Mcafee Sr. v. Zupan et al

Filing 5

ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 1/14/15. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-00039-GPG
MR. ANTHONY E. MCAFEE SR.,
Applicant,
v.
MR. DAVID ZUPAN, Warden of Territorial Correctional Facility, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Anthony E. McAfee Sr., is a prisoner in the custody of the Colorado
Department of Corrections currently incarcerated at the Colorado Territorial Correctional
Facility. Mr. McAfee 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 99CR4486 in the Denver County District Court. Mr. McAfee has
been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
The Court must construe the Application liberally because Mr. McAfee 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. McAfee concedes that he previously sought habeas corpus relief in this Court
pursuant to § 2254 challenging the validity of the same state court conviction. (See
ECF No. 1 at 6-7; see also McAfee v. Plough, No. 09-cv-00833-ZLW (D. Colo. April 10,

2009)). 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).
On August 11, 2000, following a jury trial, Mr. McAfee was found guilty of one
count of vehicular homicide, two counts of leaving the scene of an accident, and one
count of vehicular assault. (See ECF No. 7 at 2 in McAfee v. Plough, No. 09-cv-00833ZLW). He was sentenced to an aggregate term of forty-seven years of incarceration on
November 13, 2000. (Id.) On December 29, 2000, Mr. McAfee filed a direct appeal.
(Id.) The conviction and sentence were affirmed on March 25, 2004, and Mr. McAfee’s
petition for writ of certiorari was denied on December 27, 2004. (Id.)
Mr. McAfee filed a Colo. R. Crim. P. 35(c) postconviction motion on January 19,
2006. (Id.) The postconviction motion was denied by the trial court on April 18, 2006,
and Mr. McAfee’s petition for writ of certiorari was denied by the Colorado Supreme
Court on August 4, 2008. (Id.)
On April 10, 2009, Mr. McAfee filed a habeas corpus application pursuant to §
2254 in Case No. 09-cv-00833-ZLW. 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. 7 in No. 09-cv-00833-ZLW). Mr. McAfee then filed a pleading that the court
construed as a Motion to Reconsider the Order of Dismissal, which it denied on July 16,
2009. (See ECF No. 10 in No. 09-cv-00833-ZLW). Mr. McAfee also filed a Motion for
Relief from Judgment Pursuant to Fed. R. Civ. P. 60(b), which the court denied on May
26, 2010. (See ECF No. 14 in No. 09-cv-00833-ZLW). Mr. McAfee appealed, and the
Tenth Circuit denied Mr. McAfee’s request for a certificate of appealability and
remanded the case to the district court, finding that the district court did not have
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jurisdiction to deny the Rule 60(b) motion, which was actually “a successive habeas
petition.” (See ECF No. 26 in No. 09-cv-00833-ZLW). On remand, the court concluded
that Mr. McAfee’s Rule 60(b) Motion was a successive habeas corpus action and that it
lacked jurisdiction to deny the relief sought in the Motion. (See ECF No. 28 in 09-cv00833-ZLW).
Mr. McAfee alleges that he filed a petition for writ of habeas corpus in state court
proceedings, which the state court denied on March 18, 2014. (ECF No. 1 at 2-3). He
alleges that he appealed this decision, and that the Colorado Supreme Court affirmed
the denial on May 12, 2014. (Id. at 3)
He filed the § 2254 Application in this Court on January 6, 2015 alleging that the
state courts abused their discretion and denied his constitutional rights to due process
and equal protection by denying his state habeas corpus petition. (See ECF No. 1 at 56).
The Court has examined the records for No. 09-cv-00833-ZLW and finds that Mr.
McAfee previously challenged the validity of the same state court 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 § 2244(b).
Pursuant to 28 U.S.C. § 2244(b)(3)(A), Mr. McAfee 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
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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. McAfee admits that he has not obtained authorization from the Tenth Circuit
to file a second or successive § 2254 application. (See ECF No. 1 at 7) 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
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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.
Mr. McAfee’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 was
clear when the instant action was filed that this Court lacks jurisdiction over his claims
because his prior habeas corpus action in Case No. 09-cv-00833-ZLW 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 Mr. McAfee 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. P. 24.
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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 14th

day of

January

, 2015.

BY THE COURT:

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

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