Loose v. Kogousek , 471 F. App'x 834 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
March 28, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
EARL JOSEPH LOOSE, a/k/a Earl
Joseph Crownhart,
No. 11-1482
Petitioner - Appellant,
v. (D. Colorado)
DANIEL C. KOGOUSEK; JOHN (D.C. No. 1:11-CV-01634-LTB)
SUTHERS, the Attorney General of
the State of Colorado,
Respondents - Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before MURPHY, EBEL, and HARTZ, Circuit Judges.
Applicant Earl Joseph Loose (a/k/a Earl Joseph Crownhart), who is
confined in a Colorado state mental institution, filed an application for relief
under 28 U.S.C. § 2254 in the United States District Court for the District of
Colorado. The district court denied the application. Applicant seeks a certificate
of appealability (COA) from this court to appeal the denial. See 28 U.S.C.
§ 2253(c)(1)(A) (requiring a COA to appeal the denial of a § 2254 application).
We deny his application for a COA and dismiss the appeal.
I. BACKGROUND
Applicant was charged with menacing and criminal mischief, but a state
court found him to be incompetent to proceed in the criminal case and committed
him to the Colorado Mental Health Institute in Pueblo, Colorado. Between June
22 and July 14, 2011, he filed four different § 2254 applications in district court,
prompting the magistrate judge to direct him to file an amended application to
consolidate all his claims. Applicant apparently filed a consolidated pleading on
August 5. But on August 11 the magistrate judge entered an order finding the
August 5 pleading to be illegible and unintelligible and directing Applicant to file
within 30 days a second amended application that would satisfy the requirements
of Fed. R. Civ. P. 8(a) (which were summarized in the magistrate judge’s order)
and would set forth specific facts to support each claim, see Advisory Committee
Note, Rule 4 of the Rules Governing Section 2254 Cases in the United States
District Courts (“[N]otice pleading is not sufficient, for the petition is expected to
state facts that point to a real possibility of constitutional error.” (internal
quotation marks omitted)). The order stated that if Applicant did not file a second
amended application as directed, the action would be dismissed without further
notice. Having received no further pleading or communication from Applicant,
the district court on September 19 dismissed the application without prejudice.
The court did not issue a COA.
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Applicant’s COA application in this court does not address the propriety of
the district court’s dismissal. Perhaps it suggests a claim of improper forcible
medication, but that claim cannot be divined in his district-court pleadings.
II. DISCUSSION
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 [application] 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, the applicant must
show that the district court’s resolution of the constitutional claim was either
“debatable or wrong.” Id.Because Applicant does not present any argument to challenge the district
court’s ruling, we have no ground to grant a COA. In any event, no reasonable
jurist could disagree with the district court’s order to amend an unintelligible
application or its order dismissing the application when Applicant failed to
comply with the prior order. See Jackson v. Albany Appeal Bureau Unit, 442
F.3d 51, 54 (2d Cir. 2006) (dismissal of a § 2254 application is proper if it is
unintelligible).
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III. CONCLUSION
We DENY Applicant’s motion to proceed in forma pauperis and his
application for a COA and DISMISS the appeal.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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