Melina v. Pollard

Filing 61

ORDER dismissing this action with prejudice, and denying leave to proceed in forma pauperis on appeal, by Clerk on 1/29/16. No certificate of appealability shall issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00637-GPG
DANIEL G. MELINA,
Applicant,
v.
WILLIAM POLLARD, Warden, and
JOHN W. SUTHERS, Attorney General for the State of Colorado,
Respondents.

ORDER

Applicant Daniel G. Melina has filed pro se an Amended Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 6) (the “Application”) asserting
six claims challenging the validity of his conviction in Adams County District Court case
number 00CR1673. He has paid the $5.00 filing fee.
After denying Mr. Melina’s request to stay the proceedings in abeyance while he
returns to state court to fully exhaust claims two, three, four, and six (see ECF No. 8),
Magistrate Judge Boyd N. Boland ordered Respondents to file a Pre-Answer Response
limited to addressing the affirmative defenses of timeliness under 28 U.S.C. § 2244(d)
and exhaustion of state court remedies pursuant to 28 U.S.C. § 2254(b)(1)(A) (see ECF
No. 18). On August 29, 2014, Respondents filed their Response (ECF No. 24)
conceding that claims two and five were exhausted but asserting failure to exhaust as to
claim one and procedural default of claims three, four, and six.
After granting Mr. Melina multiple extensions of time to file a reply to the

Response, the Court entered an order on January 29, 2015 directing Mr. Melina to show
cause why the Application should not be denied and the action dismissed as timebarred under 28 U.S.C. § 2244(d). (See ECF No. 36). In the Order to Show Cause, the
Court noted that Respondents appeared to miscalculate the days that ran against the
limitation period by identifying the filing date of Mr. Melina’s state postconviction motion
as June 25, 2008 instead of the actual filing date of July 24, 2008. (Id. at 4, citing ECF
24-1 at 11 and ECF No. 24-15 at 1). The Court then determined that if the correct filing
date was used, a total of 383 days ran against the limitation period; and even if Mr.
Melina was given the benefit of the prison mailbox rule, the action still was untimely by
approximately nine days.1 (Id. at 5 and 5 n.1). The Court further determined that
Respondents had not waived the defense of timeliness by a simple miscalculation, and
that the Court was permitted, but not obligated, to consider, sua sponte, the timeliness
of the Application. (See id., citing Day v. McDonough, 547 U.S. 198, 209 (2006)). After
granting Mr. Melina an extension of time to respond to the Order to Show Cause, Mr.
Melina filed his Response (ECF No. 40) on April 6, 2015. On April 14, 2015,
Respondents filed their “Response to Applicant’s Response to Order to Show Cause”
(ECF No. 44).
The Court reviewed the parties’ filings and entered an order on May 7, 2015
directing Mr. Melina to show cause why the deadline for his § 2254 application deadline
should be equitably tolled. (See ECF No. 48). In the Second Order to Show Cause, the

1

Under the prison mailbox rule, the state postconviction motion would be deemed filed
on July 20, 2008 instead of July 24, 2008 (see ECF No. 24-15 at 22), and the federal habeas
application would be deemed filed on February 22, 2014 instead of February 27, 2014 (see ECF
No. 1 at 18.)

