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    Hickam v. Janecka, 10th Cir. (2008)

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    This order denies Gerald Hickam's application for a certificate of appealability to challenge the district court's denial of his habeas petition. Hickam, who was convicted of felony murder in Colorado in 1982 and is incarcerated in New Mexico, claimed his due process rights were violated when the Colorado Parole Board denied him parole in 2001, 2004, and 2007 without sufficiently listing the bases for denial. The order explains that for class 1 felonies like Hickam's, Colorado law gives the parole board full discretion to grant or deny parole, so Hickam has no liberty interest or right to parole. Reasonable jurists could not debate that Hickam failed to present a valid due process claim, so the application for a certificate of appeal

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    Hickam v. Janecka, 10th Cir. (2008)

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    This order denies Gerald Hickam's application for a certificate of appealability to challenge the district court's denial of his habeas petition. Hickam, who was convicted of felony murder in Colorado in 1982 and is incarcerated in New Mexico, claimed his due process rights were violated when the Colorado Parole Board denied him parole in 2001, 2004, and 2007 without sufficiently listing the bases for denial. The order explains that for class 1 felonies like Hickam's, Colorado law gives the parole board full discretion to grant or deny parole, so Hickam has no liberty interest or right to parole. Reasonable jurists could not debate that Hickam failed to present a valid due process claim, so the application for a certificate of appeal

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    Filed: 2008-06-10 Precedential Status: Precedential Docket: 08-2037

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    This order denies Gerald Hickam's application for a certificate of appealability to challenge the district court's denial of his habeas petition. Hickam, who was convicted of felony murder in Colorado in 1982 and is incarcerated in New Mexico, claimed his due process rights were violated when the Colorado Parole Board denied him parole in 2001, 2004, and 2007 without sufficiently listing the bases for denial. The order explains that for class 1 felonies like Hickam's, Colorado law gives the parole board full discretion to grant or deny parole, so Hickam has no liberty interest or right to parole. Reasonable jurists could not debate that Hickam failed to present a valid due process claim, so the application for a certificate of appeal

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    16 views4 pages

    Hickam v. Janecka, 10th Cir. (2008)

    Uploaded by

    Scribd Government Docs
    This order denies Gerald Hickam's application for a certificate of appealability to challenge the district court's denial of his habeas petition. Hickam, who was convicted of felony murder in Colorado in 1982 and is incarcerated in New Mexico, claimed his due process rights were violated when the Colorado Parole Board denied him parole in 2001, 2004, and 2007 without sufficiently listing the bases for denial. The order explains that for class 1 felonies like Hickam's, Colorado law gives the parole board full discretion to grant or deny parole, so Hickam has no liberty interest or right to parole. Reasonable jurists could not debate that Hickam failed to present a valid due process claim, so the application for a certificate of appeal

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    FILED

    United States Court of Appeals


    Tenth Circuit

    UNITED STATES COURT OF APPEALS


    TENTH CIRCUIT

    June 10, 2008

    Elisabeth A. Shumaker
    Clerk of Court

    GERALD L. HICKAM,
    Petitioner - Appellant,
    v.
    JAMES JANECKA, Warden;
    ATTORNEY GENERAL FOR THE
    STATE OF NEW MEXICO,

    No. 08-2037
    (D. Ct. No. 1:06-CV-01132-JB-RLP)
    (D. N. Mex.)

    Respondents - Appellees.

    ORDER
    DENYING CERTIFICATE OF APPEALABILITY

    Before TACHA, KELLY, and McCONNELL, Circuit Judges.

    Petitioner-Appellant Gerald L. Hickam seeks a certificate of appealability


    (COA) to challenge the district courts denial of his petition for habeas relief pursuant
    to 28 U.S.C. 2241.1 We DENY a COA and therefore dismiss this appeal.
    In 1982, Mr. Hickam was convicted of felony murder in Colorado state court, a
    class 1 felony, and sentenced to life in prison. He was subsequently granted an interstate
    transfer to a New Mexico correctional facility. After 20 years of incarceration, Mr.

    As the magistrate noted, in earlier proceedings both parties referred to the action
    as a 2254 action, but because it is an attack on the execution of the sentence it is
    properly characterized as a proceeding under 2241.

    Hickam first became eligible for and was denied parole in 2001. He was also denied
    parole again in 2004 and 2007. After exhausting state court remedies, Mr. Hickam filed
    this 2241 petition for federal habeas relief in the United States District Court for the
    District of New Mexico, arguing that his due process rights were violated when the
    Colorado Parole Board did not sufficiently list the bases for his parole denial. The district
    court denied the petition and his application for a COA. Mr. Hickam then filed this
    appeal and renewed motion for a COA.
    A petitioner may not appeal the denial of habeas relief under 28 U.S.C. 2241
    unless a COA is granted. 28 U.S.C. 2253(c)(1)(A). We will issue a COA only if the
    applicant has made a substantial showing of the denial of a constitutional right. Id.
    2253(c)(2). This standard requires the petitioner to demonstrate 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. McDaniel, 529 U.S. 473, 484 (2000)
    (quotation marks omitted).
    Under Colorado law, for crimes committed on or after July 1, 1979 but before July
    1, 1985, there is mandatory parole with the exception of a few types of convictions. See
    Jackson v. Zavaras, 963 P.3d 1118, 111819 (Colo. 1998). Specifically, for a class 1
    felony the parole board has the sole power to grant or refuse to grant parole and to fix
    the condition thereof and has full discretion to set the duration of the term of parole
    granted. See Colo. Rev. Stat. 17-2-201(5)(a) (1986); Jackson, 963 P.3d at 1119.
    -2-

    Mr. Hickam argues that he has a liberty interest in the expectancy of parole, and
    that he was denied procedural due process when the board failed to adequately list the
    evidence relied on and basis for refusing to grant parole. There is generally no
    constitutional right to release before the expiration of a valid sentence. See Greenholtz v.
    Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 7 (1979). A state statute may,
    however, create a liberty interest when the statutes language and structure sufficiently
    limits the discretion of a parole board. Boutwell v. Keating, 399 F.3d 1203, 1213 (10th
    Cir. 2005).
    While Colorados parole scheme limits the boards discretion to grant parole for
    most offenses committed between 1979 and 1985, with respect to class 1 felonies the
    board has the sole power to refuse or grant parole. For those offenses the boards
    discretion is in no way limited. The statute therefore fails to create a liberty interest in the
    expectancy of parole. Because there is no liberty interest in the parole hearing, we need
    not address Mr. Hickams claim that the board did not give sufficient reasons to support
    its decision.

    -3-

    Reasonable jurists could not debate that Mr. Hickam has failed to present a claim
    that he was denied procedural due process. We therefore DENY his application for a
    COA on this issue.

    ENTERED FOR THE COURT,

    Deanell Reece Tacha


    Circuit Judge

    -4-

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