Wright v. State of Colorado ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 25, 2017
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Elisabeth A. Shumaker
Clerk of Court
VICTORIA DAWN WRIGHT,
Petitioner - Appellant,
v. No. 17-1068
(D.C. No. 1:16-CV-02623-LTB)
STATE OF COLORADO; ARAPAHOE (D. Colo.)
COUNTY; CYNTHIA H. COFFMAN,
Attorney General of the State of Colorado,
Respondents - Appellees.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before LUCERO, O’BRIEN, and MORITZ, Circuit Judges.
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Victoria Wright filed a petition for a writ of habeas corpus under 28 U.S.C.
§ 2254, challenging (1) a state court conviction for obstructing a peace officer and
(2) a corresponding restitution order.
After Wright filed her petition, a magistrate judge ordered Wright to file an
amended petition or risk dismissal. According to the magistrate judge, Wright’s
petition was deficient, in part because she failed to allege facts demonstrating that
she was in custody with respect to the conviction she was challenging. See Anderson-
* This order isn’t binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. But it may be cited
for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
Bey v. Zavaras, 641 F.3d 445, 453 (10th Cir. 2011) (“To obtain relief under § 2254,
the applicant must be ‘in custody’ under the challenged judgment.”).
Although Wright filed a response to the magistrate judge’s order, she didn’t
file an amended petition by the court’s deadline. So the district court dismissed the
case without prejudice, citing Wright’s “fail[ure] to prosecute and file an amended
application as directed.” R. 72. In doing so, the district court also noted its agreement
with the magistrate judge’s finding that the petition didn’t include sufficient factual
allegations to demonstrate that Wright satisfied the in-custody requirement.
Proceeding pro se,1 Wright now seeks a COA to challenge the district court’s
dismissal. Because Wright fails to demonstrate “that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling,” we deny
Wright’s request for a COA and dismiss the appeal. Slack v. McDaniel, 529 U.S. 473,
484 (2000).
Federal courts have jurisdiction to entertain habeas claims only if the
petitioner is “‘in custody’ under the challenged judgment.” Anderson-Bey, 641 F.3d
at 453; see § 2254(a). And habeas petitioners must allege facts that show they meet
this in-custody requirement. See United States v. Bustillos, 31 F.3d 931, 933 (10th
Cir. 1994) (“The party seeking to invoke the jurisdiction of a federal court must
demonstrate that the case is within the court’s jurisdiction.”).
1
We liberally construe Wright’s pro se filings. But it is not our role to act as
her advocate. James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
2
It’s clear that Wright was incarcerated when she filed her habeas petition. But
the record shows that she was sentenced to time served for her obstruction
conviction. Accordingly, that sentence necessarily expired long before Wright filed
her petition. Therefore, as the magistrate judge pointed out, there’s no indication that
Wright’s current incarceration “is related to” the conviction she now seeks to
challenge. R. 45.
In fact, in her response to the magistrate judge’s order, Wright admitted that
she wasn’t currently incarcerated for the conviction she challenges in her petition.
Instead, she pointed out that petitioners may meet the in-custody requirement by
showing they’re subject to “restraints not shared by the public generally that
significantly confine and restrain freedom.” Id. at 54; see Mays v. Dinwiddie, 580
F.3d 1136, 1139 (10th Cir. 2009). But Wright failed to identify any specific
“restraints” that she might be subject to as a result of her challenged conviction. And
none are apparent from the record.
In short, we find nothing in Wright’s petition, the record, or Wright’s brief to
suggest that she was in custody for the obstruction conviction when she filed her
habeas petition. Therefore, we deny Wright’s application for a COA and dismiss this
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case. As a final matter, we grant Wright’s motion to proceed in forma pauperis.
Entered for the Court
Nancy L. Moritz
Circuit Judge
4