FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 13, 2017
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
SCOTT FIRTH,
Petitioner - Appellant,
v.
No. 16-1380
RICK RAEMISCH, Executive (D.C. No. 1:16-CV-00406-LTB)
Director for Colorado Department of (D. Colo.)
Corrections; CYNTHIA COFFMAN,
Attorney General for Colorado,
Respondents - Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before TYMKOVICH, Chief Judge, KELLY, and MATHESON, Circuit Judges.
Scott Firth, a Colorado state prisoner, appeals from the district court’s
dismissal of his application for a writ of habeas corpus. Firth raised three claims:
(1) entitlement to a definite prison term, (2) entitlement to earned-time credits,
and (3) entitlement to discretionary parole. The district court concluded that none
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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. This order is not binding
precedent except under the doctrines of law of the case, res judicata, and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.
of the claims has merit. To pursue this appeal, Firth must obtain a certificate of
appealability (COA) from this court. 28 U.S.C. § 2253(c)(1)(A). That, in turn,
requires him to make “a substantial showing of the denial of a constitutional
right,” 28 U.S.C. § 2253(c)(2), by establishing “that reasonable jurists could
debate whether . . . 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. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks
omitted). He cannot meet these requirements.
We agree with the district court that the first and third claims challenge the
validity of his sentence rather than the execution of it, and so are properly
considered under 28 U.S.C. § 2254 rather than 28 U.S.C. § 2241. Regardless of
his characterization, Firth’s underlying claim is that he deserves immediate
release because his current sentence is illegal. That claim thus challenges the
validity rather than the execution of the sentence. See Davis v. Roberts, 425 F.3d
830, 834 (10th Cir. 2005). As this court turned away his earlier § 2254
application, see Firth v. Smelser, 403 F. App’x 321, 322 (10th Cir. 2010)
(unpublished), Firth must demonstrate entitlement to file a second or successive
application, which we can authorize only if a new rule of constitutional law (made
retroactive by the Supreme Court) or some new factual predicate has emerged.
See 28 U.S.C. § 2244(b). Because Firth points to neither here, we deny
authorization to file the current application.
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We also conclude that reasonable jurists would not disagree with the
district court’s dismissal of the earned-time credits claim. As this court noted in
Fogle v. Pierson, 435 F.3d 1252 (10th Cir. 2006), Colorado law makes earned-
time credits discretionary, not mandatory, so prisoners have no entitlement to
them. Id. at 1262. Nothing in Firth’s brief persuades us that Fogle spoke
incorrectly. The lack of a constitutionally protected liberty interest in earned-
time credits under Colorado law thus precludes federal habeas relief.
We DENY the request for a COA and dismiss this appeal. Further, we
DENY Mr. Firth’s motions to certify a question of state law, to interpret questions
of law, and for authorization to file a second or successive habeas application.
Finally, we DENY the motion to proceed in forma pauperis and remind Firth of
his obligation to pay the filing fee in full.
ENTERED FOR THE COURT
Timothy M. Tymkovich
Chief Judge
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