Simpson v. Chrisman, 10th Cir. (2014)

FILED
United States Court of Appeals

Tenth Circuit
April 24, 2014

UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT
Clerk of Court
MICHAEL LAROY SIMPSON,

Petitioner - Appellant,
v.
JERRY CHRISMAN,
No. 13-7081
(D.C. No. 6:13-CV-00046-JHP-KEW)
(E.D. Okla.)
Respondent - Appellee.
ORDER DENYING CERTIFICATE

OF APPEALABILITY
Before GORSUCH, MURPHY, and HOLMES, Circuit Judges.
Michael Simpson, an Oklahoma state prisoner proceeding pro se, seeks

permission to appeal the district courts denial of his 28 U.S.C. 2241 petition.
The matter is before this court on Simpsons request for a certificate of
appealability (COA). See 28 U.S.C. 2253(c)(1)(A) (providing no appeal may
be taken from a final order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court unless the petitioner
first obtains a COA); Montez v. McKinna, 208 F.3d 862, 869 (10th Cir. 2000)
(holding 2253(c)(1)(A)s requirements apply when a state habeas petitioner is
proceeding under 2241). Because Simpson has not made a substantial showing
of the denial of a constitutional right, this court denies his request for a COA
and dismisses this appeal. 28 U.S.C. 2253(c)(2) (providing a COA may issue
. . . only if the applicant has made a substantial showing of the denial of a
constitutional right).
In his 2241 petition, Simpson asserts Oklahoma violated the Ex Post
Facto Clause of the United States Constitution when, subsequent to his
conviction, it altered how frequently he was considered for parole eligibility. 1
The district court concluded Simpson had not properly exhausted his state judicial
remedies as to any aspect of these claims. It nevertheless denied the petition on
the merits, concluding the limitations period set out in 2244(d) began running
no later than 2004, when it became clear Simpson would no longer be entitled to
personally appear before the parole board on a yearly basis.
A COA may issue if Simpson has made a substantial showing of the denial
of a constitutional right. 28 U.S.C. 2253(c)(2). To make this showing, he
must demonstrate that reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or
As the district court correctly noted, the third claim set out in Simpsons
2241 petition challenges the validity of his conviction, rather than the execution
of his sentence. On appeal, Simpson explicitly disclaims any intent to challenge
the validity of his conviction and asserts he is only challenging the changes
Oklahoma made to its parole procedures after his conviction. Thus, we consider
Simpson to have explicitly waived the third claim in his 2241 petition. In any
event, it is absolutely clear any relief on claim three is barred by the one-year
limitations period set out in 28 U.S.C. 2244(d), as Simpsons conviction became
final in 1996.
-2-
that the issues presented were adequate to deserve encouragement to proceed

further. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotation omitted). In
evaluating a request for a COA, it is not the role of this court to engage in a full
consideration of the factual or legal bases adduced in support of the claims. Id.
Instead, this court undertakes a preliminary, though not definitive, consideration
of the [legal] framework applicable to each claim. Id. at 338. Simpson is not
required to demonstrate his appeal will succeed to be entitled to a COA. He must,
however, prove something more than the absence of frivolity or the existence of
mere good faith. Id. (quotations omitted).
The district courts resolution of this case is indisputably correct. A court
may deny a 2241 application on the merits without resolving the exhaustion
question. Montez, 208 F.3d at 866. Furthermore, this court has consistently
rejected the application of the continuing violations theory to challenges to the
very Oklahoma statutes at issue in Simpsons 2241 petition. See, e.g., Ford v.
Jenks, 262 F. Appx 94, 96 (10th Cir. 2008); Jones v. Henry, 260 F. Appx 130,
131 (10th Cir. 2008); Traylor v. Jenks, 223 F. Appx 789, 790-91 (10th Cir.
2007); see also Brown v. Ga. Bd. Of Pardons & Paroles, 335 F.3d 1259, 1262
(11th Cir. 2003) ([S]uccessive denials of parole do not involve separate factual
predicates and therefore do not warrant separate statute-of-limitations
calculations.). In any event, this court has previously determined that the
relevant changes in Oklahoma law which extended from one year to three years
-3-
the period of time that may elapse for parole eligibility determinations did not
violate the Ex Post Facto Clause. Henderson v. Scott, 260 F.3d 1213, 1215 (10th
Cir. 2001). For these reasons, the district courts resolution of Simpsons petition
is not reasonably subject to debate and the claims he seeks to raise on appeal are
not adequate to deserve further proceedings. 2 Accordingly, Simpson has not
made a substantial showing of the denial of a constitutional right and is not
entitled to a COA. 28 U.S.C. 2253(c)(2).
This court DENIES Simpsons request for a COA and DISMISSES this
appeal. All pending motions are hereby DENIED.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
Given that Simpsons 2241 petition lacked merit, the district court did
not abuse its discretion in denying Simpsons motion for default judgment.
Harvey v. United States, 685 F.3d 939, 945 (10th Cir. 2012) (We review a
district courts denial of a motion for default judgment for abuse of discretion.).
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FILED

United States Court of Appeals

April 24, 2014

MICHAEL LAROY SIMPSON,

ORDER DENYING CERTIFICATE

Before GORSUCH, MURPHY, and HOLMES, Circuit Judges.

Michael Simpson, an Oklahoma state prisoner proceeding pro se, seeks

that the issues presented were adequate to deserve encouragement to proceed

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