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Court noted that Mr. Melina argued that equitable tolling was appropriate for the
following two reasons:
1) applicant is actually innocent of the solicitation count he was convicted
of at trial. In claim two of applicants 2254 application the exculpatory
evidence which trial counsel failed to introduce at trial which applicant
included in his 2254 application will exonerate applicant in future
proceedings.
2) an adversary’s conduct or other uncontrollable circumstances prevents
the applicant from timely filing. As applicant has asserted to this
honorable court in previous motions he has never been in possession of
any of his discovery or trial transcripts. It started with an order by judge
Harlan Bockman. Judge Bockman ruled that applicant nor his
codefendants could possess discovery in jail cell. If while in the county jail
applicant wanted to see his discovery he was to request permission to go
to the jail law library and view it there. This occurred in October 2000 until
February 2001. Applicant goes back this far to prove that he has never
been in possession of his discovery and transcripts. In October 2005,
applicant was unexpectedly moved from Colorado state prison to
Wisconsin secure prison facility. Wisconsin’s version of super max. Upon
departure from Colorado applicant was unable to bring with him the few
motions and briefs from his appeals that he was in possession of. To
make matters worse for applicant once he arrived to the super max
Wisconsin he was not afforded any Colorado revised statute books or
case law. As evidenced in attached exhibit A applicant wanted to file a
writ of certiorari with the U.S. Supreme Court and even asked for an
extension of time to do so. In his motion for extension of time applicant
states his lack of Colorado case law and not being in possession of
discovery and trial transcripts. Applicant was diligent in trying to obtain his
discovery and trial transcripts as evidenced in exhibits A, B, and C.
Applicant contacted the Adams County court house (clerk’s office), the
Adams County Sheriff’s department, all 3 of his appellate attorney’s, and
even Colorado’s alternate defense counsel trying to obtain his discovery,
trial transcripts and files pertaining to his case. Applicant was told by
attorney Brad Junge that he would provide the discovery and transcripts to
applicant via U.S. post office mail system. Applicant even went as far as
to get it approved by his social worker as the discovery and transcripts
would be sent in 2 medium sized boxes. Mr. Junge never sent the
discovery or transcripts to applicant. And went as far as to write him a
letter (exhibit B), explaining that applicants mother left him a few
messages but never left her address because the paper work was
supposed to be sent to applicant not applicants m other. . . . Due to the
fact that applicant did not have his discovery or trial transcripts or even
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Colorado case law he faced extra ordinary circumstances and serious
hardship which was out of his control. When applicant’s post conviction
motion was denied on December 9, 2013, he had just 82 days left to
perfect his 2254 application. Although applicant was now afforded Lexis
Nexis and limited Colorado revised statutes he was still without his
discovery and trial transcripts. And since the AEDPA one year time
limitation is not a recognized court imposed deadline at Waupun
Correctional Institution (prisoners must have an actual minute order as
proof of any such deadline), applicant was unable to attend WCI prison
law library on a court imposed deadline pass. Due to these extra ordinary
circumstances applicant believes that equitable tolling exists in this case.
(See ECF 48 at 5-7, citing ECF No. 40 at 2-4).
The Court then summarized Mr. Melina’s two arguments for equitable toling as
follows: (1) that he is actually innocent; and (2) that there were extraordinary
circumstances that prevented him from timely filing, such as being transferred to
Wisconsin without his legal materials, having no or limited access to Colorado law,
having limited law library time, and having no access to his trial transcripts and
discovery. (See ECF No. 48 at 7). The Court further found that Mr. Melina attempted
but failed to allege with the required specificity how the circumstances were
“extraordinary” and hindered his ability to timely file his application. (Id.). Therefore, the
Court ordered Mr. Melina to show cause, with the required specificity regarding facts
and dates, as to why the one-year limitation period should be equitably tolled. (Id.).
After granting Mr. Melina multiple extensions of time to respond to the Second Order to
Show Cause, Mr. Melina filed his Response (ECF No. 60) on October 21, 2015.
Respondents were given the opportunity to file a reply, but did not do so.
The Court must construe the pleadings filed by Mr. Melina liberally because he 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
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be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, the Application should be DENIED as untimely and the case DISMISSED.
I. BACKGROUND
The facts of Mr. Melina’s state criminal case were summarized by the Colorado
Court of Appeals (CCA) as follows:
The evidence at trial showed that two men, Leandro Lopez and Robert
Padilla, murdered a key witness in a felony drug prosecution against
defendant’s brother. In the weeks before the murder, defendant made 34
phone calls to Padilla. After the murder, defendant paid Padilla
approximately $3,000. Defendant was indicted for first degree murder,
conspiracy to commit first degree murder, and criminal solicitation. After a
jury trial, defendant was convicted of criminal solicitation.
(ECF No. 24-11 at 2, People v. Melina, No. 03CA0391 (Colo. App. Mar. 31, 2005)).
Mr. Melina was adjudicated a habitual criminal and sentenced to ninety-six years
imprisonment. (Id.). The judgment of conviction and the sentence were affirmed on
direct appeal. (Id.). After granting Mr. Melina’s petition for writ of certiorari on direct
appeal, the Colorado Supreme Court affirmed the judgment on June 25, 2007 in a
published opinion. (See ECF No. 24-1 at 11); see also Melina v. People, 161 P.3d 635
(Colo. 2007).
Approximately thirteen months later, Mr. Melina filed a petition for postconviction
relief pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure on July 24,
2008. (ECF 24-1 at 11). After appointment of postconviction counsel, a supplement to
the motion was filed on July 16, 2010. (Id. at 10). On April 8, 2011, the trial court
denied the Rule 35(c) motion, and the Colorado Court of Appeals affirmed the denial.
(Id.; ECF No. 24-7, People v. Melina, No. 11CA1015 (Colo. App. Apr. 18, 2013)). On
December 9, 2013, the Colorado Supreme Court denied Mr. Melina’s petition for writ of
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certiorari in his postconviction proceedings. (ECF No. 24-9).
The instant action commenced on February 27, 2014 when Mr. Melina filed an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 in this Court. In
the Amended Application submitted on April 7, 2014, Mr. Melina asserts the following
six claims for relief:
1.

