Trujillo v. Archuleta et al

Filing 11

ORDER dismissing this action, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 8/14/15. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-1061-LTB
JOHN TRUJILLO,
Applicant,
v.
LOU ARCHULETA, and
ATTORNEY GENERAL OF THE STATE OF COLORADO, The
Respondents.

ORDER OF DISMISSAL

Applicant, John Trujillo, is a prisoner in the custody of the Colorado Department of
Corrections at the Freemont Correctional Facility in Cañon City, Colorado. This matter is
before the Court on the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. §
2254 (ECF No. 1) filed pro se by Mr. Trujillo on September 16, 2014. Mr. Trujillo is
challenging the validity of his criminal conviction and sentence in Denver, Colorado, District
Court case number 1994CR4676.
The Court must construe the application and other papers filed by Mr. Trujillo
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 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. Trujillo previously filed a habeas corpus action pursuant to 28 U.S.C. § 2254
challenging the validity of his state court conviction and sentence in Denver County District
Court case number 1994CR4676. See Trujillo v. Reid, No. 04-cv-02031-EWN-OES (D.

Colo. Dec. 6, 2005). Although Mr. Trujillo fails to mention the fact that he has filed a prior
habeas corpus action challenging the validity of the same state court conviction and
sentence, 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).
Mr. Trujillo’s cognizable habeas corpus claims in 04-cv-02013-EWN-OES were
dismissed for lack of substantive merit.

Therefore, the Court finds that the instant

application is a second or successive application.
Pursuant to 28 U.S.C. § 2244(b)(3)(A), Mr. Trujillo 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).

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Mr. Trujillo does not allege that he has obtained authorization from the Court of
Appeals to file a second or successive § 2254 application. 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 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. Trujillo fails to demonstrate that his claims in this action are 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. Trujillo’s claims challenging the validity of his conviction and sentence
would be time-barred if filed anew in the proper forum, it also appears that the claims would
be time-barred even if Mr. Trujillo had sought proper authorization prior to filing in this
Court. There also is no indication that the claims Mr. Trujillo 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 a result, the Court finds that a transfer of this action to the Tenth Circuit
is not in the interest of justice. Instead, the action will be dismissed for lack of jurisdiction.

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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 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 14th

day of

August

BY THE COURT:

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

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, 2015.