Vonkrosigk v. Schriro , 384 F. App'x 812 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
June 30, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
DEAN VONKROSIGK,
Petitioner - Appellant, No. 10-8020
v. (D. Wyoming)
DORA SCHRIRO, GREG FIZER, (D.C. No. 2:09-CV-00067-WFD)
WYOMING ATTORNEY GENERAL,
Respondents - Appellees.
ORDER DENYING
CERTIFICATE OF APPEALABILITY *
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this matter. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Dean Vonkrosigk, an Arizona state prisoner proceeding pro se, seeks a
certificate of appealability (“COA”) in order to appeal the denial of his 28 U.S.C.
*
This order and judgment is not binding precedent except under the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.
2241 petition 1 challenging the execution of his sentence. We deny him a COA
and dismiss this matter.
BACKGROUND
On November 15, 2001, Mr. Vonkrosigk was convicted of one count of
acquiring a controlled substance by misrepresentation, in violation of Wyo. Stat.
Ann. § 35-7-1033(a)(iii). He was sentenced to three to five years, but that
sentence was suspended in favor of a five-year period of probation.
On July 10, 2003, Mr. Vonkrosigk was convicted of one count of
possession with intent to distribute methamphetamine, in violation of Wyo. Stat.
Ann. § 35-7-1031(a)(i). The trial court in that case imposed a sentence of four to
ten years’ imprisonment. Additionally, on that same date, the trial court revoked
Mr. Vonkrosigk’s probation in the earlier case involving the acquisition of a
controlled substance by misrepresentation. The trial court reimposed the sentence
in that case, to run concurrently with the sentence for the methamphetamine
conviction. Mr. Vonkrosigk did not appeal either of his convictions or sentences.
Mr. Vonkrosigk was released to parole on June 30, 2006. As part of his
parole, he waived extradition. Soon thereafter, he absconded from parole, and a
warrant for his arrest was issued in October 2006. Mr. Vonkrosigk was stopped
1
Mr. Vonkrosigk initially filed this petition as a 28 U.S.C. § 2254 petition,
but the district court correctly converted it to a 28 U.S.C. § 2241 petition.
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for a vehicular equipment violation in Arizona in November 2006, where
authorities discovered the Wyoming warrant for his arrest. He was accordingly
arrested on the Wyoming warrant, as well as on felony drug charges stemming
from a search of his car in Arizona.
In May 2007, Mr. Vonkrosigk was convicted of felony drug charges in
Arizona and was sentenced to eight years’ imprisonment in Arizona.
Mr. Vonkrosigk remains in the custody of the Arizona Department of Corrections
pursuant to that felony conviction.
The Wyoming Board of Parole has asked the Arizona authorities to place a
“hold” on Mr. Vonkrosigk, and has further asked the Arizona authorities to
contact the Board upon Mr. Vonkrosigk’s release so that he may be returned to
Wyoming to complete his sentences in that state. On February 5, 2008,
Mr. Vonkrosigk submitted a letter to the Wyoming Board of Parole asking it
either to drop the “hold” placed on him, or bring him to Wyoming now for parole
revocation proceedings. The Board denied that request, and informed him that he
would be returned to Wyoming for parole revocation proceedings upon
completion of his Arizona sentence.
On July 18, 2008, Mr. Vonkrosigk filed in the Wyoming state court a
Motion to Enforce the Correct and Legal Sentence. He asked the court to declare
that he was serving his Wyoming sentences while incarcerated in Arizona on his
Arizona conviction. The trial court denied the motion without comment on
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July 24, 2008. Mr. Vonkrosigk appealed that denial to the Wyoming Supreme
Court, which dismissed the appeal after determining that the motion was not
cognizable in either the trial court or the Wyoming Supreme Court.
Mr. Vonkrosigk then filed the instant petition in Wyoming federal district
court. A § 2241 petition is designed to attack the execution of a sentence and
must be filed in the district where the prisoner is confined. See Bradshaw v.
Story, 86 F.3d 164, 166 (10th Cir. 1996). Relief cannot be granted to a prisoner
under § 2241, however, unless:
(1) He is in custody under or by color of the authority of the United
States or is committed for trial before some court thereof; or
(2) He is in custody for an act done or omitted in pursuance of an Act
of Congress, or an order, process, judgment or decree of a court or
judge of the United States; or
(3) He is in custody in violation of the Constitution or laws or
treaties of the United States; or
(4) He, being a citizen of a foreign state and domiciled therein, is in
custody for an act done or omitted under any alleged right, title,
authority, privilege, protection, or exemption claimed under the
commission, order or sanction of any foreign state, or under color
thereof, the validity and effect of which depend upon the law of
nations; or
(5) It is necessary to bring him into court to testify or for trial.
28 U.S.C. § 2241.
The only subsection which could apply to Mr. Vonkrosigk is subsection (3).
As he does not allege a violation of any treaty, in order to prevail under § 2241,
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Mr. Vonkrosigk must demonstrate a violation of the Constitution or laws of the
United States. He claims that the Wyoming Board of Parole’s refusal to bring
him to Wyoming for a parole revocation hearing, or to conduct such a hearing in
absentia, violates his constitutional right to due process and his protection against
Double Jeopardy. The district court denied Mr. Vonkrosigk’s petition, finding
that neither his due process nor double jeopardy rights were violated. The court
did not act on Mr. Vonkrosigk’s request for a COA; accordingly, he has asked
this court to issue one. The respondent has not filed a brief.
DISCUSSION
Under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), a
COA is a jurisdictional prerequisite to our review of the dismissal of a § 2241
petition. See 28 U.S.C. § 2253(c)(1)(A); Clark v. Oklahoma, 468 F.3d 711, 713
(10 th Cir. 2006). We will issue a COA “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). To make this showing, Mr. Vonkrosigk must establish that “jurists
of reason could disagree with the district court’s resolution of his constitutional
claims or that jurists could conclude [that] the issues presented are adequate to
deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322,
327 (2003). Where the district court has rejected a claim on its merits, the
“petitioner must demonstrate that reasonable jurists would find the district court’s
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assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,
529 U.S. 473, 484 (2000).
The district court addressed both of Mr. Vonkrosigk’s arguments on their
merits. It explained that, with respect to Mr. Vonkrosigk’s due process argument,
our court had previously addressed this issue in McDonald v. New Mexico Parole
Board, 955 F.2d 631 (10th Cir. 1991) and resolved it adversely to Mr.
Vonkrosigk’s argument. We agree with that assessment. We also agree with the
court’s rejection of Mr. Vonkrosigk’s double jeopardy argument. As the court
explained:
The double jeopardy clause is inapplicable here. Petitioner is
serving two separate sentences for convictions in two different states.
Before fully serving his Wyoming sentence, he absconded. When
released from his Arizona sentence, he will be returned to Wyoming
for parole revocation proceedings. If the Board decides to revoke his
parole, it will also decide whether Petitioner will receive credit
against his Wyoming sentence for any time between his release on
parole and his return to Wyoming. This decision rests within the
discretion of the Board. In sum, the Court finds that Petitioner’s
second claim is without merit and must be denied.
Order at 8 (citations omitted). We cannot improve on that analysis. Thus,
Mr. Vonkrosigk has failed to show that jurists of reason could debate the
propriety of the district court’s resolution.
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CONCLUSION
For the foregoing reasons, we DENY a COA and dismiss this matter.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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