DePineda v. Archuleta et al
ORDER dismissing this action, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 8/19/13. No certificate of appealability will issue. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02181-BNB
LOU ARCHULETA, and
MARY CARLSON, Time Comp.,
ORDER OF DISMISSAL
Applicant, Manuel DePineda, is a prisoner in the custody of the Colorado
Department of Corrections (DOC) at the Fremont Correctional Facility in Cañon City,
Colorado. Mr. DePineda has filed pro se an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (ECF No. 1). The Court must construe the application
liberally because Mr. DePineda 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). However, the Court should not be an advocate for a pro se litigant. See Hall,
935 F.2d at 1110. For the reasons stated below, the action will be dismissed for lack of
Although the specific claims for relief he is asserting are not entirely clear, it is
clear that Mr. DePineda contends that the trial court lacked jurisdiction, the statute
pursuant to which he was sentenced is unconstitutional, and he is falsely imprisoned.
Therefore, the Court finds that Mr. DePineda is challenging the validity of his state court
criminal conviction and sentence in this habeas corpus action. Because Mr. DePineda
is challenging the validity of his conviction and sentence, rather than the execution of
his sentence, the Court construes the application as being asserted pursuant to 28
U.S.C. § 2254. See Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000).
Mr. DePineda previously sought habeas corpus relief in this Court pursuant to §
2254 challenging the validity of his state court conviction and sentence. See DePineda
v. McKenna, No. 90-cv-01443-SGF-DEA (D. Colo. Oct. 17, 1990), appeal dismissed,
No. 90-1312, 1991 WL 65066 (10th Cir. Apr. 24, 1991); DePineda v. Gunter, No. 91-cv00977-DBS-RMB (D. Colo. Aug. 5, 1991), appeal dismissed, No. 91-1294, 1991 WL
268841 (10th Cir. Dec. 11, 1991); DePineda v. Cooper, No. 92-cv-01400-LTB (D. Colo.
Nov. 16, 1992), aff’d, No. 93-1212, 1993 WL 482907 (10th Cir. Nov. 22, 1993);
DePineda v. Gunter, No. 93-cv-00446-EWN (D. Colo. Apr. 30, 1994); DePineda v.
Zavaras, No. 93-cv-02665-LTB (D. Colo. Jan. 20, 1994), aff’d, No. 94-1052, 1994 WL
475019 (10th Cir. Sept. 1, 1994); DePineda v. Golder, No. 03-cv-01106-ZLW (D. Colo.
July 1, 2003); DePineda v. Ortiz, No. 04-cv-01199-ZLW (D. Colo. July 20, 2004);
DePineda v. Ortiz, No. 05-cv-00691-ZLW (D. Colo. Apr. 22, 2005); DePineda v. Milyard,
No. 09-cv-02009-ZLW (D. Colo. Sept. 16, 2009), appeal dismissed, No. 09-1424 (10th
Cir. Dec. 10, 2009); DePineda v. Milyard, No. 09-cv-02594-ZLW (D. Colo. Nov. 20,
2009), appeal dismissed, No. 09-1540 (10th Cir. Feb. 11, 2010); DePineda v. Clements,
No. 12-cv-02066-LTB (D. Colo. Aug. 14, 2012); DePineda v. Clements, No. 12-cv03089-LTB (D. Colo. Nov. 30, 2012), appeal dismissed, No. 12-1489 (10th Cir. Jan. 9,
2013); DePineda v. Medina, No. 13-cv-00152-LTB (D. Colo. Mar. 8, 2013), appeal
dismissed, No. 13-1105 (10th Cir. Apr. 3, 2013). One of these prior actions was
dismissed without prejudice for failure to exhaust state remedies. See 92-cv-01400LTB. Four were dismissed on the merits. See 93-cv-02665-LTB; 93-cv-00446-EWN;
91-cv-00977-DBS-RMB; 90-cv-01443-SGF-DEA. Three were transferred to the Tenth
Circuit because Mr. DePineda had not obtained authorization from that court to file a
second or successive application. See 05-cv-00691-ZLW; 04-cv-01199-ZLW; 03-cv01106-ZLW. Mr. DePineda’s most recent habeas corpus actions challenging the
validity of his conviction and sentence were dismissed for lack of jurisdiction because he
had not obtained the necessary authorization to file a second or successive application.
See 13-cv-00152-LTB; 12-cv-03089-LTB; 12-cv-02066-LTB; 09-cv-02594-ZLW; 09-cv02009-ZLW.
Although Mr. DePineda fails to list any of these prior actions in the amended
application (see ECF No. 1 at 4-5), 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). The Court has examined
the records for the cases listed above and finds that Mr. DePineda previously has
challenged the validity of his conviction and sentence. Therefore, the instant application
is a second or successive application.
Pursuant to 28 U.S.C. § 2244(b)(3)(A), Mr. DePineda must apply to the United
States Court of Appeals for the Tenth Circuit for an order authorizing this Court to
consider his second or successive habeas corpus application. See In re Cline, 531
F.3d 1249, 1252 (10th Cir. 2008) (per curiam). In the absence of such authorization, the
Court lacks jurisdiction to consider the merits of the claims asserted in a second or
successive § 2254 application. See id. 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 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. DePineda does not allege that he has obtained authorization from the Tenth
Circuit to file a second or successive § 2254 application. Therefore, the Court must
either dismiss the claims challenging the validity of his conviction and sentence for lack
of jurisdiction or, if it is in the interest of justice, transfer these claims 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 “there is no risk that a meritorious successive claim will be lost
absent a § 1631 transfer, a district court does not abuse its discretion if it concludes it is
not in the interest of justice to transfer the matter.” Id. at 1252.
Mr. DePineda’s claims in this action 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.
Although it appears that Mr. DePineda’s claims challenging the validity of his conviction
and sentence would be time-barred if filed anew in the proper forum, it appears that the
claims would be time-barred even if Mr. DePineda had sought proper authorization prior
to filing in this Court. There also is no indication that the claims Mr. DePineda seeks to
raise have any merit. Finally, it was clear when the instant action was filed that this
Court lacks jurisdiction over the application. As noted above, Mr. DePineda has been
advised in numerous prior habeas corpus actions that this Court lacks jurisdiction to
consider claims challenging the validity of his conviction and sentence in a second or
successive application in the absence of authorization by the Tenth Circuit. As a result,
the Court finds that a transfer of his 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
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 habeas corpus application (ECF No. 1) 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.
DATED at Denver, Colorado, this 19th day of
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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