United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 4, 2001 Decided January 25, 2002
No. 00-5226
Ronald Lee Madley,
Appellant
v.
United States Parole Commission,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 00cv00918)
A. J. Kramer, Federal Public Defender, appointed by the
court, argued the cause and filed the briefs as amicus curiae
for appellant.
Ronald L. Madley, appearing pro se, was on the brief for
appellant.
David B. Goodhand, Assistant U.S. Attorney, argued the
cause and filed the brief for appellee. With him on the brief
were Kenneth L. Wainstein, U.S. Attorney, John R. Fisher
and Robert D. Okun, Assistant U.S. Attorneys.
Before: Ginsburg, Chief Judge, Edwards and Sentelle,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge: Ronald Lee Madley was convict-
ed and sentenced to prison by the Superior Court of the
District of Columbia, later released on parole, and then had
his parole revoked. After serving an additional year of his
sentence, Madley had a reparole hearing at which reparole
was denied. Madley then made a pro se petition for a writ of
habeas corpus to the United States District Court for the
District of Columbia, naming the United States Parole Com-
mission as respondent and complaining of alleged abuse of
discretion and denial of procedural due process in the Com-
mission's reparole decision. The district court filed the peti-
tion April 27, 2000 and on the same day filed a memorandum
order dismissing the petition without requiring a response, on
the grounds that Mr. Madley had no constitutionally protect-
ed liberty interest in parole and therefore had not been
deprived of a constitutional right. Memorandum and Dis-
missal Order, Madley v. U.S. Parole Commission, No.
CV00918 (D.D.C. Apr. 27, 2000). Madley made a timely
motion under Rule 60 which the district court denied. Fed.
R. Civ. P. 60. Order Denying Reconsideration, Madley v.
U.S. Parole Commission, No. CV00918 (D.D.C. May 31,
2000). Madley filed a timely notice of appeal. He made no
apparent effort to obtain a certificate of appealability ("COA"
hereafter), and the district court made no apparent effort to
grant or deny one. See generally 28 U.S.C. s 2253(c); Fed.
R. App. P. 22(b). To assist us with the issues presented, we
appointed amicus to make arguments on behalf of appellant
Madley. We now dismiss his appeal on the grounds that we
have no jurisdiction, for the reasons that follow.
In general, a district court disposition of a writ of habeas
corpus is subject to review in the applicable circuit court of
appeals, 28 U.S.C. s 2253(a), with two exceptions or limita-
tions. First, and not in issue here, there is no appeal when
the district court decision relates to certain removal proceed-
ings. 28 U.S.C. s 2253(b). Second, and in issue here, there
is no appeal when "the detention complained of arises out of
process issued by a State court," 28 U.S.C. s 2253(c)(1)(A),
unless a "circuit justice or judge issues a certificate," 28
U.S.C. s 2253(c)(1), that the "applicant has made a substan-
tial showing of the denial of a constitutional right," 28 U.S.C.
s 2253(c)(2), and that identifies the "specific issue or issues
[that] satisfy the showing required." 28 U.S.C. s 2253(c)(3).
(The same certificate threshold applies to appeals in 28
U.S.C. s 2255 proceedings, 28 U.S.C. s 2253(c)(1)(B), not at
issue here.)
We have previously addressed the present incarnation of
section 2253, United States v. Johnson, 254 F.3d 279, 287 &
n.11 (D.C. Cir. 2001), but not the specific question whether a
court of the District is a section 2253(c) "State court" for
purposes of that act. As the question affects our power to
consider this appeal, 28 U.S.C. s 2253(c)(1), we must consider
it before the merits of the appeal. See Steel Company v.
Citizens for a Better Environment, 523 U.S. 83, 93-95 (1998).
The answer is not as immediately obvious as might be
thought. The federal seat of government is constitutionally
different from the states, but Congress has created a trial
and appellate court system of general jurisdiction for the
District separate from the United States courts (of which we
are a part) and intended to serve the District in much the
same manner as the court systems of the various states and
other large municipal entities. See District of Columbia
Court Reorganization Act of 1970, Pub. L. No. 91-358, title I,
s 111, 84 Stat. 473, 475-521 (codified at D.C. Code s 11-101
et seq.) (creating current system); Palmore v. U.S., 411 U.S.
389, 392 n.2 (1973) ("invested ... with jurisdiction equivalent
to that exercised by state courts"). Beginning with the same
enactment, Congress has specified that the courts of the
District would be deemed state courts for certain purposes,
28 U.S.C. ss 1257 (certiorari), 1451 (removal), 2113 (other
Supreme Court review under chapter 133), or that laws
limited in effect to the District would be deemed not federal
laws for certain purposes, 28 U.S.C. s 1366 (chapter 85
district court jurisdiction), or that the District itself would be
deemed a state for certain purposes. 28 U.S.C. ss 1332
(diversity jurisdiction), 1367 (supplemental jurisdiction).
