Barton v. Hunter ( 2018 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 29, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JORDAN SCOTT BARTON,
Petitioner - Appellant,
v. No. 18-5016
(D.C. No. 4:17-CV-00100-GKF-FHM)
MIKE HUNTER, Oklahoma Attorney (N.D. Okla.)
General,
Respondent - Appellee.
_________________________________
ORDER DENYING A CERTIFICATE OF APPEALABILITY
_________________________________
Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
_________________________________
Applicant Jordan Scott Barton seeks a certificate of appealability (COA) to appeal
the denial by the district court of his application for relief under 28 U.S.C. § 2254. See
28 U.S.C. § 2253(c)(1)(A) (requiring COA to appeal final order in habeas proceeding
challenging state-court detention). We decline to grant a COA and dismiss the appeal.
A COA will issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a
demonstration that . . . includes showing that reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). In other
words, the applicant must show that the district court’s resolution of the constitutional
claim was either “debatable or wrong.” Id. If the application was denied on procedural
grounds, the applicant faces a double hurdle. Not only must the applicant make a
substantial showing of the denial of a constitutional right, but he must also show “that
jurists of reason would find it debatable whether the district court was correct in its
procedural ruling.” Id. “Where a plain procedural bar is present and the district court is
correct to invoke it to dispose of the case, a reasonable jurist could not conclude either
that the district court erred in dismissing the petition or that the petitioner should be
allowed to proceed further.” Id.
The problem for Applicant is that “[t]o obtain relief under § 2254, the applicant
must be ‘in custody’ under the challenged judgment.” Anderson-Bey v. Zavaras, 641
F.3d 445, 453 (10th Cir. 2011). Applicant had already been released from custody when
he filed his application. In November 2015 he had been sentenced on the same day his
jury trial concluded to a one-year term of imprisonment and a $500 fine for domestic-
violence offenses. Because he was awarded credit for time served before sentencing, he
was promptly released from custody. He did not file his § 2254 application until
February 27, 2017. Recognizing that Applicant was not in custody when he filed his
application, the district court dismissed it without prejudice for lack of jurisdiction.
Nothing in Applicant’s brief to this court suggests that the district court’s
disposition was incorrect. At the outset it appears to acknowledge that Applicant was not
in custody when he filed the application. See Aplt. Br. at 1 (“The judge did not believe I
needed Domestic Violence Classes or Probation, which would have satisfied Habeas
2
Jurisdiction . . . . Since it was a Felony Domestic Violence case, I guess the clerk
misinformed me when she advised me to file a Habeas Corpus.”). Shortly thereafter,
however, the brief states: “I am nonetheless asking the United States of America, for a
release from UNLAWFUL CUSTODY, stemming from the ILLEGAL and ongoing
Deprivation of My Personal Liberty to Parent My Children, the MOST SACRED
LIBERTY to any natural creature of Earth.” Aplt. Br. at 2. Perhaps Applicant has a
claim for the improper denial of his parental rights. But that denial would not place him
in “custody” for the purposes of § 2254. The only custody at issue in a parental-rights
case is the custody of the child.
Because Applicant was not in custody when he filed his application, relief is not
available to him under § 2254. The correctness of the district court’s ruling could not be
debated by a reasonable jurist.
CONCLUSION
We DENY a COA and dismiss the appeal. We DENY applicant’s motion to
proceed in forma pauperis.
Entered for the Court
Harris L Hartz
Circuit Judge
3