Still v. Milyard , 361 F. App'x 908 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
January 20, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
MINOR MICHAEL STILL,
Petitioner-Appellant,
v. No. 09-1295
(D.C. No. 1:09-CV-00461-ZLW)
KEVIN MILYARD, Warden, (D. Colo.)
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before MURPHY, McKAY, and BALDOCK, Circuit Judges.
Minor Michael Still filed a pro se habeas corpus application under
28 U.S.C. § 2241 against Kevin Milyard, warden of the state correctional facility
in which Mr. Still is incarcerated. He contended that his state sentence is being
executed in violation of his constitutional rights. The district court denied relief
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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 This order is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
and Mr. Still seeks a Certificate of Appealability (COA) in order to appeal that
decision. We deny his request for a COA and dismiss the appeal.
I.
In May 2007, Mr. Still was paroled from a two-year sentence he had served
in the Colorado Department of Corrections (CDOC). At that time he was subject
to a federal detainer on an unrelated 36-month federal sentence. But rather than
being taken into federal custody, he was transferred to the custody of Jefferson
County, Colorado, due to an outstanding warrant on another state offense.
Mr. Still pled guilty to the Jefferson County charge and was sentenced to a
five-year term of imprisonment, which the court ordered to be served concurrently
with his previously imposed 36-month federal sentence.
After sentencing in Jefferson County, Mr. Still was returned to CDOC
where he is currently serving his five-year state sentence. But Mr. Still wants to
be transferred to federal custody to begin serving his federal sentence, in order to
give effect to the Jefferson County court’s order for concurrent sentences. He
states that CDOC does not object to such a transfer. CDOC has further
represented that it will give him credit on his five-year state sentence for any time
he serves in federal custody. The problem, according to Mr. Still, is that the
United States Marshals Service refuses to take him into custody until he has
served his full five-year state sentence in CDOC.
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Mr. Still previously filed state-court petitions against state authorities, none
of which resulted in him obtaining the relief he seeks. In March 2009 he filed
this § 2241 petition, asserting violations of his Fifth, Eighth, and Fourteenth
Amendment rights by CDOC’s failure to properly execute his current state
sentence. 1 The crux of Mr. Still’s claim is that CDOC is forcing him to serve his
state and federal sentences consecutively, rather than concurrently. The district
court denied relief, stating:
Mr. Still’s main concern is that he be allowed to serve his state and
federal sentences concurrently rather than consecutively. It appears
that the real obstacle Mr. Still faces in serving his state and federal
sentences concurrently is that his federal sentence has not
commenced. However, Mr. Still cannot force federal prison officials
to commence his federal sentence by challenging the execution of his
state sentence in this habeas corpus action against a state official. If
Mr. Still wishes to pursue a claim challenging the execution of his
federal sentence, he must pursue that claim in a habeas corpus action
against an appropriate federal respondent. Although it is not clear
whether Mr. Still may be entitled to habeas corpus relief with respect
to the execution of his federal sentence, such relief is not available in
the instant action because he is challenging here only the execution
of his state sentence.
R. at 112-13 (citation omitted). The district court also denied Mr. Still a COA
and leave to proceed in forma pauperis on appeal.
1
Mr. Still’s initial § 2241 petition challenged both his state and federal
sentences. After the district court ordered him to file an amended petition raising
either his state or his federal claims, he dropped his federal claims from this
action. He subsequently filed a separate petition challenging the execution of his
federal sentence. See Still v. Herndon, No. 1:09cv01326-MSK-KLM (D. Colo.
filed June 8, 2009).
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II.
A challenge to the execution of a state sentence is properly brought under
§ 2241. See Davis v. Roberts, 425 F.3d 830, 833 (10th Cir. 2005). But as a
prisoner whose detention arises out of process issued by a state court, Mr. Still
must obtain a COA in order to appeal the denial of his § 2241 habeas petition.
See id. “A certificate of appealability may issue . . . only if the applicant has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). Mr. Still “can make such a showing by demonstrating that the
issues he seeks to raise on appeal are deserving of further proceedings, subject to
a different resolution on appeal, or reasonably debatable among jurists of reason.”
Montez v. McKinna, 208 F.3d 862, 869 (10th Cir. 2000).
Mr. Still has not demonstrated a basis for this court to grant a COA in this
matter. His claim does not relate to the execution of his state sentence, and he
fails to show how any state authority could provide him the relief he seeks with
respect to his federal sentence. Indeed, commencement of a federal sentence is
controlled by federal statute. See 18 U.S.C. § 3585(a). Moreover, even when a
state court imposes a state sentence to be served concurrently with a federal
sentence, commencement of the federal sentence remains a matter of federal
authority. See United States v. Eccleston, 521 F.3d 1249, 1254 (10th Cir.) (state
court order providing for concurrent service of state and federal sentences cannot
alter federal court sentence), cert. denied, 129 S. Ct. 430 (2008); Bloomgren v.
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Belaski, 948 F.2d 688, 691 (10th Cir. 1991) (“The determination by federal
authorities that [petitioner’s] federal sentence would run consecutively to his state
sentence is a federal matter which cannot be overridden by a state court provision
for concurrent sentencing on a subsequently-obtained state conviction.”). Thus,
Mr. Still has made no substantial showing of the denial of a constitutional right
with respect to the execution of his state sentence.
III.
For the foregoing reasons, we DENY Mr. Still’s request for a COA and
DISMISS the appeal. In addition, we DENY Mr. Still’s request to proceed on
appeal in forma pauperis.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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