Chavez v. State of New Mexico ( 2018 )

                                                                                FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS                        Tenth Circuit
FOR THE TENTH CIRCUIT                          March 26, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
STEVAN CHAVEZ,
Petitioner - Appellant,
v.                                                          No. 17-2207
(D.C. No. 1:17-CV-00756-RB-LF)
STATE OF NEW MEXICO;                                         (D. N.M.)
V. HORTON; SECOND JUDICIAL
DISTRICT,
Respondents - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HOLMES, O’BRIEN, and BACHARACH, Circuit Judges.
_________________________________
Stevan Chavez is a state prisoner proceeding pro se. In 1999, he pleaded
guilty in New Mexico state court to three counts of first degree murder and was
sentenced to three life sentences. In 2017, he filed a motion seeking relief from his
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist in the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument. This order and judgment
is not binding precedent, except under the doctrines of law of the case, res judicata,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.
state sentences pursuant to 28 U.S.C. § 22541 and 18 U.S.C. § 3582(c)(2). The
district court dismissed both requests for lack of jurisdiction. Mr. Chavez now
appeals from the district court’s dismissal of his request for sentencing relief
pursuant to 18 U.S.C. § 3582(c)(2). He also seeks a certificate of appealability
(COA) to appeal from the district court’s dismissal of his 28 U.S.C. § 2254 habeas
petition. We affirm the district court’s dismissal of the request for relief pursuant to
§ 3582(c)(2), and we deny a COA to appeal from the dismissal of the § 2254 habeas
petition.
In 2003, Mr. Chavez filed his first habeas petition, which the district court
dismissed as time-barred. As the district court explained, the dismissal of
Mr. Chavez’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.’”
R. at 18 (quoting In re Rains, 

659 F.3d 1274

, 1275 (10th Cir. 2011) (per curiam)). In
the underlying petition, Mr. Chavez again sought to challenge his same convictions
and sentences. Because he had not received authorization from this court to file a
successive § 2254 habeas petition, the district court dismissed the petition for lack of
jurisdiction. See In re Cline, 

531 F.3d 1249

, 1251 (10th Cir. 2008) (per curiam).
1
Although Mr. Chavez indicated in his filing that he was seeking relief under
28 U.S.C. § 2255, the district court explained that § 2255 applies only to prisoners in
federal custody seeking to challenge a federal conviction or sentence. Because
Mr. Chavez is in state custody and he seeks relief from his state convictions and
sentences, the district court construed the filing as a § 2254 habeas petition.
Mr. Chavez does not challenge the district court’s decision to construe his filing as a
§ 2254 habeas petition.
2
Mr. Chavez now seeks a COA to appeal from the dismissal of his § 2254
habeas petition. To obtain 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). He
has not made this showing.
A prisoner may not file a second or successive § 2254 habeas petition unless
he first obtains an order from the circuit court authorizing the district court to
consider the petition. 28 U.S.C. § 2244(b)(3)(A). Absent such authorization, a
district court lacks jurisdiction to address the merits of a second or successive § 2254
habeas petition. See 

Cline, 531 F.3d at 1251

.
In his request for a COA, Mr. Chavez does not explain how the district court
erred in either determining that his § 2254 habeas petition was second or successive
or in dismissing his petition for lack of jurisdiction because he had not received the
requisite circuit-court authorization. Instead, he argues the merits of his underlying
successive habeas claims. Reasonable jurists could not debate the district court’s
procedural ruling to dismiss Mr. Chavez’s unauthorized second or successive § 2254
habeas petition for lack of jurisdiction. Accordingly, we deny his request for a COA.
As for Mr. Chavez’s request for sentencing relief pursuant to § 3582(c)(2), the
district court explained: “‘Federal courts generally lack jurisdiction to modify a term
of imprisonment once it has been imposed. . . . But a district court may modify a
sentence when it is statutorily authorized to do so.” R. at 21 (quoting United States
3
v. Graham, 

704 F.3d 1275

, 1277 (10th Cir. 2013) (alteration in original)). Section
3582(c)(2) authorizes a district court to reduce a sentence “based on a sentencing
range that has subsequently been lowered by the Sentencing Commission.” Because
§ 3582(c)(2) is a federal criminal statute and does not apply to a state prisoner
sentenced under state law like Mr. Chavez, the district court dismissed this request
for lack of jurisdiction. In his combined opening brief and request for a COA,
Mr. Chavez does not explain how the district court erred in dismissing for lack of
jurisdiction his request for sentencing relief pursuant to § 3582(c)(2). Accordingly,
he has waived any challenge to that dismissal and we affirm the district court’s
decision. See Tran v. Trustees of State Colleges in Colorado, 

355 F.3d 1263

, 1266
(10th Cir. 2004) (“Issues not raised in the opening brief are deemed abandoned or
waived.” (internal quotation marks omitted)).
For the foregoing reasons, we deny Mr. Chavez’s request for a COA to appeal
from the dismissal of his § 2254 habeas petition and we affirm the district court’s
dismissal of his request for relief pursuant to § 3582(c)(2). We also deny as moot
Mr. Chavez’s request to proceed without prepayment of costs or fees. The relevant
statute does not permit litigants to avoid payment of filing and docketing fees, only
prepayment of those fees. See 28 U.S.C. § 1915(a)(1), (b)(1). Mr. Chavez remains
obligated to pay all filing and docketing fees.
Entered for the Court
Per Curiam
4