Trial counsel’s failure to request a unanimity instruction constitutes
ineffective assistance of counsel.

2.

Trial counsel’s failure to introduce exculpatory evidence from
Robert Padilla and Harvey Steinberg constitutes ineffective
assistance of counsel.

3.

Trial counsel’s failure to raise issues of duplicitous solicitation count
prior to trial constitutes ineffective assistance of counsel.

4.

Trial counsel’s failure to request appropriate mistrial due to outside
influences on the jury constitutes ineffective assistance of counsel.

5.

Brady violation by prosecution and investigative agencies.

6.

Appellate counsel was ineffective for failing to raise or preserve
Batson issue on direct appeal.

(ECF No. 6 at 6-13).
II. ONE-YEAR LIMITATION PERIOD
As set forth above, in the January 29, 2015 Order to Show Cause, the Court
determined, sua sponte, that the Application appeared to be barred by the one-year
limitation period in 28 U.S.C. § 2244(d). (See ECF No. 36 at 3-5). Specifically, the
Court found that Mr. Melina’s judgment of conviction became final on September 24,
2007, which was the last day Mr. Melina could have petitioned for certiorari in the United
States Supreme Court after the Colorado Supreme Court issued its June 25, 2007
opinion affirming Mr. Melina’s conviction on direct appeal. (See id. at 4). From that
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point, 303 days ran against the limitation period before it was tolled upon the filing of
Mr. Melina’s postconviction motion on July 24, 2008. (See id., citing ECF No. 24-1 at 11
and ECF No. 24-15 at 1). The limitation period remained tolled until the Colorado
Supreme Court denied Mr. Melina’s petition for writ of certiorari on December 9, 2013.
(See ECF No. 24-9). Then, an additional 80 days ran against the limitation period prior
to Mr. Melina’s filing of his habeas corpus application in this Court on February 27,
2014. Thus, a total of 383 days ran against the limitation period, rendering the
application untimely by approximately eighteen days. Moreover, even assuming that
Mr. Melina was entitled to the benefit of the prison mailbox rule, Houston v. Lack, 487
U.S. 266, 276 (1998), the Application still would be untimely by approximately nine days
as a total of 374 days ran against the limitation period. (See ECF No. 36 at 5, citing
ECF No. 24-15 at 22 and ECF No. 1 at 18). After considering Mr. Melina’s arguments
as to why the Application should not be dismissed as time-barred under 28 U.S.C. §
2244(d), the Court instructed Mr. Melina to show cause, with the required specificity
regarding facts and dates, as to why the one-year limitation period should be equitably
tolled. (See ECF No. 48).
In his Response (ECF No. 60) to the Second Order to Show Cause, Mr. Melina
asserts two arguments. First, he contends that the Court incorrectly calculated the
limitation period because the Court “failed to consider that a 14 day period tolls the 2254
limitation period, and that the 14 day period derives from Colorado Appellate Rule 40(a),
which allows the filing of a petition for rehearing within 14 days of a decision by the
Colorado Supreme Court.” (Id. at 1-5). Mr. Melina further alleges that “[i]n counting the
14 day Statutory Tolling period afforded by C.A.R. 40(A), Applicant timely filed his
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Habeas Corpus petition on the 361st day.” (Id. at 5). Second, Mr. Melina argues that
his habeas corpus application is subject to equitable tolling because (a) he is actually
innocent; and (b) his lack of access to trial transcripts and legal research materials was
an extraordinary circumstance that prevented him from timely filing. (Id. at 6-13).
A. Statutory Tolling
The Court first addresses Mr. Melina’s statutory tolling argument. Mr. Melina
suggests that following the Colorado Supreme Court’s June 25, 2007 opinion affirming
his conviction on direct appeal, Colorado Rules of Appellate Procedure afforded him an
additional fourteen days in which to file a petition for rehearing prior to commencement
of the ninety period he had to file a petition for certiorari review in the United States
Supreme Court. In other words, Mr. Melina argues that his conviction did not become
final on September 24, 2007, which is ninety days after the date the Colorado Supreme
Court issued its order ending his direct appeal, but rather became final 104 days after
the Colorado Supreme Court’s decision.
