CHESTER L. BIRD, Petitioner - Appellant,
WYOMING ATTORNEY GENERAL; MICHAEL PACHECO, Wyoming Department of Corrections State Penitentiary Warden, Respondents - Appellees.
No. 2:16-CV-00320-NDF, D. Wyo.
BRISCOE, HARTZ, and BACHARACH, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
L Hartz, Circuit Judge
Bird seeks a certificate of appealability (COA) to challenge
the dismissal of his application for relief under 28 U.S.C.
§ 2241 by the United States District Court for the
District of Wyoming. See Montez v. McKinna, 208 F.3d
862, 867 (10th Cir. 2000) (requiring COA to appeal a denial
of § 2241 relief). Because Mr. Bird does not make a
substantial showing of the denial of a constitutional right,
we deny his request for a COA.
Bird was sentenced in 1994 to two concurrent life sentences
in the custody of the Wyoming Department of Corrections.
Because of his life sentence, he is ineligible for parole.
See Wyo. Stat. Ann. § 7-13-402(a).
Nevertheless, legislation passed in 2010 mandates that 10% of
his prison-work income be placed in a personal savings
account to be distributed upon parole or discharge.
See Wyo. Stat. Ann. § 7-16-205(a)(i). The only
prisoners exempt from mandatory savings are those serving a
sentence of death or life without the possibility of parole.
See id. Although prisoners serving a life sentence
and those serving a sentence of life without the possibility
of parole are both ineligible for parole, prisoners with a
life sentence (such as Mr. Bird) may have their sentences
commuted. See Bird v. Wyo. Bd. of Parole, 382 P.3d
56, 62 (Wyo. 2016). Both types of prisoners may be pardoned.
Bird filed suit in state court in 2015 seeking a declaratory
judgment that, among other things, he should not be denied
parole eligibility while he is statutorily required to save
money for use upon release from prison. He argued that the
new mandatory-savings statute repealed the statute that
forecloses parole eligibility to life-sentence prisoners
because it implied that a person paying into such an account
could be released from prison. Characterizing this argument
as raising an equal-protection claim and a
statutory-interpretation claim, the state district court
dismissed the complaint, concluding that Mr. Bird is
similarly situated to others subject to the mandatory-savings
statute because he may be released after commutation just as
term-of-years prisoners may be released on parole. Mr. Bird
also argued that requiring life-sentence prisoners to save
money to help facilitate their release from incarceration is
a violation of equal protection because, unlike the
term-of-years prisoners, they are unlikely ever to be
released. The court dismissed this claim because, although
the likelihood is small, life-sentence prisoners may be
released through commutation of a life sentence to a term of
Bird appealed to the Wyoming Supreme Court. In his pro se
brief to that court he first argued that, as a matter of
statutory interpretation, the mandatory savings statute made
him eligible for parole. He then continued:
The repugnancy of [the statute mandating savings and the
statute making life prisoners ineligible for parole] arises
under the doctrine of equal protection of the Fourteenth
Amendment to the Constitution of the United States . . . .
On its face, Wyoming Statute Annotated § 7-16-205(a)(i)
prescribes that life sentenced prisoners are similarly
situated to "release-eligible" (term of years)
prisoners, but only to the extent that it requires a savings
account. Otherwise a life sentence prisoner does not receive
any other benefits afforded a "release-eligible"
Aplt. App. Vol. 1 at 49. Later the brief concluded:
In summary, however, the District Court and the Appellees
contend that a life sentenced prisoner, like Bird, is not
parole/release-eligible, except to the extent "that the
legislature intended for the Department of Corrections to
maintain a fund" and he is not parole/release-eligible
until his sentence is actually commuted or pardoned by the
Governor. This position is clearly contrary to the
Constitution under Reedy and
Jones and the State simply cannot have it both
Aplt. App. Vol. 1 at 53.
Wyoming Supreme Court affirmed. It said that the
mandatory-savings statute appropriately provides for the
"remote contingency" of a commuted life sentence
even for life-sentence prisoners like Mr. Bird who are not
eligible for parole. Bird, 382 P.3d at 64-65. Noting
that "[l]ife without parole sentences are reserved for
the most egregious crimes, " it said that "those
sentenced to life according to law [have] better prospects
for eventual release" and that requiring them to set
aside money serves "a legitimate state interest in
providing incentive to prisoners for good behavior that would
enhance the possibility of leaving the prison system before
the end of their lives." Id. at 63. Hence,
there is "a rational basis for treating the two
categories of life-sentenced prisoners differently with
respect to the prisoner savings requirement, " and there
was no equal-protection violation in requiring Mr. Bird to
save for the unlikely contingency of his release even though
the life-without-parole prisoners were not required to save.
Id. The court also held that the statute that
forecloses life-sentence prisoners from parole eligibility
does not violate equal protection because life-sentence
prisoners are not "similarly situated" to
term-of-years prisoners in that they have no vested right in
ever being released. See id. at 63, 65.
December 30, 2016, Mr. Bird filed his application for relief
under § 2241. Construed liberally, see Kay v.
Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007), it asserts
that his right to equal protection is violated by either (1)
the statutorily mandated savings requirement or (2) his
statutory ineligibility for parole. The district court
dismissed the challenge to mandatory savings without
prejudice because it does not relate to the execution of his
sentence and should have been brought under 42 U.S.C. §
1983 rather than 28 U.S.C. § 2241. As for the second
claim, the district court dismissed it without prejudice on
the ground that he had ...