Denney v. Roberts, 10th Cir. (2006)

F I L E D
United States Court of Appeals

Tenth Circuit
UNITED STATES CO URT O F APPEALS
TENTH CIRCUIT
September 28, 2006

Elisabeth A. Shumaker
Clerk of Court
D A LE M . D EN N EY ,
Petitioner - A ppellant,
v.
No. 06-3269
(D. Kansas)
RAY ROBERTS, W arden, El Dorado

Correctional Facility; PHIL KLINE,
Attorney General of Kansas,
(D.C. No. 05-CV-3012-W EB)
Respondents - Appellees.
OR DER DENY ING CERTIFICATE O F APPEALABILITY *
Before TA CH A, HA RTZ, and TYM KOVICH, Circuit Judges.
Dale M ichael Lloyd Denney requests a certificate of appealability (COA) to

appeal the district court's denial of his motion for relief, which the district court
construed as an application for habeas relief under 28 U.S.C. 2241. He sought
modification of his Kansas state prison sentence, arguing that his due-process
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 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
rights were violated because (1) part of his sentence was not converted to a
determinate sentence, (2) the Kansas Sentencing Commission failed to obey a
court order requiring conversion of part of his sentence, (3) his sentence in one
case should be aggregated with his sentences in two unrelated cases, and (4)
Kansas failed to give him credit tow ard his sentence on one charge for excess
time served on an unrelated charge. In this court he also raises an equalprotection claim. The district court denied a COA. W e do likew ise and dismiss
the appeal.
BACKGROUND
In 1987 M r. Denney was convicted of aggravated burglary and rape, for
which he received indeterminate sentences (Case A). See State v. Denney, 101
P.3d 1257, 1259 (Kan. 2004). He served time from January 7, 1988, until his
parole on July 20, 1992. See id. On December 1, 1993, a jury found him guilty
of the commission in October 1992 of aggravated sexual battery, aggravated
criminal sodomy, and an aggravated weapons violation; he received indeterminate
sentences on the convictions (Case B). See id. The same jury also found him
guilty of aggravated criminal sodomy and aggravated sexual battery committed in
July 1993 (Case C); for these crimes he received a determinate sentence of 228
months, to run consecutively to his indeterminate sentences in Case B. See id. In
addition, M r. D enney's parole in Case A was revoked on April 15, 1994. See id.
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In response to a motion filed by M r. Denney in 2001, a state trial court

converted his sentence of 5 to 20 years in Case A to a determinate term of 36
months. See id. at 125960. Because M r. Denney had already served more than
36 months on this sentence, the Kansas D epartment of Corrections treated this
sentence as satisfied. See id. at 1260.
M r. Denney then filed a motion in Kansas state court claiming entitlement
to (1) a conversion to a determinate sentence for Case B and (2) credit, to be
applied to his sentences in Cases B and C, for time incarcerated in Case A beyond
36 months. Id. The Kansas Supreme Court rejected his claims. Id. at 1261. In
particular, the court rejected M r. Denney's claim to credit, saying [a] defendant
is not entitled to credit on a sentence for time which he has spent in jail upon
other, distinct, and wholly unrelated charges. Id. (quoting Campbell v. State,
575 P.2d 524 (1978)).
Next M r. Denney filed in the United States District Court for the District of
Kansas a pleading seeking relief. The district court construed his pleading as an
application under 28 U.S.C. 2241 because it was an attack on the execution of a
sentence rather than a challenge to the validity of a conviction or a sentence.
See M ontez v. M cKinna, 208 F.3d 862, 865 (10th Cir. 2000) (distinguishing
claims under 2241 and 2254). It then denied the motion on June 23, 2006,
and denied a motion for reconsideration on July 18.
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D ISC USSIO N
State prisoners seeking habeas relief under 2241 must obtain a COA to
appeal the denial of an application. See id. at 867. A COA will issue only if the
applicant has made a substantial showing of the denial of a constitutional right.
28 U.S.C. 2253(c)(2). This standard requires a demonstration that . . . includes
showing that reasonable jurists could debate whether (or, for that matter, agree
that) 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. M cDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted).
In other words, the applicant must show that the district court's resolution of the
constitutional claim was either debatable or wrong. Id.
M r. Denney's first three claims challenge the interpretation of state law by
state courts. Such claims are not cognizable on federal habeas review , for it is
not the province of a federal habeas court to reexamine state-court determinations
on state-law questions. Estelle v. M cGuire, 502 U.S. 62, 6768 (1991); see also
28 U.S.C. 2241(c)(3); M ontez, 208 F.3d at 865. W e recognize that M r. Denney
asserts a violation of due process, and a pro se litigant's pleadings should be
construed liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Nevertheless, courts should not assume the role of advocate for the pro se
litigant. Id. It is not for this court to make M r. D enney's arguments for him.
M r. Denney's bare assertion that he has been denied due process, without any
-4-
explanation of the legal basis for the claim, does not amount to a substantial
showing of the denial of a constitutional right. 28 U.S.C. 2253(c)(2); see
Dunn v. White, 880 F.2d 1188, 1198 (10th Cir. 1989). Accordingly, no
reasonable jurist could dispute the district court's denial of these claims.
M r. Denney similarly fails to support his claim that he was denied due
process when he was not given credit for excess time served on his Case A
sentence. He cites M eachum v. Fano, 427 U.S. 215 (1976), but that case held
only that transfer to a less desirable prison does not violate a prisoner's dueprocess rights when state law does not condition such a transfer on proof of
specific conduct or events, see id. at 22627. To the extent that M eachum may be
relevant, we note that the Kansas Supreme Court explicitly held that M r. Denney
had no state-law right to jail-time credit for time spent in prison on unrelated
charges. See Denney, 101 P.3d at 1261. M oreover, we are aware of no authority
supporting his constitutional claim. Indeed, at least one circuit court has held to
the contrary. See Holscher v. Young, 440 F.2d 1283, 1290 (8th Cir. 1971) (Due
process does not require that [the applicant] be credited with the time spent in
prison under the prior illegal conviction of a crime unrelated to the present
case.). As a result, no reasonable jurist could dispute the district court's denial
of this claim.
Finally, M r. Denney appears to raise an equal-protection claim in his
application to this court. W e need not consider whether this claim was presented
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in district court, because it clearly fails on the merits. M r. Denney proffers no

facts and cites no cases that support his contention; he has not identified how he
was treated differently from other similarly situated persons. See Penrod v.
Zavaras, 94 F.3d 1399, 1406 (10th Cir. 1996). A conclusory statement that he
has been denied equal protection does not amount to a substantial showing of the
denial of a constitutional right. 28 U.S.C. 2253(c)(2); see Dunn, 880 F.2d at
1198. Thus, regardless of whether the district court was presented with
M r. D enney's equal-protection claim, the claim is meritless. See Davis v.
Roberts, 425 F.3d 830, 834 (10th Cir. 2005) (court may deny a COA for any
reason adequately supported by the record).
W e DENY M r. D enney's application for a COA and DISM ISS the appeal.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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F I L E D

United States Court of Appeals

September 28, 2006

RAY ROBERTS, W arden, El Dorado

(D.C. No. 05-CV-3012-W EB)

OR DER DENY ING CERTIFICATE O F APPEALABILITY *

Before TA CH A, HA RTZ, and TYM KOVICH, Circuit Judges.

Dale M ichael Lloyd Denney requests a certificate of appealability (COA) to

In response to a motion filed by M r. Denney in 2001, a state trial court

in district court, because it clearly fails on the merits. M r. Denney proffers no

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