DePineda v. Archuleta et al

Filing 5

ORDER dismissing this action, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 11/14/13. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-02902-BNB
MANUEL DePINEDA,
Applicant,
v.
LOU ARCHULETA, and
JOHN SUTHERS, Attorney General of the State of Colorado,
Respondents.

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 initiated this action by filing pro se an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) challenging the validity of his
criminal conviction and sentence in Denver District Court case number 88CR1103. 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 jurisdiction.
Mr. DePineda previously has sought habeas corpus relief pursuant to § 2254 in
the District of Colorado challenging the validity of the same 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-cv-00977-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-cv02594-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-cv-03089-LTB (D. Colo. Nov. 30, 2012), appeal
dismissed, No. 12-1489 (10th Cir. Jan. 9, 2013); DePineda v. Medina, No. 13-cv-00152LTB (D. Colo. Mar. 8, 2013), appeal dismissed, No. 13-1105 (10th Cir. Apr. 3, 2013);
Depineda v. Archuleta, No. 13-cv-02181-LTB (D. Colo. Aug. 19, 2013); DePineda v.
Archuleta, No. 13-cv-02555-LTB (D. Colo. Oct. 9, 2013). One of these prior actions was
dismissed without prejudice for failure to exhaust state remedies. See 92-cv-01400LTB. Four of these prior actions 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 other
actions were transferred to the United States Court of Appeals for the Tenth Circuit
because Mr. DePineda had not obtained authorization from that court to file a second or
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successive application. See 05-cv-00691-ZLW; 04-cv-01199-ZLW; 03-cv-01106-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-02555-LTB; 13-cv-02181-LTB; 13-cv-00152-LTB; 12-cv-03089-LTB; 12-cv02066-LTB; 09-cv-02594-ZLW; 09-cv-02009-ZLW.
Although Mr. DePineda fails to list all of these prior actions in the application (see
ECF No. 1 at 7), 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 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
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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 alleges in the application that he has obtained authorization from
the Tenth Circuit to file a second or successive § 2254 application. (See ECF No. 1 at
7.) However, he did not provide proof of such authorization to the Court. Therefore, on
October 24, 2013, Magistrate Judge Boyd N. Boland ordered Mr. DePineda to submit
proof that he has obtained authorization from the Tenth Circuit to file a second or
successive application within fourteen days.
On October 30, 2013, Mr. DePineda filed a response (ECF No. 4) to Magistrate
Judge Boland’s October 24 order. He did not provide proof that he has obtained
authorization from the Tenth Circuit to file a second or successive application and he
fails to persuade the Court that such authorization is not required. Therefore, the Court
must either dismiss the application for lack of jurisdiction or, if it is in the interest of
justice, transfer the application 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

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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 fails to demonstrate that his claims in this action are based on
either a new and retroactive 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 the application would be time-barred if filed anew in the proper
forum, it appears that the application 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 because 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
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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 14th day of

November

, 2013.

BY THE COURT:

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

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