Wilson v. Pamela Plough et al

Filing 18

ORDER of Dismissal. ORDERED that the amended habeas corpus application 7 is denied and the action is dismissed. No certificate of appealability will issue. Leave to proceed in forma pauperis on appeal is denied without prejudice. Any pending motions are denied as moot, by Judge Lewis T. Babcock on 4/18/13. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-00007-BNB
STEVEN R. WILSON,
Applicant,
v.
PAMELA PLOUGH, and
THE ATTORNEY GENERAL OF THE STATE OF [COLORADO] JOHN W. SUTHERS,
Respondents.

ORDER OF DISMISSAL

Applicant, Steven R. Wilson, is a prisoner in the custody of the Colorado
Department of Corrections who currently is incarcerated at the Arrowhead Correctional
Center in Cañon City, Colorado. On January 2, 2013, Mr. Wilson filed pro se an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1)
challenging his sentence imposed in El Paso County, Colorado, district court case
number 97CR2521. On February 4, 2013, Mr. Wilson filed an amended application
(ECF No. 7). He has paid the $5.00 filing fee. For the reasons stated below, the action
will be dismissed for lack of jurisdiction.
Mr. Wilson previously sought habeas corpus relief in this Court pursuant to 28
U.S.C. § 2254 challenging the validity of the same state court conviction and sentence.
See Wilson v. Estep, No. 08-cv-00884-ZLW (D. Colo. Oct. 28, 2008). The Court may
take judicial notice of its own records and files that are part of the Court’s public records.
See St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172

(10th Cir. 1979).
In No. 08-cv-00884-ZLW, the Court noted that Mr. Wilson was convicted by a jury
in 1999 in El Paso County District Court Case Number 97CR2521 of attempted seconddegree murder, first-degree assault, first-degree assault upon a sudden heat of passion,
first-degree sexual assault, first-degree criminal trespass, first-degree aggravated motor
vehicle theft, second-degree kidnapping, and harassment. The jury found that four
counts were crimes of violence. On April 13, 1999, Mr. Wilson was sentenced to a total
of thirty-four years in prison.
On direct appeal, the Colorado Court of Appeals vacated the finding that the
second-degree kidnapping conviction was a crime of violence, affirmed in all other
respects, and remanded for resentencing on the second-degree kidnapping conviction.
Colorado v. Wilson, No. 97CR2521 (Colo. Ct. App. Nov. 30, 2000). On April 23, 2001,
the Colorado Supreme Court denied certiorari review. On June 15, 1992, the state trial
court resentenced Mr. Wilson to twenty-six years of imprisonment. Mr. Wilson did not
appeal this sentence.
Mr. Wilson’s prior habeas corpus application was denied and the action was
dismissed as barred by the one-year limitation period in 28 U.S.C. § 2244(d). See ECF
Nos.18 and 23 in No. 08-cv-00884-ZLW. On March 25, 2009, the United States Court
of Appeals for the Tenth Circuit denied Mr. Wilson a certificate of appealability and
dismissed his appeal. See Wilson v. Estep, No. 08-1397 (10th Cir. Mar. 26, 2009) (ECF
No. 30 in No. 08-cv-00884-ZLW). Mr. Wilson notes this prior action in his amended
habeas corpus application. See ECF No. 7 at 9.
The Court has examined the records for case number 08-cv-00884-ZLW and
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finds that Mr. Wilson previously challenged the validity of the same conviction in that
case. Therefore, the Court finds that the instant application is a second or successive
application subject to the restrictions on filing a second or successive application in 28
U.S.C. § 2244(b).
Pursuant to 28 U.S.C. § 2244(b)(3)(A), Mr. Wilson must apply to the United
States Court of Appeals for the Tenth Circuit (Tenth Circuit) for an order authorizing this
Court to consider his second or successive habeas corpus application. See Case v.
Hatch, No. 11-2094, 2013 WL 1501521, *8 (10th Cir. 2013); see also In re Cline, 531
F.3d 1249, 1252 (10th Cir. 2008) (per curiam). Section 2244 requires an applicant to
pass through two gates. Case, 2013 WL 1501521 at *9. If the circuit court finds that
the applicant makes a prima facie showing that the application satisfied the
requirements of § 2244(b), the applicant may pursue a claim in district court. Id. The
second gate requires the applicant to back up the prima facie showing at the district
court level with actual evidence to show he can meet this standard. Id. Thus, gate one
is at the circuit court level where a preliminary assessment occurs based on the
application, and gate two is at the district court level where a record is made and a final
assessment occurs. Id. at 11.
However, in the absence of a Tenth Circuit order authorizing this Court to
consider a second or successive habeas corpus application, this Court lacks jurisdiction
to consider the merits of the claims asserted in a second or successive § 2254
application. See Cline, 531 F.3d at 1251. An applicant seeking authorization to file a
second or successive application for a writ of habeas corpus pursuant to § 2254 must
demonstrate that any claim he seeks to raise is based on “a new rule of constitutional
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law, made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable,” 28 U.S.C. § 2244(b)(2)(A); or that “the factual predicate for the
claim could not have been discovered previously through the exercise of due diligence”
and “the facts underlying the claim, if proven and viewed in light of the evidence as a
whole, would be sufficient to establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have found the applicant guilty of the
underlying offense.” 28 U.S.C. § 2244(b)(2)(B).
Mr. Wilson does not allege that he has obtained authorization from the Tenth
Circuit to file a second or successive § 2254 application. See ECF No. 7 at 9.
Therefore, the Court either must dismiss the application 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. In re Cline, 531 F.3d at 1252. The factors to be
considered in deciding 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. When the claims being raised in the second or successive application
clearly do not meet the statutory requirements set forth in § 2244(b)(2), “a district court
does not abuse its discretion if it concludes it is not in the interest of justice to transfer
the matter.” See id. at 1252.
In the instant action, Mr. Wilson asserts three claims: (1) Colo. Rev. Stat. § 17-2201(5)(a) creates a liberty interest and mandates that parole be discretionary; (2) Colo.
Rev. Stat. § 18-1-105(1)(a)(V), which generally imposes mandatory parole for all
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criminal offenses committed on and after July 1, 1993, does not control over the more
specific provisions of § 17-2-201(5)(a); and imposition of mandatory parole violates
equal protection. These claims are not based on either a new rule of constitutional law
or newly discovered evidence as required pursuant to § 2244(b)(2). Therefore, the
Court finds that a transfer is not in the interest of justice for that reason alone. See id.
Consideration of the other relevant factors also supports this conclusion. It
appears that Mr. Wilson’s claims would be time-barred even if he had sought proper
authorization prior to filing in this Court. In addition, it was clear when the instant action
was filed that this Court lacks jurisdiction over Mr. Wilson’s claims because his prior
habeas corpus action challenging the validity of the same conviction was dismissed as
time-barred. As a result, the Court finds that a transfer of the instant action to the Tenth
Circuit is not in the interest of justice. Instead, the action will be dismissed for lack of
jurisdiction.
Furthermore, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be 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 Applicant files a notice of appeal he also must pay the full $455.00
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

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ORDERED that the amended habeas corpus application (ECF No. 7) is denied
and the action is dismissed for lack of jurisdiction. It is
FURTHER ORDERED that no certificate of appealability will issue because
Applicant has not made a substantial showing of the denial of a constitutional right. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied without prejudice to the filing of a motion seeking leave to proceed in forma
pauperis on appeal in the United States Court of Appeals for the Tenth Circuit. It is
FURTHER ORDERED that any pending motions are denied as moot.
DATED at Denver, Colorado, this 18th

day of

April

, 2013.

BY THE COURT:

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

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