There is no such statutory provision relating to section
2253(c). See generally 28 U.S.C. ss 2241-2255.
We have nevertheless concluded from precedent that a
court of the District is a state court for purposes of section
2253(c). The present version of that section originated by
amendment in the Antiterrorism and Effective Death Penalty
Act of 1996, Pub. L. No. 104-132, s 102, 110 Stat. 1214, 1217-
18 (amending 28 U.S.C. s 2253). Prior to that amendment,
the third paragraph of section 2253 had since its enactment in
1948 required a certificate, not of appealability but of proba-
ble cause ("CPC" hereafter) by the following language:
An appeal may not be taken to the court of appeals
from the final order in a habeas corpus proceeding where
the detention complained of arises out of process issued
by a State court, unless the justice or judge who ren-
dered the order or a circuit justice or judge issues a
certificate of probable cause.
Act revising, codifying, and reenacting title 28 United States
Code, c. 646, 62 Stat. 869, 967 (June 25, 1948) (codified at 28
U.S.C. s 2253). The requirements for that section 2253 CPC
were not specified by statute, as are the requirements for the
current 2253(c) COA, but the language "the detention com-
plained of arises out of process issued by a State court" came
forward unchanged. In the 1986 decision Garris v. Lindsay,
we had interpreted the 1948 language in light of the 1970
creation of the current court system of the District as requir-
ing a prisoner convicted by Superior Court of the District to
obtain a CPC, and, denying him one, dismissed his appeal.
794 F.2d 722, 724 n.8, 727 (D.C. Cir. 1986). Congress's 1996
amendment to section 2253 left that interpreted language
unchanged and made no effort to disapprove Garris. Cf.
Lorillard v. Pons, 434 U.S. 575, 580 (1978) (Congress pre-
sumed to adopt existing judicial interpretations of a statute
when it re-enacts without change). Accordingly, Garris re-
mains persuasive, if not controlling, and we conclude that a
court of the District is a state court for the purpose of this
statute.
Our next question is to identify the detention of which
Madley complains and to determine whether or not that
detention "arises out of process issued by a" court of the
District. The first of those steps is easily surmounted. Mad-
ley's petition is clear that the detention of which he complains
is his continued detention following what he regards as a
seriously flawed reparole hearing. His petition raises no
complaint about his original conviction or his original loss of
parole status. This alone, however, does not answer the
question whether that detention "arises out of" state process
or, as Madley argues, out of a parole board decision. Al-
though we and a prior appellant appear to have assumed on a
prior occasion that the closely analogous CPC requirement
under the prior version of section 2253 applied to the appeal
of a Virginia state prisoner complaining of loss of good-time
service credits, Crowell v. Walsh, 151 F.3d 1050 (D.C. Cir.
1998), we have not decided the precise question. Our sister
circuits are divided on the point. In Walker v. O'Brien, the
Seventh Circuit declared, without analysis, that when the
immediate cause of a prisoner's detention is "a prison disci-
plinary proceeding, the resulting detention does not arise out
of process issued by a state court." 216 F.3d at 637. Be-
cause the source of the petitioner's detention was the decision
of an administrative board, rather than the petitioner's con-
viction in state court, the petitioner did not need to obtain a
COA. See id. at 637-38. In Coady v. Vaughn, on the other
hand, the Third Circuit held that a prisoner's original convic-
tion in state court, rather than the unfavorable decision of the
parole board, was the cause of his detention for purposes of
section 2253(c)(1)(A). See 251 F.3d 480, 486 (3d Cir. 2001).
Accordingly, the court ruled that a prisoner convicted in state
court must obtain a COA to appeal from denial of habeas,
even when the prisoner's petition challenges a parole board's
refusal to reduce the duration of his confinement. See id.;
accord Montez v. McKinna, 208 F.3d 862, 866-69 (10th Cir.
2000); Greene v. Tennessee Dep't of Corrs., 265 F.3d 369,
371-72 (6th Cir. 2001); see also Walker, 216 F.3d at 642-44
(Easterbrook, J., dissenting from denial of rehearing en
banc).
