Crawford v. Milyard, 10th Cir. (2009)

FILED
United States Court of Appeals

Tenth Circuit
October 20, 2009

UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT
Clerk of Court
DOUGLAS LEE CRAWFORD,

Petitioner-Appellant,
v.
No. 09-1323
(D. of Colo.)
KEVIN MILYARD, Warden, Sterling

Correctional Facility, and THE
ATTORNEY GENERAL OF THE
STATE OF COLORADO,
(D.C. No. 08-CV-2642-ZLW)
Respondents-Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges. **
Douglas Lee Crawford, a state prisoner proceeding pro se, 1 seeks a

certificate of appealability (COA) to appeal the district courts dismissal of his 28
U.S.C. 2254 habeas petition. The district court found that Crawfords petition
This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
1
Because Crawford is proceeding pro se, we view his filings liberally. See
Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).
was an unauthorized successive petition and dismissed it for lack of jurisdiction.

This court has jurisdiction under 28 U.S.C. 2253.
We DENY Crawfords request for a COA, DISMISS the appeal, and DENY
Crawfords request to proceed in forma pauperis.
I. Background
In 1986, Crawford was convicted in Colorado state court on charges of
first-degree murder, menacing, and first-degree burglary. He was sentenced to
life imprisonment. Crawford filed his first 2254 petition in May 2008. The
district court denied the petition, finding it time barred. D. Order, dated
August 14, 2008.
In November 2008, Crawford filed this habeas petition. The district court
concluded that, despite the inclusion of language professing otherwise, the
petition attacks the same judgment of conviction that Crawfords previous
petition did. The district court ruled that the November 2008 petition is an
unauthorized successive 2254 application and, like Crawfords first habeas
petition, is time barred. The district court held that it was not in the interest of
justice to transfer the instant petition to this court for authorization and, instead,
dismissed it for lack of jurisdiction.
-2-
II. Discussion
A 2254 petitioner must obtain a COA before appealing from a final order
in a habeas proceeding. See 28 U.S.C. 2253(c)(1)(A). [O]nly if the applicant
has made a substantial showing of the denial of a constitutional right will the
court issue a COA. See 28 U.S.C. 2253(c)(2). When, as here, the district court
denies the petitioners claim on procedural grounds, we will not issue a COA
unless the petitioner demonstrates: [(1)] that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right and [(2)] that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484
(2000). Where possible, courts should resolve cases based on this tests second
prong. Id. at 485.
Before a state prisoner may file a second or successive 2254 petition, the
prisoner must first move in the appropriate court of appeals for an order
authorizing the district court to consider the application. 28 U.S.C.
2244(b)(3)(A). The court will only authorize a successive petition when the
petitioner relies on a new rule of constitutional law or newly discovered evidence.
See 28 U.S.C. 2244(b)(2)(A)S(B), (b)(3)(C).
When a second or successive 2254 [] claim is filed in the district
court without the required authorization from this court, the district
court may transfer the matter to this court if it determines it is in the
interest of justice to do so under [28 U.S.C.] 1631, or it may
dismiss the [] petition for lack of jurisdiction.
-3-
In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008). A transfer is not in the interest
of justice when the claims raised in the successive petition clearly do not meet the
requirements set forth in 28 U.S.C. 2244(b)(2). See In re Cline, 531 F.3d at
1252. In determining whether a transfer is in the interest of justice, a district
court should consider whether the claims would be time barred if filed in the
proper forum, whether the claims are meritorious, and whether the claims were
filed in good faith. See id. at 1251.
It is clear from the record that the district courts procedural ruling was
undebatably correct. See Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994)
(This court has repeatedly insisted that pro se parties follow the same rules of
procedure that govern other litigants.). Crawford has not argued that any of his
claims are based on a new rule of constitutional law or newly discovered
evidence. See 28 U.S.C. 2244(b)(2)(A)S(B). Moreover, as the district court
concludedand as Crawford does not contestall of the claims in Crawfords
petition are time barred.
III. Conclusion
For the foregoing reasons, we DENY Crawfords application for a COA
and DISMISS this appeal. We also DENY Crawfords request to proceed in
forma pauperis on appeal. While Crawford has shown a financial inability to pay
the required fees, he has not demonstrated a reasoned, non-frivolous argument on
-4-
the law and facts in support of the issues raised on appeal. See McIntosh v. U.S.
Parole Commn, 115 F.3d 809, 812S13 (10th Cir. 1997).
Entered for the Court,
Timothy M. Tymkovich
Circuit Judge
-5-

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FILED

United States Court of Appeals

October 20, 2009

DOUGLAS LEE CRAWFORD,

KEVIN MILYARD, Warden, Sterling

(D.C. No. 08-CV-2642-ZLW)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges. **

Douglas Lee Crawford, a state prisoner proceeding pro se, 1 seeks a

was an unauthorized successive petition and dismissed it for lack of jurisdiction.

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