Loggins v. Fisher , 598 F. App'x 598 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 17, 2015
Elisabeth A. Shumaker
Clerk of Court
VINCENT E. LOGGINS,
Petitioner − Appellant,
v. No. 15-1032
(D.C. No. 1:14-CV-02652-LTB)
BIRGET FISHER; RALPH CARR; THE (D. Colo.)
ATTORNEY GENERAL OF THE
STATE OF COLORADO,
Respondents − Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before BRISCOE, Chief Judge, TYMKOVICH and PHILLIPS, Circuit Judges.
Vincent E. Loggins seeks a certificate of appealability (COA) to appeal from
the district court’s dismissal of his 28 U.S.C. § 2254 application as a second or
successive application that the district court lacked jurisdiction to consider.
See 28 U.S.C. § 2244(b); In re Cline, 531 F.3d 1249, 1251-52 (10th Cir. 2008)
(per curiam). We deny a COA and dismiss this matter.
Mr. Loggins is being held at the Colorado Mental Health Institute in Pueblo,
Colorado. In commencing this action, he filed numerous documents with the district
*
This order is not binding precedent except under the doctrines of law of the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.
court, including an application under § 2254, a prisoner complaint under 42 U.S.C.
§ 1983, a complaint under Title VII of the Civil Rights Act, and other items. The
district court directed him to file either a § 2254 application or a prisoner complaint,
but not both in the same action. Ultimately Mr. Loggins filed a § 2254 application,
and the district court “proceed[ed] to review the action as filed pursuant to § 2254.”
R. at 166. Finding that Mr. Loggins had already pursued relief under § 2254 with
regard to the conviction identified in his new § 2254 application, the district court
held that the new application was a second or successive § 2254 application.
Because this court had not authorized the application, the district court held that it
lacked jurisdiction to consider it. The district court declined to transfer the
application to this court for authorization and instead dismissed it for lack of
jurisdiction.
To appeal, Mr. Loggins must obtain a COA. See 28 U.S.C. § 2253(c)(1)(A).
For a COA, he must show “that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right and 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).
Before this court, Mr. Loggins ignores the district court’s procedural decision
and focuses on the merits of his claims. The dispositive issue, however, is whether
the district court correctly dismissed his new § 2254 application for lack of
jurisdiction. If it lacked jurisdiction, it could not address the merits of his claims.
-2-
See Cline, 531 F.3d at 1251. As the district court concluded, Mr. Loggins already
has pursued relief under § 2254 with regard to the conviction identified in the new
§ 2254 application, and this court did not authorize the new application.
Accordingly, no reasonable jurist could debate the correctness of the district court’s
determination that it lacked jurisdiction to consider the new § 2254 application.
See Cline, 531 F.3d at 1251. Further, no reasonable jurist could debate the district
court’s decision to dismiss the matter, rather than to transfer it to this court. See id.
at 1252.
The motion to proceed without prepayment of costs and fees, as supplemented,
is denied because the documents submitted to this court indicate that Mr. Loggins has
monetary resources to pay the applicable costs and fees. The motion for release
pending appeal, as supplemented, is denied. A COA is denied and this matter is
dismissed.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
-3-