We are persuaded that the better interpretation of the
statutory phrase "the detention complained of arises out of
process issued by a State court" is that the language requires
a COA when the prisoner's detention originated in state court
process, even if a later decision of a parole board to deny
parole or reparole is the more immediate cause of the prison-
er's continuing detention, and of which more immediate cause
the prisoner complains. The continuing detention "arises out
of" the earlier process because the parole board would have
no occasion to consider parole at all, and the prisoner to
complain thereof, had the prisoner not been convicted in the
first instance and had the prisoner fully served his sentence
in the second. Accordingly, as we already have determined
above that the courts of the District are state courts for
purposes of this statute, a prisoner arrested or convicted
pursuant to process or judgment of the courts of the District
must obtain a COA by making "a substantial showing of the
denial of a constitutional right." 28 U.S.C. s 2253(c)(2).
Our interpretation of this threshold for appellate review
does not deny such prisoners as Madley the remedy of a writ
of habeas corpus entirely; it has no effect on district court
jurisdiction, only our own. Under our interpretation, a pris-
oner convicted in a state court may obtain appellate review of
a decision denying habeas only when the prisoner offers "a
substantial showing of the denial of a constitutional right," 28
U.S.C. s 2253(c)(1)(A), regardless of whether the prisoner
challenges his sentence or challenges a later administrative
decision not to reduce that sentence. We do not think the
Congress intended to limit federal review of a sentence
imposed by a state court while allowing an unfettered appeal
from a parole decision declining to decrease the time served
thereunder. See Walker, 216 F.3d at 644 (Easterbrook, J.,
dissenting from denial of rehearing en banc). The relative
informality of the liberty-affecting administrative processes of
parole or of good-time-credit disciplinary proceedings, com-
pared to judicial convictions and sentencing, is not cause for
plenary federal appellate scrutiny in addition to district court
scrutiny, as the Seventh Circuit believes, Walker, 216 F.3d at
637-38, because less process is due in those post-conviction
determinations. See Morrissey v. Brewer, 408 U.S. 471, 480
(1972) (parole revocation). Therefore Madley, whose deten-
tion ultimately arises out of his conviction and sentencing--
process--by the Superior Court of the District, a state court
for this purpose, needs a COA to proceed with appellate
review of his complaint about denial of reparole.
The fact that Madley needs a COA and does not presently
have one does not dispose of the matter. Madley did not
request a COA from the district court and the district court
did not grant or deny one on its own. See Fed. R. App. P.
22(b)(1). Had the district court denied a COA, Madley might
have asked for a COA from one of our number, id., but had
he failed to do so, the notice of appeal itself would be deemed
an application to the judges of this court for such a certificate.
Fed. R. App. P. 22(b)(2). We will not dismiss on the ground
that Madley has no power to request a COA from us because
the district court has not technically denied the COA. Nor,
in the circumstances of this case, will we assume that remand
to the district court for yet a third evaluation of the merits
would serve any purpose because the district court's view of
the strength of the application is clear from that court's
denial of the petition and of the subsequent Rule 60 motion
without ever soliciting a response from the named respondent
or any other person. Accordingly, we will treat the COA as
denied under Rule 22 by the district court and the notice of
appeal as a request to us under Rule 22 for the denied COA.
The question before us, then, is whether we should issue a
certificate--i.e., whether Madley has made a substantial
showing of deprivation of a constitutional right, as required
by section 2253(c)(2).
We conclude that he has not. Madley alleges, but does not
complain of, revocation of parole based on noncriminal behav-
ior, followed after a year by a reparole hearing at which he
fully expected parole based on applicable guidelines. The
United States Parole Commission, which had not made the
original parole revocation decision but which was charged
with parole determinations for District prisoners when Mad-
ley again became eligible for parole review, however, denied
him parole on the basis of an attempted burglary charge of
which he claims innocence, that had been dismissed, and that
was not the basis for revocation of parole. The Parole
Commission apparently failed to follow the procedures pre-
scribed in its own regulations for denial of parole based on
evidence of new criminal conduct. Madley alleges deprivation
of due process.
The difficulty for Madley is that there is "not, of course,
... a direct constitutional liberty interest in parole," Blair-
Bey v. Quick, 151 F.3d 1036, 1047 (D.C. Cir. 1998), and non-
mandatory parole regulations for the District do not create
one. Id. See Greenholtz v. Inmates of Neb. Penal & Corr.
Complex, 442 U.S. 1, 7-8, 11-12 (1979). The particular parole
regulations at issue here remain discretionary, insufficiently
mandatory to create a constitutional liberty interest that
otherwise would not exist. See 28 C.F.R s 2.21(d) ("merely
guidelines"). It may be, as this court has observed before in
dictum, that "exceptionally arbitrary governmental conduct
may in itself violate the due process clause," 151 F.3d at 1048
n.11, but the facts alleged here do not meet that standard.
Accordingly, we conclude that Madley has not made the
showing required, and we therefore must deny the certificate
of appealability and dismiss the appeal without reaching any
other issue.
Appeal dismissed.