Morello v. Utah Board of Pardons

F I L E D United States Court of Appeals Tenth Circuit September 5, 2006 UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court R ON A LD M O RELLO , Petitioner - A ppellant, No. 06-4044 v. (D.C. No. 2:03-CV-681-DAK) (D. Utah) UTA H BO ARD OF PARD ONS, Respondent - Appellee. OR DER DENYING A CERTIFICATE OF APPEALABILITY Before KELLY, M cKA Y, and LUCERO, Circuit Judges. Ronald M orello, a state prisoner proceeding pro se, requests a certificate of appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2241 habeas petition. For substantially the same reasons set forth by the district court we D EN Y a COA and DISM ISS. This is M orello’s fourth habeas petition. His first two were dismissed without prejudice for failing to exhaust state remedies. The district court denied his third petition as time-barred and we affirmed. M orello v. Utah, 10 F. App’x 788 (10th Cir. 2001) (unpublished opinion). M orello presented two arguments to the district court in his latest petition: (1) that his due process rights were violated by a 1995 parole decision of the Utah Board of Pardons; and (2) that his 1983 guilty plea was involuntary because it was based on the false assurances of his attorney. The district court dismissed the parole issue because it did not implicate a federal right, and transferred the plea issue to this court as successive. W e denied authorization to file a successive petition regarding M orello’s guilty plea and dismissed. M orello now seeks a C OA to appeal the district court’s dismissal of the parole claim. 1 A COA may be issued “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This requires M orello to show “that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). To present a cognizable due process claim, M orello must show that he possessed a liberty interest in parole. See M alek v. Haun, 26 F.3d 1013, 1015 1 M orello’s petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”); as a result, AEDPA's provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1 (10th Cir. 1999) (citing Lindh v. M urphy, 521 U.S. 320 (1997)). AED PA conditions a petitioner's right to appeal a denial of habeas relief under § 2241 upon a grant of a CO A. 28 U.S.C. § 2253(c)(1)(A); M ontez v. M cKinna, 208 F.3d 862, 867 (10th Cir. 2000) (holding that § 2253(c)(1)(A ) requires a state prisoner to obtain a COA regardless of whether he is seeking relief under § 2254 or under § 2241). M orello may not appeal the district court’s decision absent a grant of a COA by this court. -2- (10th Cir. 1994). A liberty interest in parole arises only when a person has “a legitimate claim of entitlement to it.” Id. W e held in M alek that the Utah parole statute does not create a liberty interest protected by the Due Process Clause of the Fourteenth Amendment. Id. at 1015-16. Accordingly, M orello has not presented a ground for habeas corpus relief. M orello seeks leave to proceed in forma pauperis on this appeal. Because he was granted permission to proceed in forma pauperis by the district court, his status continues on appeal and his request is moot. For the reasons stated above, M orello’s request for a COA is DENIED and his appeal is DISM ISSED. ENTERED FOR THE COURT Carlos F. Lucero Circuit Judge -3-