Under Colorado Rule of Appellate Procedure 40(a), “[a] petition for rehearing
may be filed within fourteen days after entry of judgment . . .” Colo. R. App. 40(a).
Although, Mr. Melina could have filed a petition for rehearing pursuant to Rule 40(a)
following the June 25, 2007 order, he never actually filed a petition for rehearing. Thus,
the Court properly calculated that Mr. Melina’s conviction became final and the one-year
period in which he had to file his federal habeas application began to run on September
24, 2007, when the ninety day period he had to file a petition for writ of certiorari in the
United States Supreme Court regarding his direct appeal expired. See 28 U.S.C. §
2244(d)(1)(A); Jimenez v. Quarterman, 120 S. Ct. 681, 686 (2009) (“[I]t was not until . . .
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time for seeking certiorari review in this Court expired, that petitioner’s conviction
became ‘final’ . . . under § 2244(d)(1)(A).”); Locke v. Saffle, 237 F.3d 1269, 1272 (10th
Cir. 2001). In other words, the fourteen days to file a petition for rehearing before the
Colorado Supreme Court were subsumed during the ninety day period that tolled the
running of the one-year limitation period. See e.g., Mills v. McKune, 186 Fed. App’x
828, 830-31 (10th Cir. 2006) (denying additional statutory tolling for the twenty-day
period to file a petition for rehearing, which was subsumed by the ninety day statutory
tolling period); Golden v. Ford, 535 Fed. App’x 755, 756 (10th Cir. 2013) (recognizing
that applicant was not entitled to additional tolling because that period was already
tolled). None of the cases Mr. Melina cites support his position that absent an actual
filing of a petition for rehearing, he was entitled to tolling of the fourteen day period in
addition to the ninety day tolling period. As such, Mr. Melina’s judgment of conviction
became final on September 24, 2007, which was the last day Mr. Melina could have
petitioned for certiorari review in the United States Supreme Court. Moreover, the Court
correctly determined sua sponte that the instant action is time-barred in the absence of
some other reason to toll the one-year limitation period.
B. Equitable Tolling
In his Response (ECF No. 60), Mr. Melina “re-asserts his equitable tolling claim
with the necessary facts that demonstrate that his situation is extraordinary, and that he
diligently pursued his filing of the Habeas Corpus.” (Id. at 6). Specifically, Mr. Melina
asserts that he “is actually innocent of the solicitation count” and that his “transfer to the
Wisconsin Secure Facility (Super Max) The denial of access to trial and discovery
materials created an extraordinary circumstance that is not encountered by the average
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Colorado inmate.” (Id.).
“[T]he timeliness provision in the federal habeas corpus statute is subject to
equitable tolling.@ Holland v. Florida, 130 S. Ct. 2549, 2554 (2010). An applicant
seeking equitable tolling must clear a high hurdle and “is entitled to equitable tolling only
if he shows (1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely filing.@ Id. at 2562
(internal quotation marks and citation omitted); accord Yang v. Archuleta, 525 F.3d 925,
929 (10th Cir. 2008) (A>Equitable tolling is a rare remedy to be applied in unusual
circumstances, not a cure-all for an entirely common state of affairs.’”) (quoting
Wallace v. Kato, 549 U.S. 384, 396 (2007)); see also Gibson v. Klinger, 232 F.3d 799,
808 (10th Cir. 2000) (equitable tolling is appropriate only in “rare and exceptional
circumstances”). Moreover, the inmate must allege with specificity the steps he took to
pursue his federal claims. Yang, 525 F.3d at 930. Finally, the inmate bears the burden
of demonstrating that equitable tolling is appropriate. See Miller v. Marr, 141 F.3d 976,
978 (10th Cir. 1998);
Mr. Melina first argues that he is “actually innocent of the solicitation count” and
that “the exculpatory evidence which trial counsel failed to introduce at trial . . . will
exonerate applicant in future proceedings.” (ECF No. 60 at 6). Mr. Melina’s conclusory
assertions do not satisfy the actual innocence exception, which requires “new reliable
evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence—that was not presented at trial.” House v. Bell,
547 U.S. 518, 537 (2006); see also Lopez v. Trani, 628 F.3d 1228, 1230-31 (10th Cir.
2010) (recognizing that the applicant must present a colorable or sufficiently supported
10

