Tillotson v. McCoy et al

Filing 4

ORDER dismissing this action, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 10/20/15. No certificate of appealability will issue, and 3 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-02300-GPG
CHRIS TILLOTSON,
Applicant,
v.
T. J. McCOY, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Chris Tillotson, is confined in the Colorado Mental Health Institute at
Pueblo, Colorado. Mr. Tillotson has filed pro se an Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) 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.
3). 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. Tillotson has paid
the $5.00 filing fee for this habeas corpus action.
The Court must construe the habeas corpus application liberally because Mr.
Tillotson 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. Tillotson alleges in the application that he is challenging the validity of his

custody pursuant to an order of the Arapahoe County District Court in case number
07CR2358 finding him not guilty by reason of insanity. He further alleges that he was
charged in case number 07CR2358 with assault on a police officer. Mr. Tillotson asserts
two claims for relief contending he was subjected to excessive force by Officer T. J.
McCoy (claim one) and that he is actually innocent of assaulting Officer McCoy (claim
two). As relief Mr. Tillotson seeks dismissal of the charges and damages for being
wrongfully imprisoned.
The Court notes initially that Mr. Tillotson may not pursue any claims for damages
in this habeas corpus action. “The essence of habeas corpus is an attack by a person in
custody upon the legality of that custody, and . . . the traditional function of the writ is to
secure release from illegal custody.” See Preiser v. Rodriguez, 411 U.S. 475, 484
(1973). If Mr. Tillotson wishes to pursue any claims for damages, he must do so in a
separate civil rights action.
With respect to the actual innocence claim, Mr. Tillotson fails to allege specific
facts that demonstrate his federal constitutional rights have been violated and he fails to
name his custodian as a Respondent. However, the Court will not require Mr. Tillotson
to file an amended pleading that clarifies his claim or claims and that names a proper
Respondent because the Court lacks jurisdiction to consider whatever federal
constitutional claim or claims Mr. Tillotson may be asserting.
Mr. Tillotson previously filed a habeas corpus action challenging the validity of his
custody resulting from Arapahoe County District Court case number 07CR2358. See
Tillotson v. May, No. 14-cv-00751-LTB (D. Colo. July 7), appeal dismissed, No. 14-1282,

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576 F. App’x 857 (10th Cir. Aug. 25, 2014). Although Mr. Tillotson fails to mention the
fact that he has filed a prior habeas corpus action challenging the validity of his custody
pertinent to Arapahoe County District Court case number 07CR2358, 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). The Court determined Mr. Tillotson’s claims in case number 14-cv-00751-LTB
were barred by the one-year limitation period and dismissed the action as untimely.
Therefore, because Mr. Tillotson is challenging the validity of the same custody in this
action, the application is a second or successive application. See In re Rains, 659 F.3d
1274, 1275 (10th Cir. 2011) (per curiam) (holding that “[t]he dismissal of Mr. Rains’s first
habeas petition as time-barred was a decision on the merits, and any later habeas
petition challenging the same conviction is second or successive and is subject to the
AEDPA requirements.”).
Pursuant to 28 U.S.C. § 2244(b)(3)(A), Mr. Tillotson 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 claims. 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

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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. Tillotson does not allege that he has obtained authorization from the Tenth
Circuit to file a second or successive § 2254 application. Therefore, the Court must
either dismiss the second or successive claims 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. Tillotson fails to demonstrate that his second or successive claims 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.
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Although it appears that Mr. Tillotson’s second or successive claims would be time-barred
if filed anew in the proper forum, it also appears that the claims would be time-barred even
if Mr. Tillotson had sought proper authorization prior to filing in this Court. There also is
no indication that the second or successive claims have any merit. Finally, it was clear
when the instant action was filed that this Court lacks jurisdiction over Mr. Tillotson’s
second or successive claims. 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 second or successive
claims 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 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. 3) is denied as moot. It is
FURTHER ORDERED that the habeas corpus application (ECF No. 1) is denied
and the action is dismissed for the reasons stated in this order. 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

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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

20th

day of

October

, 2015.

BY THE COURT:

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

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