to it or not. See Craig v. People, 986 P.2d 951, 966
(Colo. 1999). Second, Colorado’s sentencing system, which allows imprisonment
followed by mandatory parole in certain circumstances, does not constitute double
jeopardy, nor does it violate separation of powers principles. Indeed, we have
already rejected these arguments in a similar case. See Deyulia v. Suthers, No.
00-1073, 2000 WL 1770049 (10th Cir. Dec. 1, 2000).
For the foregoing reasons, and as more fully explained in the district
court’s July 6, 2000, order and judgment, we DENY Petitioner’s application for a
certificate of appealability and DISMISS the appeal.
-3-
Entered for the Court
Monroe G. McKay
Circuit Judge
-4-