Hamlin v. Zavaras ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
May 20, 2013
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JOJO HAMLIN,
Petitioner - Appellant,
v. No. 12-1345
(D.C. No. 1:11-CV-01386-CMA)
ARISTEDES W. ZAVARAS; THE (D. Colo.)
ATTORNEY GENERAL OF THE
STATE OF COLORADO,
Respondents - Appellees.
ORDER DENYING CERTIFICATE
OF APPEALABILITY *
Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.
Petitioner-Appellant JoJo Hamlin, a state prisoner proceeding pro se, 1 seeks
a certificate of appealability (“COA”) to challenge the district court’s denial of
his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Mr. Hamlin
also requests leave to proceed in forma pauperis (“IFP”). Having thoroughly
*
This order is not binding precedent except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
1
Because Mr. Hamlin is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v.
Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).
reviewed the relevant law and the record, we deny Mr. Hamlin’s request for a
COA, deny his motion to proceed IFP, and dismiss this matter.
I
Following a jury trial, Mr. Hamlin was convicted of second-degree assault
as a complicitor. On direct appeal, the Colorado Court of Appeals (“CCA”)
affirmed his conviction and sentence. The Colorado Supreme Court denied his
petition for certiorari. Mr. Hamlin then filed a motion for post-conviction relief
pursuant to Colorado Rule of Criminal Procedure 35(c). The trial court denied his
motion, and the CCA affirmed. Again, the Colorado Supreme Court denied Mr.
Hamlin’s petition for certiorari. Mr. Hamlin filed another motion for post-
conviction relief, this time pursuant to Colorado Rule of Criminal Procedure
35(a). The trial court denied his motion, and Mr. Hamlin failed to appeal.
Mr. Hamlin next sought relief in federal court, filing a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. He asserted six claims in his
petition: (1) the trial court erred by improperly applying Colo. Rev. Stat.
§ 18-1.3-406(1)(a) to his sentence; (2) the trial court erred in not granting a
motion for mistrial or permitting evidence of an inconsistent statement made by a
State witness; (3) the trial court erred in allowing him to be found guilty under a
complicity theory; (4) the jury was required to make the factual determinations
that increased his sentence above the statutory maximum; (5) the Colorado
Department of Corrections misapplied his presentence confinement credit; and (6)
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the complicity jury instruction given at trial was legally erroneous.
In two separate orders, the district court dismissed all of Mr. Hamlin’s
claims and denied him a COA. It determined that claim one was procedurally
barred in part and failed on the merits in part; that claims two, three, and four
were procedurally barred; that claim five was a challenge to the execution of his
sentence and thus must be brought pursuant to 28 U.S.C. § 2241; and that claim
six failed on the merits.
II
A COA is a jurisdictional prerequisite to our review of the merits of
a § 2254 appeal. See 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S.
322, 327 (2003); see also Gonzalez v. Thaler, 132 S. Ct. 641, 647–49 (2012)
(discussing, inter alia, the “clear” jurisdictional language in § 2253(c)(1)). We
will issue a COA only if the applicant makes “a substantial showing of the denial
of a constitutional right.” Woodward v. Cline, 693 F.3d 1289, 1292 (10th Cir.
2012) (quoting 28 U.S.C. § 2253(c)(2)) (internal quotation marks omitted). “To
make such a showing, an applicant must demonstrate ‘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.’” Harris v. Dinwiddie, 642 F.3d 902,
906 (10th Cir. 2011) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
When the district court denies relief “on procedural grounds, the applicant
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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.’” Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008) (quoting
Slack, 529 U.S. at 484). “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
[applicant] should be allowed to proceed further.” Woodward, 693 F.3d at 1292
(quoting Slack, 529 U.S. at 484) (internal quotation marks omitted).
III
Mr. Hamlin now seeks a COA from our court for two of the six claims he
raised before the district court—viz., claims one and four. Pursuant to the
framework that the Supreme Court set out in Miller-El and Slack, we have
carefully reviewed Mr. Hamlin’s combined opening brief and application for
COA as well as the record, including both of the district court’s orders denying
Mr. Hamlin habeas relief and a COA. Based upon this review, we conclude that
Mr. Hamlin is not entitled to a COA on any of his claims because he has not made
a substantial showing of the denial of a constitutional right. For substantially the
same reasons articulated by the district court, reasonable jurists could not debate
whether his § 2254 motion should have been resolved in a different manner, and
the issues that he seeks to raise on appeal are not adequate to deserve
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encouragement to proceed further.
Additionally, we deny Mr. Hamlin’s motion to proceed IFP, as he has failed
to present a “reasoned, nonfrivolous argument on the law and facts in support of
the issues raised on appeal.” Caravalho v. Pugh, 177 F.3d 1177, 1177 (10th Cir.
1999).
IV
Accordingly, we deny Mr. Hamlin’s request for a COA, deny his motion to
proceed IFP, and dismiss this matter.
Entered for the Court
JEROME A. HOLMES
Circuit Judge
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