claim of actual innocence). The Court finds that Mr. Melina fails to identify any new
reliable evidence that establishes a colorable actual-innocence claim in favor of
equitable tolling.
Next, Mr. Melina asserts that an “adversary’s conduct or other uncontrollable
circumstances” prevented him from timely filing because he “has never been in
possession of any of his discovery or trial-transcripts.” (ECF No. 60 at 6). He further
sets forth his attempts to obtain copies of these materials, including contacting the
Adams County clerk’s office, the Adams County Sheriff’s Department, his appellate
attorneys, and the Colorado Alternate Defense Counsel between 2006 and 2012. (Id. at
7-9). Despite his efforts, Mr. Melina’s allegations do not indicate anything more than
normal difficulties in obtaining records and evidence, which fails to show extraordinary
circumstances beyond his control entitling him to equitable tolling. See Reed v. Timme,
389 Fed. App’x 850, 853 (10th Cir. 2010) (holding that prisoner who complained that his
attorney was not diligent in discovering or forwarding evidence to him failed to
demonstrate that applicant’s delay in petitioning for federal habeas relief was due to
“extraordinary circumstances” sufficient to permit equitable tolling of one-year deadline).
Likewise, numerous courts have held that an inmate’s lack of court records does not
justify equitable tolling. See, e.g., Heinemann v. Murphy, 401 Fed App’x 304, 311 (10th
Cir. 2010) (listing other circuits that have considered and rejected arguments
concerning the unavailability of transcripts as warranting equitable tolling); United States
v. McKenzie, 803 F.3d 1164 (10th Cir. 2015) (noting that while “a transcript, and more
information about possible grounds for a § 2255 motion could be helpful, they are by no
means required to file a timely § 2255 motion); United States v. Banuelos-Munoz, 182
11

