Saenz-Jurado v. Suthers , 396 F. App'x 480 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
September 17, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
ABEL SAENZ-JURADO,
Petitioner - Appellant,
No. 10-1170
v.
(D. Colorado)
(D.C. No. 1:09-CV-03018-ZLW)
JOHN W. SUTHERS, The Attorney
General of the State of Colorado,
Respondent - Appellee.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.
This matter is before the court on Abel Saenz-Jurado’s pro se requests for a
certificate of appealability (“COA”) and for permission to proceed on appeal in
forma pauperis. Saenz-Jurado seeks a COA so he can appeal the district court’s
dismissal, on timeliness grounds, 1 of his 28 U.S.C. § 2241 petition. See 28 U.S.C.
§ 2253(c)(1)(A) (providing no appeal may be taken from a “final order in a
habeas proceeding in which the detention complained of arises out of process
issued by a State court” unless the petitioner first obtains a COA); Montez v.
1
28 U.S.C. § 2244(d)(1) (setting out a one-year statute of limitations on
habeas petitions running from the date on which the conviction became final).
McKinna, 208 F.3d 862, 867 n.6 (10th Cir. 2000) (“[A] federal prisoner seeking
to challenge a detainer arising out of process issued by a state court must obtain a
COA in order to appeal a district court order denying relief.”). We grant Saenz-
Jurado’s request to proceed on appeal in forma pauperis. Because he has not,
however, “made a substantial showing of the denial of a constitutional right,”
28 U.S.C. § 2253(c)(2), this court denies Saenz-Jurado’s request for a COA and
dismisses this appeal.
The granting of a COA is a jurisdictional prerequisite to Saenz-Jurado’s
appeal from the denial of his § 2241 petition. Miller-El v. Cockrell, 537 U.S.
322, 336 (2003). To be entitled to a COA, Saenz-Jurado must make “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
make the requisite showing, he must demonstrate “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.” Id. (quotations omitted). When a district
court dismisses a § 2241 petition on procedural grounds, a petitioner is entitled to
a COA only if he shows both that reasonable jurists would find it debatable
whether he had stated a valid constitutional claim and debatable whether the
district court’s procedural ruling was correct. Slack v. McDaniel, 529 U.S. 474,
484-85 (2000). “Each component of [this necessary] showing is part of a
threshold inquiry, and a court may find that it can dispose of the application in a
-2-
fair and prompt manner if it proceeds first to resolve the issue whose answer is
more apparent from the record and arguments.” Id. at 485. In evaluating whether
Saenz-Jurado has satisfied his burden, this court undertakes “a preliminary,
though not definitive, consideration of the [legal] framework” applicable to each
of his claims. Miller-El, 537 U.S. at 338. Although he need not demonstrate his
appeal will succeed to be entitled to a COA, he must “prove something more than
the absence of frivolity or the existence of mere good faith.” Id.Saenz-Jurado is currently in the custody of the United States Bureau of
Prisons serving a 159-month sentence for conspiracy to possess with intent to
distribute 500 grams or more of cocaine. In his § 2241 motion, Saenz-Jurado
challenges a detainer lodged against him by Colorado state officials. Saenz-
Jurado asserts that Colorado’s refusal to timely adjudicate his parole-revocation
petition violates his Sixth Amendment right to a speedy trial. In resolving the
§ 2241 petition, the federal district court first set out at length the numerous
procedural machinations surrounding Saenz-Jurado’s attempts to have the
Colorado state courts adjudicate his parole revocation proceedings. The district
court ultimately concluded Saenz-Jurado’s petition was time barred pursuant to
§ 2244(d). This court need not determine whether the district court’s procedural
ruling is correct because Saenz-Jurado has not stated a debatable constitutional
claim. Slack, 529 U.S. at 485.
-3-
By its very terms, the Sixth Amendment applies only to criminal
prosecutions. U.S. Const. amend. VI (“In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial . . . .”). The Supreme Court has
made clear that parole revocation “is not a stage of a criminal prosecution.”
Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973). Accordingly, courts have
uniformly concluded the Sixth Amendment right to a speedy trial does not apply
to parole revocation hearings. See, e.g., Bennett v. Bogan, 66 F.3d 812, 818 (6th
Cir. 1995); United States v. Williams, 558 F.2d 224, 226 (5th Cir. 1977); Moultrie
v. Georgia, 464 F.2d 551, 552 (11th Cir. 1972); Kartman v. Parratt, 535 F.2d
450, 455 (8th Cir. 1976). Nor can Saenz-Jurado make out a due process claim
under the facts of this case. Moody v. Daggett, 429 U.S. 78, 86-91 (1976)
(holding under circumstances remarkably similar to those in instant case that
parole commission was under no constitutional duty to adjudicate a parole-
revocation warrant until that warrant was executed and the parolee taken into
custody as a parole violator).
Because Saenz-Jurado has not stated a debatable constitutional claim in his
habeas petition, he is not entitled to a COA. Slack, 529 U.S. at 485.
-4-
Accordingly, this court DENIES Saenz-Jurado’s request for a COA and
DISMISSES this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
-5-