FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                                March 20, 2012
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                 Clerk of Court
                                TENTH CIRCUIT



 ALVIN PARKER,

              Petitioner - Appellant,                  No. 11-6312
       v.                                            W.D. Oklahoma
 JANE STANDIFIRD, Warden,                      (D.C. No. 5:10-CV-01395-D)

              Respondent - Appellee.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before MURPHY, EBEL, and HARTZ, Circuit Judges.




      Alvin Parker, an Oklahoma state prisoner serving a 199-year sentence for

second degree murder, filed an application for a writ of habeas corpus pursuant to

28 U.S.C. § 2241 on December 29, 2010. In the application, Parker alleged the

Oklahoma Pardon and Parole Board’s (“OPPB”) decision to deny him parole

violated his Fourteenth Amendment equal protection rights. After a federal

magistrate judge recommended denying Respondent’s motion to dismiss the

application, both Respondent and Parker filed timely written objections. The
district court granted Respondent’s motion, concluding Parker failed to state a

cognizable equal protection claim. 1

      Parker now seeks a certificate of appealability (“COA”) to enable him to

appeal the district court’s denial of his § 2241 application. See 28 U.S.C.

§ 2253(c)(1)(A). This court will issue a COA “only if the applicant has made a

substantial showing of the denial of a constitutional right.” 

To

satisfy this standard, Parker must demonstrate “that jurists of reason could

disagree with the district court’s resolution of his constitutional claims or that



      1
         As part of its analysis, the district court concluded Parker’s allegations
were not sufficient to state a “class-of-one” equal protection claim because he
failed to allege facts establishing he was similarly situated in all material respects
to the paroled inmates to whom he compared himself. See Kan. Penn Gaming,
LLC v. Collins, 

, 1216 (10th Cir. 2011); Jicarilla Apache Nation v.
Rio Arriba County, 

, 1212-13 (10th Cir. 2006). In his appellate
brief, Parker presents two clearly contradictory arguments. First, he argues the
district court erred by applying the class-of-one analysis to his equal protection
claim because that theory is no longer viable in the parole context. Cf. Engquist
v. Oregon Dep’t of Agric., 

, 603 (2008) (holding class-of-one equal
protection claim is not cognizable in the public employment context because
“some forms of state action . . . by their nature involve discretionary
decisionmaking based on a vast array of subjective, individualized assessments”).
Parker, however, also argues the district court abused its discretion by not
permitting him to amend his habeas application to add factual allegations that
support a class-of-one claim. In light of Parker’s position that the class-of-one
theory is not available to him, he has effectively conceded that amendment could
not cure the class-of-one shortcomings with his § 2241 application and thus the
district court did not abuse its discretion by failing to permit him to amend it. See
Sutton v. Utah State Sch. for the Deaf & Blind, 

, 1236 (10th Cir.
1999) (“A 12(b)(6) motion should not be granted unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief.” (quotation omitted)).

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jurists could conclude the issues presented are adequate to deserve encouragement

to proceed further.” Miller-El v. Cockrell, 

, 327 (2003).

      In his appellate brief, Parker argues the district court erroneously

concluded he failed to identify the characteristic(s) upon which the alleged

differential treatment was based. Parker asserts his § 2241 habeas application

fairly presents a claim that he was treated differently than paroled inmates

convicted of murder whose victims were not police officers. Because Parker does

not claim to be a member of a suspect class, he cannot prevail on his equal

protection claim unless he ultimately proves that “the distinction between himself

and other inmates was not reasonably related to some legitimate penological

purpose.” Templeman v. Gunter, 

, 371 (10th Cir. 1994). Parker has

alleged no facts that, if true, would entitle him to relief on his equal protection

claim. His sole support for the claim is the conclusory statement in his habeas

application that “there is no rational relation between the dissimilar treatment and

any legitimate penal interest.” This is a conclusion of law, unsupported by any

factual allegations and thus not entitled to a presumption of truth. See Kan. Penn

Gaming, LLC v. Collins, 

, 1219 (10th Cir. 2011). Parker’s

allegation that he has been incarcerated longer than inmates convicted of first

degree murder, even if true, provides no factual support for the legal basis of his

equal protection claim, i.e., that any difference in treatment is not related to a

legitimate penological purpose but is, instead, the result of unlawful

                                          -3-
discrimination. See Ashcroft v. Iqbal, 

, 1952 (2009); 

.

      This court has reviewed Parker’s application for a COA and appellate brief,

the district court’s order, the magistrate judge’s report and recommendation, and

the entire record on appeal pursuant to the framework set out by the Supreme

Court in Miller-El and concludes Parker is not entitled to a COA. The district

court’s resolution of Parker’s equal protection claim is not reasonably subject to

debate and the claim is not adequate to deserve further proceedings. Accordingly,

Parker is not entitled to a COA. 28 U.S.C. § 2253(c)(2).

      This court denies Parker’s request for a COA and dismisses this appeal.

Parker’s motion to proceed in forma pauperis on appeal is granted.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




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