FILED
United States Court of Appeals
Tenth Circuit
April 11, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
NOBLE L. JOHNSON,
Petitioner-Appellant, No. 10-3329
v. (D. of Kan.)
KANSAS PAROLE BOARD, (D.C. No. 10-CV-3126-SAC)
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges. **
Noble Johnson, a state prisoner proceeding pro se, 1 seeks a certificate of
appealability (COA) to appeal the district court’s dismissal of his habeas petition
under 28 U.S.C. §§ 2241 and 2254. After careful review of the record, we
conclude that Johnson has not exhausted his remedies under state law and that his
claims fail on the merits.
*
This order is not binding precedent except under the doctrines of law of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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
1
Because Johnson is proceeding pro se, we construe his filings liberally.
See Van Deelan v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we deny his request
for a COA and dismiss this appeal.
I. Background
Johnson is currently serving two consecutive sentences of fifteen years to
life at the Lansing Correctional Facility. He has appeared before the Kansas
Parole Board (KPB) numerous times and each time been denied parole. In its
most recent denial, the KPB exercised its statutory prerogative under K AN . S TAT .
A NN . § 22-3717 to defer the next parole hearing ten years, rather than the usual
period of one or three years. The KPB explained its decision as follows:
After considering all statutory factors, the decision of the [KPB] is:
Pass to March 2017. Pass Reasons: serious nature/circumstances of
crime; violent nature of crime; objections to parole. Extended Pass
Reasons: Inmate has been sentenced for a class A or B felony or an
off grid felony and the board makes a special finding that a
subsequent parole hearing should be deferred for ten (10) years,
because it is not reasonable to expect that parole would be granted at
a hearing if held before then, for the reasons indicated below: inmate
needs continued structure and community resources cannot provide
sufficient support to meet these needs and to provide for public
safety.
Johnson v. Kan. Parole Bd., No. 99,552, 191 P.3d 1136, 2008 WL 4239117, at *1
(Kan. Ct. App. Sept. 12, 2008) (quoting the KPB decision).
Johnson challenged the KPB disposition in Kansas state court. The court
denied his petition. Johnson unsuccessfully appealed the denial to the Kansas
Court of Appeals (KCA).
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He then brought this habeas petition in federal district court. The district
court found that Johnson did not exhaust his remedies in state court and that, in
any case, Johnson failed to state a viable federal claim. The court issued an order
to show cause why the petition should not be dismissed. Johnson responded by
filing a motion for reconsideration. The court denied the motion and dismissed
the claim. The court subsequently denied Johnson’s request for a COA.
Johnson now seeks a COA from this court to enable him to appeal the
denial of his habeas petition. He raises the following constitutional arguments on
appeal: (1) the KPB proceedings violated the Due Process Clause, (2) the KPB’s
application of § 22-3717 to Johnson violated the Ex Post Facto Clause, and
(3) the KPB decision violated the Equal Protection Clause. He also requests to
proceed in forma pauperis.
II. Discussion
A challenge to the denial of parole is an attack on the execution of the
sentence and is properly brought under § 2241, rather than § 2254. Henderson v.
Scott, 260 F.3d 1213, 1214 (10th Cir. 2001); see also Powell v. Ray, 301 F.3d
1200, 1201 (10th Cir. 2002). We will therefore treat the petition as arising under
§ 2241.
Without a COA, we lack jurisdiction to consider the merits of a state
prisoner’s habeas appeal. 28 U.S.C. § 2253(c)(1)(A). We may issue a COA only
if “the applicant has made a substantial showing of the denial of a constitutional
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right.” 28 U.S.C. § 2253(c)(2). To make the requisite showing, Johnson must
demonstrate 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.”
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations omitted).
Having thoroughly reviewed the record, we conclude Johnson is not
entitled to a COA on any of the issues he seeks to pursue on appeal. As a
threshold matter, we recognize Johnson did not make the equal protection claim
in the district court. This claim is therefore waived. As a general rule, we will
not consider issues on appeal that were not raised in the habeas petition before the
district court. See Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir. 1999); see also
Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 721–22 (10th Cir. 1993).
As for Johnson’s remaining claims, we find they must fail for substantially
the same reasons articulated by the district court.
A. Exhaustion
The district court concluded that Johnson failed to exhaust his remedies in
state court and, further, that he made no showing of cause and prejudice to excuse
procedural default. We agree.
Before filing a federal habeas corpus petition, an inmate must exhaust the
available state remedies. See Coleman v. Thompson, 501 U.S. 722, 730–31
(1991). “The exhaustion requirement is satisfied if the federal issue has been
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properly presented to the highest state court . . . .” Dever v. Kansas State
Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). It appears from the record that
Johnson did not seek timely review of the KCA decision to the Kansas Supreme
Court. He has therefore failed to exhaust his state remedies.
Generally, when a petitioner fails to exhaust his state court remedies, the
federal habeas petition should be dismissed to allow the petitioner to return to
state court to pursue those remedies. See Demarest v. Price, 130 F.3d 922, 939
(10th Cir. 1997). But the Supreme Court has held if “the petitioner failed to
exhaust state remedies and the court to which the petitioner would be required to
present his claims in order to meet the exhaustion requirement would now find the
claims procedurally barred,” the petitioner’s claims are procedurally defaulted for
purposes of federal habeas corpus review. Coleman, 501 U.S. at 735 n.1; see also
Dulin v. Cook, 957 F.2d 758, 759 (10th Cir. 1992). Federal habeas corpus review
of procedurally barred issues is precluded “unless the prisoner can demonstrate
cause for the default and actual prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.” Coleman, 501 U.S. at 750.
