Alexander v. Mullarkey , 340 F. App'x 455 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
August 4, 2009
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT
CLAY ALEXANDER,
Plaintiff - Appellant,
v. No. 09-1174
(D.C. No. 09-cv-00379-ZLW)
MARY MULLARKEY, as Chief (D. Colo.)
Justice for Colorado Supreme Court,
Defendant - Appellee.
ORDER & JUDGMENT *
Before KELLY, BRISCOE, and HOLMES, Circuit Judges.
Clay Alexander appeals the dismissal of his complaint filed under 42 U.S.C
§ 1983 and moves this court to allow him to proceed in forma pauperis (“IFP”) on
appeal. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM the
district court’s order of dismissal and DENY Mr. Alexander’s motion to proceed
*
This Order and Judgment is not binding precedent, except under the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. After examining the Appellant’s brief 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 case is therefore ordered submitted without oral
argument.
IFP. 1
BACKGROUND
Mr. Alexander, a Colorado state prisoner, filed a pro se § 1983 complaint,
alleging that he is being denied his constitutional right of access to the courts
because the Colorado courts have failed to appoint counsel for his state court
postconviction relief proceedings. Mr. Alexander named Mary Mullarkey, the
Chief Justice of the Colorado Supreme Court, as the defendant and asked that an
injunction be issued directing her to stop denying him his right to counsel.
Alternatively, he requested a declaration that he has satisfied the exhaustion
requirement for seeking federal habeas corpus relief. The district court dismissed
the complaint as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Mr.
Alexander now appeals.
DISCUSSION
An action is frivolous under § 1915(e)(2)(B)(i) if “the claim [is] based on
an indisputably meritless legal theory or if it is founded on clearly baseless
factual contentions.” Schlicher v. Thomas, 111 F.3d 777, 779 (10th Cir. 1997)
(alteration in original) (internal quotation marks omitted). “We generally review
a district court’s dismissal for frivolousness under § 1915 for abuse of
1
Because Mr. Alexander is proceeding pro se, we construe his filings
liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Howard v. U.S.
Bureau of Prisons, 487 F.3d 808, 815 (10th Cir. 2007).
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discretion.” Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006). “However,
where the frivolousness determination turns on an issue of law, we review the
determination de novo.” Id.Mr. Alexander “seeks [an] injunction in [the] form of [an] order for access
to counsel, so that he can file [an] adequate petition for certiorari in Colorado’s
supreme court.” See Aplt. Br. at 5. Since Mr. Alexander is proceeding under §
1983, he must allege that some person acting under color of state law has
deprived him of a federally protected right. See Lugar v. Edmondson Oil Co., 457
U.S. 922, 924 (1982) (“Title 42 U.S.C. § 1983 provides a remedy for deprivations
of rights secured by the Constitution and laws of the United States when that
deprivation takes place ‘under color of any statute, ordinance, regulation, custom,
or usage, of any State or Territory . . . .’” (quoting 42 U.S.C. § 1983)); Houston v.
Reich, 932 F.2d 883, 890 (10th Cir. 1991).
Mr. Alexander’s claim is frivolous because it is well settled that there is no
constitutional or other federal right to the assistance of counsel in postconviction
proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“[T]he right
to appointed counsel extends to the first appeal of right, and no further.”).
“States have no obligation to provide [postconviction] relief, and when they do,
the fundamental fairness mandated by the Due Process Clause does not require
that the State supply a lawyer as well.” Id. at 557 (citation omitted). Therefore,
Mr. Alexander has failed to assert an actionable claim pursuant to § 1983, and the
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district court properly dismissed his claim as frivolous. 2
Mr. Alexander also requests that we “issue a judgment holding that [he] has
exhausted state remedies and may file under federal habe[a]s corpus.” Aplt. Br.
at 5. We deny this request. “It is fundamental that federal courts do not render
advisory opinions and that they are limited to deciding issues in actual cases and
controversies.” United States v. Burlington N. R.R., 200 F.3d 679, 699 (10th Cir.
1999) (internal quotation marks omitted). Since Mr. Alexander does not seek
habeas relief, any statement from us concerning whether he exhausted state
remedies clearly would be an improper advisory opinion.
Finally, Mr. Alexander seeks leave to proceed IFP. Because he has failed
to demonstrate the existence of “a reasoned, nonfrivolous argument on the law
and facts in support of the issues raised on appeal,” McIntosh v. U.S. Parole
Comm’n, 115 F.3d 809, 812 (10th Cir. 1997) (internal quotation marks omitted),
we deny his request.
2
To the extent Mr. Alexander makes a distinct argument that state
authorities unconstitutionally denied him access to the courts, we agree with the
district court’s conclusion: this argument is patently frivolous. See, e.g., Wolff v.
McDonnell, 418 U.S. 539, 576 (1974); see also Carper v. DeLand, 54 F.3d 613,
617 (10th Cir. 1995) (“[A]n inmate’s right of access does not require the state to
supply legal assistance beyond the preparation of initial pleadings in a civil rights
action regarding current confinement or a petition for a writ of habeas corpus.”).
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CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment,
DENY Mr. Alexander’s request to proceed IFP, and order him to make immediate
payment of the unpaid balance due. 3
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
3
We deny all of Mr. Alexander’s pending motions, which essentially
seek expedited consideration of his appeal, as moot.
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