Filed: Dec. 02, 2008
Latest Update: Feb. 21, 2020
Summary: FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS December 2, 2008 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court STEVEN A. GILKEY, Petitioner - Appellant, No. 08-3203 v. (D.C. No. 5:07-CV-03110-SAC) (D. Kan.) KANSAS PAROLE BOARD; LOUIS E. BRUCE, Respondents - Appellees. ORDER DENYING CERTIFICATE OF APPEALABILITY Before TACHA, KELLY, and McCONNELL, Circuit Judges. Steven A. Gilkey, an inmate appearing pro se, seeks to appeal from the district court’s denial of
Summary: FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS December 2, 2008 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court STEVEN A. GILKEY, Petitioner - Appellant, No. 08-3203 v. (D.C. No. 5:07-CV-03110-SAC) (D. Kan.) KANSAS PAROLE BOARD; LOUIS E. BRUCE, Respondents - Appellees. ORDER DENYING CERTIFICATE OF APPEALABILITY Before TACHA, KELLY, and McCONNELL, Circuit Judges. Steven A. Gilkey, an inmate appearing pro se, seeks to appeal from the district court’s denial of ..
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FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 2, 2008
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
STEVEN A. GILKEY,
Petitioner - Appellant,
No. 08-3203
v. (D.C. No. 5:07-CV-03110-SAC)
(D. Kan.)
KANSAS PAROLE BOARD; LOUIS
E. BRUCE,
Respondents - Appellees.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before TACHA, KELLY, and McCONNELL, Circuit Judges.
Steven A. Gilkey, an inmate appearing pro se, seeks to appeal from the
district court’s denial of his federal habeas petition, 28 U.S.C. § 2241. Mr.
Gilkey challenged the Kansas Parole Board’s (KPB) decision to deny him parole
and to delay further parole consideration for three years. The district court also
dismissed other claims without prejudice. He contends that the denial was based
on improper considerations: his history of substance abuse and his disability
which requires a back operation. According to Mr. Gilkey, the denial violates his
rights under the Constitution and the Americans with Disabilities Act (ADA), 42
U.S.C. §§ 12101-12213. Mr. Gilkey sought state habeas relief, which the state
courts denied. Gilkey v. Kan. Parole Bd.,
147 P.3d 1096 (Kan. Ct. App. 2006)
(Table).
A challenge to the execution of a state sentence is considered under 28
U.S.C. § 2241. See Montez v. McKinna,
208 F.3d 862, 865 (10th Cir. 2000).
Under § 2241, a writ of habeas corpus may extend to a prisoner “in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2241(c)(3). To appeal from the denial of the petition, Mr. Gilkey needs a
certificate of appealability (COA). 28 U.S.C. § 2253(c)(1)(A). This requires that
he make “a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). He must demonstrate that the issues raised are debatable among
jurists, or that jurists could conclude that the questions deserve further
proceedings. Miller-El v. Cockrell, 537 U.S 322, 327 (2003).
After considering the district court’s resolution, and giving due deference
to the state court’s resolution of the federal constitutional claims, Henderson v.
Scott,
260 F.3d 1213, 1215 (10th Cir. 2001), we conclude that the resolution of
Mr. Gilkey’s claims is not reasonably debatable. For substantially the reasons set
forth in the district court’s order, 1 R. Doc. 18,
We DENY a COA and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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