FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 16, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court ANDREW MARK LAMAR,
Petitioner - Appellant,
v. No. 18-1270 (D.C. No. 1:16-CV-02808-MJW) JOHN O’DELL, Colorado Parole Board (D. Colo.) Member,
Respondent - Appellee. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before BACHARACH, MURPHY, and MORITZ, Circuit Judges. _________________________________
Andrew Lamar, a Colorado prisoner proceeding pro se,1 seeks to appeal the
district court’s order denying his 28 U.S.C. § 2241 petition.2 But first, he must obtain
a certificate of appealability (COA). See Montez v. McKinna, 208 F.3d 862, 867 (10th
Cir. 2000) (holding that state prisoner is required to “obtain a COA to appeal the
denial of a habeas petition . . . filed pursuant to . . . § 2241”).
* This order isn’t binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 1 Because Lamar proceeds pro se, we liberally construe his filings. See Eldridge v. Berkebile, 791 F.3d 1239, 1243 n.4 (10th Cir. 2015). But we won’t act as his advocate. See id. 2 A magistrate judge heard the case upon the parties’ consent. See Fed. R. Civ. P. 73. “To obtain a COA,” Lamar “must make a substantial showing of the denial of
a constitutional right”—i.e., he must demonstrate “that reasonable jurists could
debate whether (or, for that matter, agree that)” the district court should have
“resolved” his constitutional claims “in a different manner.” Slack v. McDaniel, 529
U.S. 473, 483–84 (2000). For the reasons discussed below, we conclude that Lamar
fails to make this showing. Accordingly, we decline to issue a COA and dismiss this
matter.
Background
Lamar is currently serving a sentence of 12 years to life in prison for sexual
assault. See Colorado Sex Offender Lifetime Supervision Act (SOLSA) of 1998,
Colo. Rev. Stat. Ann. §§ 18-1.3-1001 to -1012. In 2016, he filed the underlying
§ 2241 petition in federal district court. In that petition, Lamar asserted that
(1) denying him parole and continuing to confine him after he has already served his
minimum 12-year sentence violates the Fourteenth Amendment; (2) he has a liberty
interest that prohibits the Colorado State Board of Parole (the Board) from
determining whether he has been rehabilitated or whether he continues to pose a
threat to the public; and (3) § 2241 is the appropriate vehicle in which to advance
these arguments.
The district court agreed that Lamar could bring his claims under § 2241. But
it nevertheless denied him relief. In doing so, the district court first pointed out that
this court has repeatedly indicated SOLSA doesn’t “create a liberty interest in parole
of sex offenders” and therefore “due process is not implicated in the denial of parole
2 under SOLSA.” Diaz v. Lampela, 601 F. App’x 670, 677 (10th Cir. 2015)
(unpublished); see also Conkleton v. Raemisch, 603 F. App’x 713, 716 (10th Cir.
2015) (unpublished) (“Because Colorado’s parole scheme for sex offenders is
discretionary . . . [p]laintiff does not have a constitutionally protected liberty interest
in being granted parole or in receiving a favorable parole certification or
recommendation.”); Jago v. Ortiz, 245 F. App’x 794, 797 (10th Cir. 2007)
(unpublished) (“Because [SOLSA] gives the [B]oard total discretion in granting
parole . . . [petitioner] has no federally protected liberty interest.”).
Next, the district court noted that at Lamar’s 2016 parole hearing, the Board
“deferred its parole decision to November 2019” at Lamar’s own behest. R. 68. The
district court also pointed out that the Board determined Lamar continued to present a
risk to the public. Under these circumstances, the district court reasoned, the Board’s
“deferment” of its decision until November 2019 wasn’t “arbitrary, capricious, or an
abuse of discretion.” Id. at 69. Finally, the district court rejected Lamar’s suggestion
that Humphrey v. Cady, 405 U.S. 504 (1972), or Specht v. Patterson, 386 U.S. 605
(1967), might establish otherwise. Accordingly, the district court denied Lamar’s
petition.
Analysis
I. Due Process
In attempting to show that reasonable jurists would find the district court’s
resolution of his due-process claim debatable or wrong, Lamar first renews his
assertion that he has “a due[-]process liberty interest” in parole “once the lower[]end
3 [of his] sentence has expired.” Aplt. Br. 3. Specifically, Lamar argues that once he
completed the first 12 years of his sentence, denying him parole and continuing to
confine him amounts to imposing a new sentence. Thus, he insists, the district court
erred in concluding that by declining to grant him parole, the Board merely
“continue[d] the punishment previously imposed by the court that sentenced him for
the underlying offense.” R. 69 (quoting Diaz, 601 F. App’x at 676).
