Jones v. Hannigan , 1 F. App'x 856 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 9 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
ALFRED G. JONES,
Petitioner-Appellant,
v. No. 00-3099
ROBERT HANNIGAN; ATTORNEY (D.C. No. 99-CV-3040-DES)
GENERAL OF KANSAS; KANSAS (D.Kan.)
PAROLE BOARD,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR , EBEL and BRISCOE, Circuit Judges.
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.
Petitioner Alfred Jones, a state prisoner appearing pro se, seeks a
This order and judgment is not binding precedent, except under the
*
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
certificate of appealability to appeal the district court’s denial of his 28 U.S.C. §
2254 petition for writ of habeas corpus. After a review of Jones’ claims, we
conclude they are properly brought under 28 U.S.C. § 2241. We deny the request
for a certificate of appealability and dismiss the appeal.
I.
Jones was convicted in 1967 of two counts of murder in the first degree,
aggravated assault, aggravated robbery, unlawful possession of firearms, and
willfully obstructing a ministerial officer in the discharge of an official duty, and
was sentenced to life imprisonment. He was placed on parole on April 24, 1990.
On April 23, 1993, his parole was revoked based on Jones committing new
crimes and his violation of parole conditions. He was again placed on parole on
May 13, 1993, but it was revoked on September 27, 1995, after he was convicted
of burglary and theft and found in violation of parole conditions. Jones was
denied parole on August 21, 1997, and was passed for parole consideration until
September 2000, because of the “serious nature & circumstances of crime; history
of crim. acts; 3 times in prison; failure on parole.” Record, Doc. 7, att. 7. His
request for reconsideration was denied. Jones’ action for habeas relief in state
court was dismissed for failure to state a claim. The Kansas Court of Appeals
affirmed the district court’s action and the Kansas Supreme Court denied review.
In his § 2254 habeas petition, Jones argued that (1) application of Kan.
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Stat. Ann. § 22-3717(f) (1993 Supp.), that was in effect at the time he violated
parole in 1995, violated the ex post facto clause because he was denied the
benefit of application of the earlier version of the statute; (2) he was denied due
process because the reasons stated for parole denial in August 1997 related to
why he was being passed for parole to 2000 and not why he was being denied
parole; and (3) the Kansas Supreme Court violated his due process rights by
denying review of the Kansas Court of Appeals decision.
II.
Although Jones invoked § 2254 and the district court discussed the petition
as arising under § 2254, challenges to parole procedures concern the execution of
a petitioner’s sentence and therefore must be brought under 28 U.S.C. § 2241.
See United States v. Furman , 112 F.3d 435, 438 (10th Cir. 1997). Accordingly,
the petition will be treated as if it were filed under § 2241.
Jones contends that, notwithstanding its repeal, Kan. Stat. Ann. § 22-
3717(f) (1993 Supp.) should have been applied during his parole hearing,
entitling him to have his sentence “converted to a KGSA sentence and to receive
credit for time served toward the converted sentence.” State v. Perez , 11 P. 3d
52, 53 (Kan. 2000). In an attempt to avoid the rule that “[c]riminal statutes and
penalties in effect at the time of a criminal offense are controlling,” State v. Sisk ,
966 P.2d 671, 674 (Kan. 1998), Jones argues the legislature violated the ex post
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facto clause when it altered § 22-3717(f) in 1994.
“‘To fall within the ex post facto prohibition, a law must be retrospective –
that is, it must apply to events occurring before its enactment – and it must
disadvantage the offender affected by it, by altering the definition of criminal
conduct or increasing the punishment for the crime.’” Smith v. Scott , 223 F.3d
1191, 1194 (10th Cir. 2000) (quoting Lynce v. Mathis , 519 U.S. 433, 441
(1997)). Here, the law in effect when Jones violated his parole was applied to
him. As a result, the ex post facto clause is not implicated..
Jones next contends he was denied due process because the reasons stated
for denial of parole in August 1997 related to why he was being passed for parole
to 2000 and not why he was being denied parole. Even assuming, arguendo, that
the reasons given only concerned the reason he was passed for parole, “[u]nless
there is a liberty interest in parole, the procedures followed in making the parole
determination are not required to comport with standards of fundamental
fairness.” O’Kelley v. Snow , 53 F.3d 319, 321 (11th Cir. 1995). “[T]he Kansas
parole statute does not give rise to a liberty interest when the matter before the
Board is the granting or denial of parole to one in custody. Parole, like
probation, is a matter of grace in this state. It is granted as a privilege and not as
a matter of fundamental right.” Gilmore v. Kansas Parole Board , 756 P. 2d 410,
415 (Kan. 1988). As a result, Jones cannot show the violation of a constitutional
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right.
Jones also contends the Kansas Supreme Court violated his due process
rights by denying his appeal from the Kansas Court of Appeals. In effect, he
argues he is entitled to a written decision explaining the court’s resolution of his
appeal, citing Kansas Supreme Court Rule 8.03(e)(1). The Kansas Supreme
Court did consider Jones’ appeal and denied it. The rule does not require more
than a summary resolution.
Jones has not made “a substantial showing of the denial of a constitutional
right,” 28 U.S.C. § 2253(c)(2), and his request for a certificate of appealability is
DENIED. The appeal is DISMISSED. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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