Because the KCA decision was issued in 2008, it is clear Johnson’s appeal
to the Kansas Supreme Court is now time-barred. Johnson’s claims are thus
procedurally defaulted for purposes of federal habeas corpus review. We must
therefore consider whether Johnson has offered grounds to excuse the procedural
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default. Johnson’s sole argument on this point is that his attorney in the state
appeal failed to notify him of the KCA’s decision and that he only learned of the
decision a year and a half after it was published. In other words, Johnson
contends ineffective assistance of counsel was the cause of his default. But
prisoners have no constitutional right to counsel in post-conviction applications
for relief. See id., 501 U.S. at 757. And where the petitioner had no right to
counsel in the state proceeding, “any attorney error that led to the default of [the
petitioner’s] claims in state court cannot constitute cause to excuse the default in
federal habeas.” Id. We therefore find that Johnson has not shown cause and
prejudice for his procedural default and that his claims are barred.
B. Failure to State a Federal Claim
Although the district court found Johnson’s claims were procedurally
barred, it also dismissed the due process and ex post facto claims on the merits.
We agree with the court’s conclusions.
1. Due Process Claims
Johnson argues the KPB denied him due process because it relied on
objections to his parole without specifying the source and basis of the objections
and because it acted in an arbitrary and capricious manner.
To make a claim for denial of due process in violation of the Fourteenth
Amendment, a plaintiff must show the deprivation of a protected liberty or
property interest. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569
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(1972). Although the Due Process Clause does not grant a prisoner the right to
parole, a state’s parole statutes may, through the use of mandatory language,
create a liberty interest that is entitled to due process protection. See Malek v.
Haun, 26 F.3d 1013, 1015 (10th Cir. 1994). But the Kansas Supreme Court has
held the Kansas parole statute is discretionary; it therefore does not create a
protected liberty interest. See Gilmore v. Kan. Parole Bd., 756 P.2d 410, 415
(1988) (“[Section] 22-3717 does not create a liberty interest in parole.”); see also
§ 22-3717(g) (“[T]he Kansas parole board may release on parole those
persons . . . who are eligible for parole.” (emphasis added)). Absent a liberty
interest in parole, Johnson is not entitled to due process protection. See Malek,
26 F.3d at 1016.
2. Ex Post Facto Claim
Next, Johnson contends the KPB’s application of § 22-3717 to him violated
the Ex Post Facto Clause, because the statute was only amended after his
conviction to allow a ten-year deferral of parole hearings.
“One function of the Ex Post Facto Clause is to bar enactments which, by
retroactive operation, increase the punishment for a crime after its commission.”
Garner v. Jones, 529 U.S. 244, 249–50 (2000). But “[w]hen the amendment
creates only the most speculative and attenuated possibility of increasing the
measure of punishment, it is insufficient under any threshold to violate the Ex
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Post Facto Clause. Henderson v. Scott, 260 F.3d 1213, 1215 (10th Cir. 2001)
(quotations omitted) .
The Supreme Court has declined to “adopt a single formula for identifying
which legislative adjustments, in matters bearing on parole, would survive an ex
post facto challenge.” Garner, 529 U.S. at 252. Instead, the Supreme Court has
identified the following factors as relevant to the inquiry: (1) whether the parole
board has discretion to determine if an inmate is eligible for release, id. at 253;
(2) whether the parole board has the authority to tailor the frequency of the parole
hearings to a particular inmate’s circumstances, Cal. Dep’t of Corr. v. Morales,
514 U.S. 499, 511 (1995); (3) whether the challenged statute permits an expedited
parole review in the event the inmate’s circumstances change, Garner, 529 U.S. at
254; (4) whether an administrative appeal is available, Morales, 514 U.S. at 513;
and (5) the likelihood the plaintiff would be released on parole if he received a
hearing sooner than his next scheduled hearing, see id. at 510–11.
In a prior unpublished decision, this court found § 22-3717 satisfied the
first four factors listed above. See Berry v. Scafe, 16 F. App’x 948, 950–52 (10th
Cir. 2001) (noting that, under the statute, the KPB has discretion to grant parole
and to set the date of the next parole hearing, and further observing that the
statute provides for expedited review and appeal). Although this order and
judgment is not binding on us, it is persuasive. We also find the fifth factor
weighs against Johnson’s claim. Because Johnson was convicted of two violent
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murders and is currently serving two consecutive fifteen-year-to-life sentences, it
is unlikely he would receive parole even if he were granted a hearing in three
years. See Morales, 514 U.S. at 510 (upholding a similar California statute after
observing “the likelihood of release on parole is quite remote” for those prisoners
who have been convicted of “more than one offense which involves the taking of
a life.” (quotation omitted)). Accordingly, we conclude § 22-3717, as applied to
Johnson, does not violate the Ex Post Facto Clause.
III. Conclusion
For the foregoing reasons we AFFIRM the dismissal of Johnson’s habeas
petition. We also GRANT Johnson’s motion to proceed in forma pauperis on
appeal.
ENTERED FOR THE COURT
Timothy M. Tymkovich
Circuit Judge
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