Oliver v. Raemisch

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
April 29, 2014
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

GREGORY WADE OLIVER,
Petitioner–Appellant,
v. No. 13-1348
(D.C. No. 1:13-CV-01076-LTB)
RICK RAEMISCH, Executive (D. Colo.)
Director Colorado Department of
Corrections; JOHN SUTHERS,
Attorney General,
Respondents–Appellees.

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before LUCERO, McKAY, and MURPHY, Circuit Judges.

Petitioner Gregory Wade Oliver, proceeding pro se, seeks to appeal the

denial of his application for habeas corpus relief under 28 U.S.C. § 2241 by the

United States District Court for the District of Colorado.

Petitioner is currently serving a mandatory term of parole in relation to a

sentence he received in Colorado state court. In April 2013, Petitioner filed an

application for a writ of habeas corpus under 28 U.S.C. § 2241 in the United

States District Court for the District of Colorado. In his application, Petitioner

*
This order is not binding precedent, except under the doctrines of law of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.
argued that earned-time credits were wrongfully withheld from him during his

incarceration as a result of his refusal to participate in Colorado’s Sex Offender

Treatment Management Program. Petitioner requested these earned-time credits

be applied to the parole component of his sentence. In ruling on the application,

the district court noted that it was bound by the Colorado Supreme Court’s

interpretation of Colorado law, insofar as the Colorado Supreme Court’s

interpretation did not violate federal law. See Mullaney v. Wilbur, 421 U.S. 684,

691 (1975); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). The district court

then explained the Colorado Supreme Court has held that earned-time credits do

not count as service of an inmate’s sentence, see Rather v. Suthers, 973 P.2d

1264, 1266 (Colo. 1999), but rather serve only to establish parole eligibility, see

Jones v. Martinez, 799 P.2d 385, 387-88 (Colo. 1990). Therefore, the district

court concluded that because Petitioner was already on parole, his request for

relief was moot. Accordingly, the district court denied Petitioner’s application

for habeas corpus. The district court further ordered that no certificate of

appealability would issue because Petitioner failed to make a substantial showing

of the denial of a constitutional right.

While Petitioner did not file an application for a certificate of appealability

with this court, his notice of appeal may be construed as such. See Fed. R. App.

P. 22(b)(2). After thoroughly reviewing the record and Petitioner’s filings on

appeal, we conclude that reasonable jurists would not debate the district court’s

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dismissal of the habeas petition. See Slack v. McDaniel, 529 U.S. 473, 484

(2000).

Therefore, for substantially the same reasons given by the district court, we

DENY Petitioner’s request for a certificate of appealability and DISMISS the

appeal. However, Petitioner’s motion to proceed on appeal without prepayment

of costs or fees is GRANTED.

Entered for the Court

Monroe G. McKay
Circuit Judge

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