Ashfield v. Thomas et al

Filing 6

ORDER of Dismissal. ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 is denied for lack of jurisdiction, and the action is dismissed. FURTHER ORDERED that no certificate of appealability shall issue. FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied, by Judge Lewis T. Babcock on 3/8/12. (lyg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00140-BNB
WOODIE MACK ASHFIELD,
Applicant,
v.
JEFFERY E. THOMAS, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Woodie Mack Ashfield, currently is incarcerated at the United States
Bureau of Prisons’ facility in Sheridan, Oregon. On January 19, 2012, Mr. Ashfield,
acting pro se, submitted to the Court an Application for a Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254.
The Court must construe the Application liberally because Mr. Ashfield is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The Court, however, should not act as
an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, the Court will dismiss the instant action.
Upon review of Ashfield v. Pugh, No. 03-cv-01057-ZLW (D. Colo. Aug. 1, 2003),
aff’d, No. 03-1427 (10th Cir. Jan. 21, 2004), the Court finds Mr. Ashfield filed a prior
§ 2254 action that challenged the same state criminal conviction as this action and that
was dismissed as time-barred under 28 U.S.C. § 2244(d). A dismissal of a § 2254

action as time-barred is a decision on the merits for purposes of determining whether a
subsequent petition is second or successive. See Johnson v. Workman, 446 F. App’x
92, n.1 (10th Cir. 2011) (citing Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 228 (1995)
(“The Rules of finality, both statutory and judge made, treat a dismissal on statue-oflimitations grounds . . . as a judgment on the merits.”); Murphy v. Klein Tools, Inc., 935
F.2d 1127, 1128-29 (10th Cir. 1991) (holding that “a dismissal on limitations grounds is
a judgment on the merits”). Therefore, the instant § 2254 action is a second or
successive motion and will be dismissed for the following reasons.
Pursuant to 28 U.S.C. § 2244(b)(3), Mr. Ashfield must obtain an order from the
United States Court of Appeals for the Tenth Circuit authorizing this Court to consider a
second or successive § 2254 action. In the absence of such authorization, this Court
lacks jurisdiction to consider the merits of the claims asserted in a second or successive
§ 2254 action. In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008). The Court must either
dismiss the § 2254 action for lack of jurisdiction or, if it is in the interest of justice,
transfer the matter to the Tenth Circuit pursuant to 28 U.S.C. § 1631. Id. at 1252. The
factors for considering whether a transfer is in the interest of justice include:
whether the claims would be time barred if filed anew in the
proper forum, whether the claims alleged are likely to have
merit, and whether the claims were filed in good faith or if, on
the other hand, it was clear at the time of filing that the court
lacked the requisite jurisdiction.
Id. at 1251.
The claims in the instant action, like the claims Mr. Ashfield asserted in his
previous § 2254 action, are time-barred under 28 U.S.C. § 2244(d). Even if the claims
were found to have merit, Mr. Ashfield fails to demonstrate that the claims are based on
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either newly discovered evidence, a new rule of constitutional law, or were untimely due
to a state caused impediment. See § 2244(d). Also, it was clear when this action was
filed that the Court lacked jurisdiction. A transfer of this action to the Tenth Circuit is not
in the interest of justice. The Application, therefore, will be denied for lack of
jurisdiction.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this Order is not taken in good faith, and, therefore, in forma pauperis status will be
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Mr. Ashfield files a notice of appeal he must pay the full $455 appellate filing
fee or file a motion to proceed in forma pauperis in the United States Court of Appeals
for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 is denied for lack of jurisdiction, and the action is dismissed. It is
FURTHER ORDERED that no certificate of appealability shall issue because Mr.
Ashfield has not made a substantial showing that jurists of reason would find it
debatable whether the procedural ruling is correct and whether the underlying claim has
constitutional merit. It is

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FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this

8th

day of

March

, 2012.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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