Maske v. Estrada , 357 F. App'x 986 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 23, 2009
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
JERRY MASKE,
Petitioner - Appellant,
v. No. 09-1439
(D. Colorado)
VALERIE ESTRADA; THE (D.C. No. 1:09-CV-02189-ZLW)
ATTORNEY GENERAL OF THE
STATE OF COLORADO,
Respondents - Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before HARTZ, SEYMOUR, and ANDERSON, Circuit Judges.
I. BACKGROUND
Jerry L. Maske filed an application under 28 U.S.C. §2254 in the United
States District Court for the District of Colorado on September 14, 2009. The
application was assigned civil docket number 1:09-cv-02189-ZLW. The only
claim raised in the application is that Mr. Maske’s sentence in Case
No. 07GS163385 in the Denver County district court “was based on an
unreasonable determination of the facts in light of evidence presented in the state
court proceedings.” R. at 5. The district court dismissed the application without
prejudice on the ground that it was duplicative of his claim in Maske v. Estrada,
et al., No. 09-cv-02163-BNB (D. Colo. filed Sept. 10, 2009).
Mr. Maske then submitted to the district court several letters asserting that
the court does not respect the rights of disabled individuals and pro se litigants,
requesting the return of the filing fees that he paid in seven previous cases,
challenging the dismissal of his case as frivolous or malicious, requesting that the
district judge recuse herself, seeking a change of venue to another state, and
demanding an immediate appeal. The court denied all requested relief.
Mr. Maske now requests a certificate of appealability (COA) from this
court so that he can pursue an appeal. See 28 U.S.C. § 2253(c)(1)(A) (requiring a
COA to appeal denial of habeas application). Although his application for a COA
is not entirely clear, we understand him to be raising the following issues: (1)
whether evidence was fabricated; (2) whether he was subjected to a false arrest
and unreasonable searches and seizures; and (3) whether he was deprived of due
process. In his supporting brief he also appears to raise claims that (4) he was
stereotyped as mentally ill and dangerous, in violation of his due-process rights;
(5) he was subjected to excessive force used on individuals with disabilities, in
violation of the Eight Amendment; (6) he was denied equal protection because of
his disability; (7) he was tried by a kangaroo court; and (8) he was injured by the
failure to keep individuals with disabilities from harm.
II. DISCUSSION
-2-
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, an 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.Mr. Maske’s pleadings in this court do not deny that his original
application under § 2254 was duplicative of a previous application. The issues
that he raises in this court may not repeat those raised in his previous § 2254
application, but they were not raised in his original application in district court,
so we decline to review them. See Grubbs v. Hannigan, 982 F.2d 1483, 1484 n.1
-3-
(10th Cir. 1993). Accordingly, no reasonable jurist could debate whether
Mr. Maske’s application under § 2254 should have been resolved in a different
manner or that the issues he presented were adequate to deserve encouragement to
proceed further. See Slack, 529 U.S. at 484.
III. CONCLUSION
We DENY the application for a COA. Because the application for a COA
was frivolous, we DENY the request to proceed in forma pauperis.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
-4-