F.3d 933 (10th Cir. 1999) (disallowing equitable tolling of the limitations period based on
obstacles faced by petitioner in attempting to obtain a transcript and concluding that any
delay in receiving the transcripts did not constitute an extraordinary circumstance);
United States v. Pedraza, 166 F.3d 349 (10th Cir. 1998) (holding that prisoner was not
entitled to equitable tolling of the limitations period based on the unavailability of
transcripts). Moreover, counsel’s failure to forward discovery and trial materials to Mr.
Melina is likewise insufficient. See Fleming v. Evans, 481 F.3d 1249, 1255 (10th Cir.
2007) (“Habeas counsel’s negligence is not generally a basis for equitable tolling
because ‘[t]here is not constitutional right to an attorney in state post-conviction
proceedings. ‘ “).
The Court further finds that Mr. Melina does not allege sufficient facts that
demonstrate how the alleged denial of court records and transcripts impeded his ability
to timely file a federal habeas application. See Weibley v. Kaiser, 50 Fed. App’x 399,
403 (10th Cir. 2002) (rejecting claim that prison officials withheld legal materials
because applicant failed to allege specific facts demonstrating how the alleged denial of
these materials impeded his ability to file a federal habeas application); see also Miller,
141 F.3d at 978 (rejecting prisoner’s claim of lack of access to legal materials because
of lack of specificity in the allegations).
Finally, Mr. Melina argues that his transfer and incarceration in a Wisconsin
prison is an extraordinary circumstance that supports a finding of equitable tolling. The
Court disagrees and finds that his allegations concerning his incarceration in a
Wisconsin prison do not justify equitable tolling. See Miller, 141 F.3d at 978 (alleged
lack of access to relevant legal materials while housed in out of state prison is not
12

sufficient to justify equitable tolling); Tanksley v. Falk, No. 14-cv-03100-GPG, 2015 WL
514842, at *4 (D. Colo. Feb. 6, 2015) (rejecting any equitable tolling argument based on
fact that applicant was incarcerated in Texas when the one-year limitation period
commenced and expired).
Moreover, Mr. Melina’s assertions that the policies of the Wisconsin prison
further hindered his efforts to timely file also do not justify equitable tolling. See Kenyon
v. Wyoming Dept. Of Corrections, 310 Fed. App’x 250, 254 (10th Cir. 2009) (rejecting
equitable tolling based on prisoner’s allegations that he was transferred out of state to a
prison facility where he was unable to access legal materials); Jones v. Taylor, 484 Fed.
Appx. 241, 242-43 (10th Cir. 2012) (holding that limited access to the law library, limited
knowledge of the law, and limited access to relevant legal resources did not amount to
extraordinary circumstances for equitable tolling). In fact, Mr. Melina admits that he was
“afforded Lexis Nexis and limited Colorado revised statutes” approximately 82 days
before the one-year limitations period expired. (ECF No. 40 at 3-4). Thus, any alleged
lack of access to legal research materials cannot be the cause of the late filing in this
case. See Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) ((“[E]ven assuming
that such a short closing of a prison law library could be considered ‘extraordinary,’ Mr.
Marsh has not shown how this lack of access caused his delay in filing.”); see also
Coppage v. McKune, 534 F.3d 1279, 1282 (10th Cir. 2008) (no extraordinary
circumstances when prisoner had 50 days to file a habeas petition that required limited
research because he could raise only issues previously submitted in state court); Garcia
v. Lind, No. 14-cv-00715-RPM, 2014 WL 2519624, at *2 (D. Colo. June 4, 2014)
(holding that applicant failed to demonstrate any causal connection between his lack of
13

access to records and transcripts and the lateness of his federal habeas application
because he “himself attended the trial and witnessed firsthand his counsel’s acts or
omissions that now form the basis of his ineffective assistance of counsel claims” and
he filed his state postconviction motion and the federal habeas application without
having the record in his possession). Accordingly, Mr. Melina has failed to meet his
burden of demonstrating that equitable tolling is appropriate in the instant action.
Based on the above findings, the Court will dismiss this action with prejudice as
time-barred. See Brown v. Roberts, 177 F. App=x 774, 778 (10th Cir. 2006) (dismissal
as time-barred operates as a dismissal with prejudice).
III. Conclusion
Because the action is untimely, the Court will refrain from addressing whether the
claims are exhausted.
The Court further 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 is
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Applicant files a notice of appeal he must also pay the full $505 appellate
filing fee or file a motion to proceed in forma pauperis in 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 (ECF No. 6) is denied and this action is dismissed with prejudice as timebarred under 28 U.S.C. ' 2244(d). It is
FURTHER ORDERED that no certificate of appealability shall issue because
Applicant has failed to show that jurists of reason would find it debatable that the district
14

court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484-85
(2000). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this

29th day of

January

, 2016.

BY THE COURT:

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

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