Colo. D.C. No. 1:19-CV-02191-LTB-GPG
BRISCOE, McHUGH, and MORITZ, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Beck Briscoe, Circuit Judge
and appellant, Steven Brent Maurer, a Colorado state prisoner
proceeding pro se, seeks a Certificate of
Appealability (COA) in order to appeal the district
court's denial of his petition under 28 U.S.C. §
2241. We deny his request for a COA.
Maurer is a prisoner in the custody of the Colorado
Department of Corrections. His § 2241 petition asserts
that he is being denied due process because he is subject to
an unlawful detainer issued by the Idaho Department of
Corrections that "is preventing the progression to a
lower custody facility and elig[ibi]lity to go to a half-way
house." ROA at 5. While Mr. Maurer's petition does
not provide specific information regarding the detainer, he
does allege that he has filed a "Motion to Enter Plea by
Mail/Disposition by Mail" in Idaho state court pertinent
to the detainer, and Mr. Maurer attached a copy of that
motion to his petition. Id. at 9. In that motion,
Mr. Maurer indicates he is willing to plead guilty to an
Idaho parole violation charge. Id. The relief Mr.
Maurer seeks in his petition is for the court "to vacate
the detainer due to its burden and prejudice in allowing
progression while in custody in the Colorado Department of
Corrections." Id. at 7.
magistrate judge construed Mr. Maurer's claim liberally
as being asserted pursuant to the Interstate Agreement on
Detainers Act (IADA) and concluded the claim lacked merit
because the IADA does not apply to detainers based upon
parole violations. Id. at 14 (citing Carchman v.
Nash, 473 U.S. 716, 727-28 (1985)). The magistrate judge
also noted that Mr. Maurer is not entitled to a parole
revocation hearing until he is taken into custody by the
paroling authority and that the adverse consequences he faces
as a result of the Idaho detainer do not trigger any due
process concerns. Id. (citing McDonald v. New
Mexico Parole Bd., 955 F.2d 631, 633-64 (10th Cir.
Maurer objected to the magistrate judge's recommendation,
contending that he is asserting a due process claim rather
than a claim under the IADA and that McDonald is
distinguishable because he "is entitled to conditional
liberty created by the removal of the unlawful
detainer." Id. at 16-17. The district court
overruled Mr. Maurer's objections, concluding that Mr.
Maurer failed to demonstrate that McDonald is
distinguishable or that his due process claim has merit.
Id. at 21. The district court adopted the magistrate
judge's recommendation, denied Mr. Maurer's §
2241 petition, and dismissed the action. Id. The
district court also denied a COA and in forma
pauperis status on appeal, certifying that any appeal
from the dismissal would not be taken in good faith.
Id. at 21-22. Mr. Maurer timely filed a notice of
obtain appellate review of the district court's dismissal
of his petition, Mr. Maurer must acquire a COA. Montez v.
McKinna, 208 F.3d 862, 869 (10th Cir. 2000). To acquire
a COA, Mr. Maurer must make a "substantial showing of
the denial of a constitutional right." 28 U.S.C. §
2253(c)(2). Specifically, he must demonstrate "that
reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong." Slack v. McDaniel, 529 U.S. 473, 484
(2000). Even construing Mr. Maurer's pro se
request liberally, see Childs v. Miller, 713 F.3d
1262, 1264 (10th Cir. 2013), we conclude that he has failed
to make this showing.
Maurer concedes on appeal that the IADA "does not
provide relief" but persists in his argument that
"the detainer must be removed due to the due process
being violated." Aplt. Br. at 3. Mr. Maurer claims that
"[t]he detainer violated [his] right to liberty and
parole with fair notice of the detainer and a remedy to
dispose of the detainer being
than attempting to distinguish McDonald, Mr. Maurer
now cites McDonald to argue that his "liberty
interest[s]" were violated. Id. But
McDonald rejected the precise argument Mr. Maurer
makes here, holding that a petitioner's right to a parole
revocation hearing and other "due process
safeguards" do not attach until the petitioner's
intervening sentence has been completed, and he has been
taken into custody by the paroling authority. 955 F.2d at
633-64. McDonald explained,
The hearing requirements and time limitations must be adhered
to only after the parolee is taken into a custody as
a parole violator. New Mexico[, the paroling authority, ] did
not execute the warrant, and Petitioner[, a Texas state
prisoner, ] was not taken into custody by the New Mexico
authorities. Until he is, he has not been deprived of a
liberty interest by New Mexico state action, and is not
entitled to the due process safeguards set forth in
Morrissey [v. Brewer, 408 U.S. 471 (1972)].
Id. (emphasis added) (citation omitted). Mr. Maurer
has not been taken into custody by the Idaho authorities.
Thus, he has not been deprived of a liberty interest by Idaho
state action and is not entitled to ...