Colo.) (D.C. No. 1:18-CV-02925-WJM)
HOLMES, MURPHY, and CARSON, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Michael R. Murphy, Circuit Judge.
Sardakowski, a Colorado state prisoner serving an
eighteen-year sentence for child abuse and a four-year
sentence for assault in the second degree, filed an
application for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241 on November 11, 2018. In the application,
Sardakowski alleged the Colorado Parole Board's
("CPB") decision to deny him parole was made in
violation of the Americans with Disabilities Act and, thus,
violated the Fourteenth Amendment. He also alleged the CPB
violated his due process rights by denying him parole based
on his lack of housing and failing to properly consider his
risk of reoffending.
considering CPB's response, the district court denied
Sardakowski's § 2241 application. As to
Sardakowski's Fourteenth Amendment claim, the court
concluded the CPB did not categorically deny parole based on
Sardakowski's mental disabilities. See Thompson v.
Davis, 295 F.3d 890, 896, 898 (9th Cir. 2002)
(recognizing the applicability of Title II of the ADA to
state parole decisions). Instead, the court concluded, the
CPB's decision was an individualized determination based
on the severity and circumstances of the offense conduct, the
lack of a suitable parole plan, and Sardakowski's failure
to take his psychiatric medication. As to Sardakowski's
procedural due process claim, the district court first
concluded that Sardakowski does not have an entitlement to
parole under Colorado's discretionary parole scheme and,
thus, his claim failed. See Greenholtz v. Inmates of Neb.
Penal and Corr. Complex, 442 U.S. 1, 7 (1979) (holding
the Constitution does not create a protected liberty interest
in a prisoner's release prior to the expiration of a
valid sentence); Straley v. Utah Bd. of Pardons, 582
F.3d 1208, 1214 (10th Cir. 2009) (holding a state inmate
"has no federal right to release on parole" when
the state parole board has "complete discretion in
making parole decisions"); Thiret v. Kautzky,
792 P.2d 801, 805 (Colo. 1990) (holding that Colorado inmates
are subject to a discretionary parole system unless their
offense of conviction was committed between July 1, 1979, and
June 30, 1985). The court further concluded that the
CPB's decision did not result in an "abridgement of
Sardakowski's constitutional rights." Wildermuth
v. Furlong, 147 F.3d 1234, 1236 (10th Cir. 1998)
(quotation omitted) ("Where the denial of parole rests
on one constitutionally valid ground, the Board's
consideration of an allegedly invalid ground would not
violate a constitutional right." (quotation and
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." Id. § 2253(c)(2).
To satisfy this standard, Sardakowski must demonstrate
"that jurists of reason could disagree with the district
court's resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further." Miller-El
v. Cockrell, 537 U.S. 322, 327 (2003).
court has reviewed Sardakowski's application for a COA
and appellate brief, the district court's order, and the
entire record on appeal pursuant to the framework set out by
the Supreme Court in Miller-El and concludes
Sardakowski is not entitled to a COA. The district
court's resolution of Sardakowski's claims is not
reasonably subject to debate and the claims are not adequate
to deserve further proceedings. Accordingly, Sardakowski is
not entitled to a COA. 28 U.S.C. § 2253(c)(2).
court denies Sardakowski's request for a
COA and dismisses this appeal.
Sardakowski's motion to proceed in forma
pauperis on appeal is granted.
In reaching this decision, the district
court necessarily interpreted Wildermuth as
permitting a state inmate to raise a substantive due process
claim without identifying a liberty interest in parole.
Because reasonable jurists could not debate the court's
resolution of such claim, assuming it exists, it is ...