Sumbry v. Davis ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
June 2, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
LARRIANTE J. SUMBRY,
Petitioner - Appellant, Nos. 05-3028 & 05-2045
D. Kansas
v. (D.Ct. No. 04-CV-3496-SAC)
and
CECIL DAVIS, D. New Mexico
(D.Ct. No. CIV-04-1437 JB/ACT)
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY
AND DISMISSING APPEAL
Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See F ED . R. A PP . P. 34(a)(2); 10th Cir. R. 34.1.(G). The case is
therefore ordered submitted without oral argument.
Mr. Sumbry is a promiscuous as well as a frivolous filer. These pro se
appeals are from federal district courts in New Mexico (05-2045) and Kansas (05-
3028). They are consolidated for administrative purposes.
Mr. Sumbry was convicted in the Indiana state courts and is incarcerated in
Indiana. He filed an “Instant Uniform Treaty Writ of Habeas Corpus” in the
United States District Court for the District of New Mexico alleging he was
illegally arrested in Indiana and the Indiana courts were without jurisdiction. The
district court construed the filing as an application under 28 U.S.C. § 2254 and
dismissed it without prejudice to his right to pursue his claims in an appropriate
forum. It observed that while his “application may not be ‘clearly doomed, ’ [] he
presents no factual basis for the relief he seeks.” (R., Vol. I, Doc. 5, citing
Haugh v. Booker, 210 F.3d 1147, 1150 (10th Cir. 2000)). The court denied his
request for a certificate of appealability (COA), but permitted him to appeal in
forma pauperis (ifp). Mr. Sumbry has renewed his request for COA in this Court.
Mr. Sumbry also filed a petition for habeas corpus in the United States
District Court for the District of Kansas. The district court noted the following:
The petition reflects that petitioner was arrested in June 1998 by
Gary [Indiana] police. Neither the petition nor attachments suggest
any basis for the exercise of jurisdiction by this court, as it appears
that all relevant events occurred in the State of Indiana. Petitioner
must file any federal habeas corpus action relating to an Indiana
conviction in the federal courts for the District of Indiana.
(R., Doc. 2 at 1.) It then directed him to show cause why the petition should not
be dismissed for lack of jurisdiction. It also observed:
[P]etitioner is familiar with the federal courts in Indiana and that he
is subject to prior restrictions against filing civil actions. See
Montgomery v. Davis, 362 F.3d 956 (7th Cir. 2004) (upholding
sanctions against petitioner and another prisoner which include a
prohibition against filing a habeas corpus action unless it challenged
a state criminal judgment).
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(Id. at 1 n.1.)
The court later considered his response, stating:
The court also has reviewed petitioner’s response to the order to
show cause and concludes the petitioner has failed to identify any
legal grounds under which this court has jurisdiction to consider
petitioner’s challenge to an Indiana state conviction. As the court
explained in its earlier order, petitioner must pursue habeas corpus
relief related to that conviction in the federal courts for the District
of Indiana.
(R., Doc. 4 at 1.) It dismissed for lack of jurisdiction and denied COA. The
district court also denied ifp status, but did not make the required certification.
Mr. Sumbry has renewed his request for COA in this Court.
We GRANT Mr. Sumbry’s motion to proceed ifp but DENY a COA in 05-
3028 for substantially the same reasons stated by the United States District Court
for the District of Kansas. For substantially the same reasons stated by the United
States District Court for the District of New Mexico, we DENY COA in 05-2045.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
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