Jimenez Sr. v. Colt
ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 10/2/15. No certificate of appealability will issue, and 2 Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action is denied as moot. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02145-GPG
ANTHONY LOLIN JIMENEZ, SR.,
THE HONORABLE EDWARD SAMUEL COLT (16304),
ORDER OF DISMISSAL
Applicant, Anthony Lolin Jimenez, Sr., is a prisoner in the custody of the Colorado
Department of Corrections. Mr. Jimenez has filed pro se an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1), a Federal Motion for
Certification of a Question of State Law Pursuant to F.R.A.P. 27.1(B) (ECF No. 1-2), and
a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a
Habeas Corpus Action (ECF No. 2). The Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action will be denied as moot
because Mr. Jimenez has paid the $5.00 filing fee for this habeas corpus action.
The Court must construe the application and other papers filed by Mr. Jimenez
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.
Mr. Jimenez describes the nature of this action as follows:
This case possesses one issue: Please see attached motion
for consideration. The issue before the Court is for a Judicial
Interpretation of a State Constitutional Provision. It is not
for relief in a Criminal Case that would otherwise be
adjudicated pursuant to 28 U.S.C. § 2254. This Cause is
however predicated from a Civil Action (2015CV31278-0001)
that possessed issues predicated from a Criminal Case
(00602000CR000178). The respondent has created a
liberty deprivation of both U.S. Const. Art. XIV & Colo. Const.
Art. II § 3. Without due process of law. This submittal is not
a request for relief in a Criminal Case[,] it is strictly for a
Certification or interpretation of State Constitutional Law.
(ECF No. 1 at 2.) Mr. Jimenez specifically asks the Court in the attached Federal Motion
for Certification of a Question of State Law Pursuant to F.R.A.P. 27.1(B) to certify the
following questions to the Colorado Supreme Court:
1. Does a District Court Judge who fails to file his Oath of Office (and Bond) with the
secretary of state’s office as prescribed by Colorado Constitution Article XII §9,
weigh to the qualification of said judge, if so, does he create a lawful vacancy as
defined in Colorado Constitution Article XII §10?
2. Can an unqualified judicial officer that is unconstitutionally filling his office, perform
the duties required by his/her office, and are the orders entered by said officer
3. If a person was appointed/elected to a judicial term of office but fails to qualify for
the appointed/elected term, but assumes the duties of office; are said official acts
and orders void for want of authority and/or jurisdiction?
(ECF No. 1-2 at 2-3.)
Mr. Jimenez’s request to certify questions to the Colorado Supreme Court must be
denied. It appears that Mr. Jimenez believes the Court may certify questions to the
Colorado Supreme court pursuant to Rule 27.1 of the Tenth Circuit Rules. Although that
rule is not applicable to a federal district court, the Court recognizes that “[c]ertification is
a useful procedure which the Supreme Court has used or commended several times.”
Copier by and through Lindsey v. Smith & Wesson Corp., 138 F.3d 833, 838 (10th Cir.
1998). Furthermore, Colorado law allows a federal district court to certify a question of
state law to the Colorado Supreme Court “if there is involved in any proceeding before
[the federal court] questions of law of this state which may be determinative of the cause
then pending in the certifying court.” C.A.R. 21.1(a). However, “[c]ertification is not to
be routinely invoked whenever a federal court is presented with an unsettled question of
state law.” Armijo v. Ex Cam, Inc., 843 F.2d 406, 407 (10th Cir. 1988). Certification is
appropriate when the state law question before the court “(1) may be determinative of the
case at hand and (2) is sufficiently novel that [the Court] feel[s] uncomfortable attempting
to decide it without further guidance.” Pino v. United States, 507 F.3d 1233, 1236 (10th
As the cited authority makes clear, the Court may certify a question to the Colorado
Supreme Court only when the question to be certified arises in a pending action. Stated
another way, the Court may not certify an abstract question of law that is not being
presented to the Court for decision and that has no bearing on any matter pending before
Mr. Jimenez does not assert any claims for relief in the habeas corpus application
and he insists that he seeks only to have the Court certify questions of state law to the
Colorado Supreme Court. Because the Court may not certify the state law questions to
the Colorado Supreme Court in the absence of a pending action in which those questions
are relevant, the application will be denied and the action will be dismissed. The Court
also finds that it would be futile to give Mr. Jimenez an opportunity to file an amended
habeas corpus pleading because the Court recently dismissed on the merits an
application for writ of habeas corpus in which Mr. Jimenez challenged the validity of his
Colorado state court conviction and sentence, see Jimenez v. Colo. Dep’t of Corrections,
No. 15-cv-01006-LTB (D. Colo. July 8, 2015), and there is no indication that he has
sought or obtained authorization to file a second or successive application.
The Court does certify 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 Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant
to 28 U.S.C. § 1915 in a Habeas Corpus Action (ECF No. 2) is denied as moot. It is
FURTHER ORDERED the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241 (ECF No. 1) is denied and the action is dismissed without prejudice. 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
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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