April 5, 2022 Christopher M. Wolpert Clerk of Court UNITED STATES COURT OF APPEALS… v. Colorado State Board of Parole

FILED
United States Court of Appeals
Tenth Circuit
April 5, 2022
Christopher M. Wolpert
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
HUNTER ADAM MELNICK,
Petitioner - Appellant,
v.
COLORADO STATE BOARD OF
PAROLE,
Respondent - Appellee.
No. 22-1035
(D.C. No. 1:21-CV-00908-CMA)
(D. Colo.)
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before PHILLIPS, MURPHY, and EID, Circuit Judges.
Hunter Melnick, a Colorado state prisoner proceeding pro se, seeks
permission to appeal the district court’s denial of his 28 U.S.C. § 2241 petition.
The matter is before this court on his 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
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under § 2241). Because Melnick 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”).
Melnick is serving an indeterminate sentence of three years to life with the
Colorado Department of Corrections pursuant to his conviction for sexual assault.
See Colo. Rev. Stat. §18-3-402(1)(a). The record reveals that Melnick has been
released on parole several times and, each time, that parole has been revoked. In
his § 2241 petition, Melnick sets out two claims. First, he asserts an entitlement
to a new parole hearing based on the allegedly improper decision of the Colorado
Parole Board (“CPB”) to defer his parole consideration for six months, from
March of 2021 to September of 2021. The district court concluded Melnick’s
claimed entitlement to a new parole hearing became moot when the CPB gave him
a parole hearing in September of 2021. Second, Melnick asserted the CPB’s
decision to defer his parole application until September 2021 was arbitrary and
capricious, in violation of the Due Process clause. In denying this claim, the
district court noted that under Colorado’s discretionary parole system, in general
and as specifically applied to prisoners sentenced under Colorado’s Sex Offender
Lifetime Supervision Act, parole denials do not implicate due process unless the
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decision is so arbitrary and capricious as to amount to a constitutional violation.
See Schuemann v. Colo. State Bd. of Adult Parole, 624 F.2d 172, 173 (10th Cir.
1980). The district court concluded Melnick’s claim failed to satisfy that
standard because the CPB rationally relied on the inadequacy of Melnick’s parole
plan and Melnick’s impending placement in specialized sex-offender treatment in
deferring his parole hearing until September of 2021. Melnick seeks a COA to
challenge the district court’s rulings.
A COA may issue if Melnick “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
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. Melnick 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).
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The district court’s resolution of Melnick’s § 2241 petition is not
reasonably subject to debate. To the extent his appellate brief raises the issue, no
reasonable jurist would doubt the correctness of the district court’s decision that
the provision of a parole hearing in September of 2021 mooted Melnick’s request
for a new hearing. Likewise, the district court’s decision that the CPB rationally
deferred Melnick’s parole hearing from March to September of 2021 is not
reasonably subject to debate. As noted by the district court, the inadequacy of a
prisoner’s parole plan and the upcoming availability of specialized sex-offender
treatment are well-recognized considerations in making predictive parole
decisions. This is particularly true given Melnick’s lack of success in previous
attempts at parole and the sexual-deviancy based reasons for the previous parole
failures.1
1On appeal, Melnick’s entire argument as to the merits of the CPB’s
decision to defer his parole consideration from March to September 2021 is based
on the alleged failure of the CPB to engage with all of the factors set out in Colo.
Rev. Stat. § 17-22.5-404(4). Even if this assertion were true, it would not state a
valid entitlement to habeas relief. As the Supreme Court, this court, and the
Colorado courts have made clear, grant or denial of parole in Colorado rests
entirely within the discretion of the CPB. See Sutton v. Mikesell, 810 F. App’x
604, 611-12 (10th Cir. 2020) (collecting cases) (unpublished disposition cited
solely for its persuasive value); Colo. Rev. Stat. § 17-22.5-403(7)(a) (vesting the
CPB with discretion to determine whether an offender should be granted
discretionary parole). Thus, based on any mix of factors set out in
§ 17-22.5-404(4), or any other factors it so chooses, the CPB can grant or deny
parole. Sutton, 810 F. App’x at 611-12 (citing Colorado case law and statutes for
the proposition that discretionary parole “‘is a privilege, not a right,’ and that ‘the
(continued...)
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For those reasons set out above, Melnick has not made a substantial
showing of the denial of a constitutional right. Accordingly, this court DENIES
his request for a COA and DISMISSES this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
1(...continued)
parole board has the ultimate discretion to grant or deny parole based on the
totality of the circumstances, including but not limited to the factors set forth in
section 17–22.5–404(4)’”).
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