Gross v. Goodrich et al
ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 8/29/14. No certificate of appealability will issue. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01621-BNB
BRIAN M. GROSS,
BERRY GOODRICH, Warden BCCF, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
ORDER OF DISMISSAL
Applicant, Brian M. Gross, is a prisoner in the custody of the Colorado
Department of Corrections (CDOC) at Intervention Community Corrections Services in
Pueblo, Colorado. Mr. Gross 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 conviction in case 04CR225 in the Pueblo County District Court. Mr.
Gross has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. §
On July 2, 2014, Magistrate Judge Boyd N. Boland ordered Respondents to file a
pre-answer response and address the affirmative defenses of timeliness and exhaustion
of state-court remedies. On July 31, 2014, Respondent filed a response (ECF No. 17).
Although Mr. Gross was given the opportunity to file a reply, he did not do so within the
The Court must construe the Application liberally because Mr. Gross is a pro se
litigant. 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 act as 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. Gross previously sought habeas corpus relief in this Court pursuant to § 2254
challenging the validity of the same state court conviction and sentence. See Gross v.
Davis, No. 12-cv-01041-LTB (D. Colo. April 18, 2012). 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.
In 2005, Mr. Gross pled guilty to class three felony theft pursuant to a deferred
judgment and sentence agreement. (ECF No. 17-1 at 3-4, 21-22). Pursuant to the
agreement, his guilty plea would be withdrawn and the conviction would not be entered
if Mr. Gross successfully completed a four year term of supervision. (Id. at 3-4). Mr.
Gross violated the terms of his supervision, however, and on July 6, 2007, the trial court
entered judgment on the conviction and sentenced him to four years of probation. (Id.
at 3-4, 18). Mr. Gross later violated the terms of his probation, and on May 6, 2009, the
trial court revoked the probationary sentence and sentenced him to four years in the
custody of CDOC. (Id. at 3-4, 15).
On September 28, 2009, Mr. Gross filed a motion for reconsideration, requesting
a reduction of sentence. (ECF No. 17-1 at 14). On October 20, 2009, the trial court
denied the request, and Mr. Gross did not file an appeal. On March 10, 2010, Mr.
Gross filed a second motion for reconsideration, which the trial court denied. Mr. Gross
did not file an appeal. (Id.).
On March 14, 2011, Mr. Gross then filed a postconviction motion pursuant to
Colorado Rule of Criminal Procedure 35(c). (ECF No. 17-1 at 14). The trial court
denied the motion on March 22, 2011. (Id.). Mr. Gross filed an appeal, and the
Colorado Court of Appeals dismissed the appeal as untimely on January 27, 2012. (Id.
On November 17, 2011, Mr. Gross filed a second postconviction motion, which
the trial court denied on November 29, 2011. (ECF No. 17-1 at 12). Mr. Gross filed an
appeal, and the Colorado Court of Appeals dismissed the appeal with prejudice on April
26, 2012. (ECF No. 17-1 at 11).
On April 18, 2012, Mr. Gross filed a habeas corpus application pursuant to §
2254 in Case No. 12-cv-01041-LTB. The 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
No. 13 in No. 12-cv-01041-LTB. Mr. Gross did not appeal.
On May 7, 2014, Mr. Gross filed a third postconviction motion in the state trial
court. (ECF No. 17-1 at 10). The trial court denied the motion, and Mr. Gross did not
The Court has examined the records for No. 12-cv-01041-LTB and finds that Mr.
Gross previously challenged the validity of the same conviction he challenges here.
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 §
Pursuant to 28 U.S.C. § 2244(b)(3)(A), Mr. Gross must apply to the Tenth Circuit
for an order authorizing this Court to consider his second or successive habeas corpus
application. See Case v. Hatch, No. 731 F.3d 1015, 1026 (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, 731 F.3d at 1026-27. 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 1029.
However, in the absence of a Tenth Circuit order authorizing this Court to
consider a second or successive habeas corpus application, the 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
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. Gross does not allege that he has obtained authorization from the Tenth
Circuit to file a second or successive § 2254 application. 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.
Applicant’s 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 Applicant’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 Applicant’s claims because his prior
habeas corpus action in No. 12-cv-01041-LTB 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 $505.00
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.
Accordingly, it is
ORDERED that the habeas corpus application (ECF No. 1) is denied and the
action is dismissed without prejudice 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 29th day of
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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