In support, Lamar first cites People v. Kibel, 701 P.2d 37 (Colo. 1985). In
Kibel, the Colorado Supreme Court indeed noted, “Several courts . . . have held that,
following the expiration of a period equal to the maximum permissible sentence for
the underlying crimes, sex offenders must be afforded the same procedural
protections as civil committees or other groups whose commitment serves the state
interest in public protection.” 701 P.2d at 42 n.8 (emphasis added). But the Colorado
Supreme Court then went on to explain that “[s]ex offenders are confined for an
indeterminate period.” Id. Here, for instance, Lamar is serving a sentence of 12 years
to life in prison. And although Lamar points out that he has already served his
minimum 12-year sentence, the district court correctly noted that Lamar neither
identifies “what he believes [to be] the . . . maximum permissible sentence for his
underlying crimes” nor alleges that “he has served that time.” R. 70 (emphasis
added). Thus, we reject Lamar’s assertion that Kibel “supports [his] claim.” Aplt. Br.
3.
Next, Lamar cites Block v. Potter, 631 F.2d 233 (3d Cir. 1980). There, the
Third Circuit held that “[e]ven if a state statute does not give rise to a liberty interest
4 in parole release,” prisoners nevertheless “have a liberty interest flowing directly
from the due[-]process clause in not being denied parole for arbitrary or
constitutionally impermissible reasons.” Block, 631 F.2d at 236. Yet Block’s
approach has since “been rejected by other circuits” and even “called into doubt by
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 16, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court ANDREW MARK LAMAR,
Petitioner - Appellant,
v. No. 18-1270 (D.C. No. 1:16-CV-02808-MJW) JOHN O’DELL, Colorado Parole Board (D. Colo.) Member,
Respondent - Appellee. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before BACHARACH, MURPHY, and MORITZ, Circuit Judges. _________________________________
Andrew Lamar, a Colorado prisoner proceeding pro se,1 seeks to appeal the
district court’s order denying his 28 U.S.C. § 2241 petition.2 But first, he must obtain
a certificate of appealability (COA). See Montez v. McKinna, 208 F.3d 862, 867 (10th
Cir. 2000) (holding that state prisoner is required to “obtain a COA to appeal the
denial of a habeas petition . . . filed pursuant to . . . § 2241”).
* This order isn’t binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 1 Because Lamar proceeds pro se, we liberally construe his filings. See Eldridge v. Berkebile, 791 F.3d 1239, 1243 n.4 (10th Cir. 2015). But we won’t act as his advocate. See id. 2 A magistrate judge heard the case upon the parties’ consent. See Fed. R. Civ. P. 73. “To obtain a COA,” Lamar “must make a substantial showing of the denial of
a constitutional right”—i.e., he must demonstrate “that reasonable jurists could
debate whether (or, for that matter, agree that)” the district court should have
“resolved” his constitutional claims “in a different manner.” Slack v. McDaniel, 529
U.S. 473, 483–84 (2000). For the reasons discussed below, we conclude that Lamar
fails to make this showing. Accordingly, we decline to issue a COA and dismiss this
matter.
Background
Lamar is currently serving a sentence of 12 years to life in prison for sexual
assault. See Colorado Sex Offender Lifetime Supervision Act (SOLSA) of 1998,
Colo. Rev. Stat. Ann. §§ 18-1.3-1001 to -1012. In 2016, he filed the underlying
§ 2241 petition in federal district court. In that petition, Lamar asserted that
(1) denying him parole and continuing to confine him after he has already served his
minimum 12-year sentence violates the Fourteenth Amendment; (2) he has a liberty
interest that prohibits the Colorado State Board of Parole (the Board) from
determining whether he has been rehabilitated or whether he continues to pose a
threat to the public; and (3) § 2241 is the appropriate vehicle in which to advance
these arguments.
The district court agreed that Lamar could bring his claims under § 2241. But
it nevertheless denied him relief. In doing so, the district court first pointed out that
this court has repeatedly indicated SOLSA doesn’t “create a liberty interest in parole
of sex offenders” and therefore “due process is not implicated in the denial of parole
2 under SOLSA.” Diaz v. Lampela, 601 F. App’x 670, 677 (10th Cir. 2015)
(unpublished); see also Conkleton v. Raemisch, 603 F. App’x 713, 716 (10th Cir.
2015) (unpublished) (“Because Colorado’s parole scheme for sex offenders is
discretionary . . . [p]laintiff does not have a constitutionally protected liberty interest
in being granted parole or in receiving a favorable parole certification or
recommendation.”); Jago v. Ortiz, 245 F. App’x 794, 797 (10th Cir. 2007)
(unpublished) (“Because [SOLSA] gives the [B]oard total discretion in granting
parole . . . [petitioner] has no federally protected liberty interest.”).
Next, the district court noted that at Lamar’s 2016 parole hearing, the Board
“deferred its parole decision to November 2019” at Lamar’s own behest. R. 68. The
district court also pointed out that the Board determined Lamar continued to present a
risk to the public. Under these circumstances, the district court reasoned, the Board’s
“deferment” of its decision until November 2019 wasn’t “arbitrary, capricious, or an
abuse of discretion.” Id. at 69. Finally, the district court rejected Lamar’s suggestion
that Humphrey v. Cady, 405 U.S. 504 (1972), or Specht v. Patterson, 386 U.S. 605
(1967), might establish otherwise. Accordingly, the district court denied Lamar’s
petition.
Analysis
I. Due Process
In attempting to show that reasonable jurists would find the district court’s
resolution of his due-process claim debatable or wrong, Lamar first renews his
assertion that he has “a due[-]process liberty interest” in parole “once the lower[]end
3 [of his] sentence has expired.” Aplt. Br. 3. Specifically, Lamar argues that once he
completed the first 12 years of his sentence, denying him parole and continuing to
confine him amounts to imposing a new sentence. Thus, he insists, the district court
erred in concluding that by declining to grant him parole, the Board merely
“continue[d] the punishment previously imposed by the court that sentenced him for
the underlying offense.” R. 69 (quoting Diaz, 601 F. App’x at 676).
In support, Lamar first cites People v. Kibel, 701 P.2d 37 (Colo. 1985). In
Kibel, the Colorado Supreme Court indeed noted, “Several courts . . . have held that,
following the expiration of a period equal to the maximum permissible sentence for
the underlying crimes, sex offenders must be afforded the same procedural
protections as civil committees or other groups whose commitment serves the state
interest in public protection.” 701 P.2d at 42 n.8 (emphasis added). But the Colorado
Supreme Court then went on to explain that “[s]ex offenders are confined for an
indeterminate period.” Id. Here, for instance, Lamar is serving a sentence of 12 years
to life in prison. And although Lamar points out that he has already served his
minimum 12-year sentence, the district court correctly noted that Lamar neither
identifies “what he believes [to be] the . . . maximum permissible sentence for his
underlying crimes” nor alleges that “he has served that time.” R. 70 (emphasis
added). Thus, we reject Lamar’s assertion that Kibel “supports [his] claim.” Aplt. Br.
3.
Next, Lamar cites Block v. Potter, 631 F.2d 233 (3d Cir. 1980). There, the
Third Circuit held that “[e]ven if a state statute does not give rise to a liberty interest
4 in parole release,” prisoners nevertheless “have a liberty interest flowing directly
from the due[-]process clause in not being denied parole for arbitrary or
constitutionally impermissible reasons.” Block, 631 F.2d at 236. Yet Block’s
approach has since “been rejected by other circuits” and even “called into doubt by
the Third Circuit itself.” Wildermuth v. Furlong, 147 F.3d 1234, 1239 n.7 (10th Cir.
1998) (Anderson, J., dissenting). And in any event, the district court in this case
reviewed the Board’s 2016 “deferment” decision and determined that it wasn’t
“arbitrary, capricious, or an abuse of discretion.” R. 69. Lamar doesn’t challenge that
aspect of the district court’s ruling on appeal. See Fed. R. App. P 28(a)(8)(A); Jordan
v. Bowen, 808 F.2d 733, 736 (10th Cir. 1987). Nor could he credibly do so, as it
appears the Board deferred its decision upon Lamar’s express request. Thus, Lamar
isn’t entitled to a COA on this basis. See Slack, 529 U.S. at 484.
II. Equal Protection
Lamar next alleges the district court erred in concluding that he failed to
adequately “raise an equal[-]protection claim based on” the Supreme Court’s decision
in Humphrey, 405 U.S. 504. R. 70. Construed liberally, Lamar insists, his petition
was sufficient to place this issue before the district court.
Yet even if we agree with Lamar that his equal-protection claim is “properly”
before us, his opening brief suffers the same deficiency as did his petition. Aplt. Br.
4. Namely, Humphrey involved a state statutory scheme that, for purposes of making
involuntary-commitment decisions, treated sex offenders differently from certain
other individuals. See Humphrey, 405 U.S. at 508 (noting contrast between
5 Wisconsin’s Mental Health Act, which provided individuals with “a statutory right to
have a jury determine whether” they satisfied “the standards for commitment,” with
Wisconsin’s Sex Crimes Act, which afforded no such right). And as the district court
pointed out below, Lamar failed to identify in his petition any “differing laws
enforced in Colorado akin to those evaluated in Humphrey.” R. 70.
Lamar likewise fails to identify any such “differing laws” on appeal. Id. Thus,
he fails to make the “threshold showing” necessary to state a viable equal-protection
claim—i.e., “that [he was] treated differently from others who were similarly
situated.” Brown v. Montoya, 662 F.3d 1152, 1173 (10th Cir. 2011) (quoting Barney
v. Pulsipher, 143 F.3d 1299, 1312 (10th Cir. 1998)). Accordingly, Lamar isn’t
entitled to a COA on this basis. See Slack, 529 U.S. at 484.
Conclusion
Lamar doesn’t demonstrate that reasonable jurists could debate the district
court’s resolution of his constitutional claims. We therefore decline to issue a COA
and dismiss this appeal. As a final matter, we deny Lamar’s motion to proceed in
forma pauperis. See Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312 (10th Cir.
2005) (“[I]n order to succeed on a motion to proceed [in forma pauperis], the movant
must show a financial inability to pay the required filing fees, as well as the existence
of a reasoned, nonfrivolous argument on the law and facts in support of the issues
6 raised in the action.”).
Entered for the Court
Nancy L. Moritz Circuit Judge