Maurer v. Idaho Department of Correction ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 15, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
STEVEN BRENT MAURER,
Petitioner - Appellant,
v. No. 19-1419
(D.C. No. 1:19-CV-02191-LTB-GPG)
IDAHO DEPARTMENT OF (D. Colo.)
CORRECTIONS,
Respondent - Appellee.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY
_________________________________
Before BRISCOE, McHUGH, and MORITZ, Circuit Judges.
_________________________________
Petitioner and appellant, Steven Brent Maurer, a Colorado state prisoner
proceeding pro se, seeks a Certificate of Appealability (COA) in order to appeal the
district court’s denial of his petition under 28 U.S.C. § 2241. We deny his request for a
COA.
I
Mr. Maurer is a prisoner in the custody of the Colorado Department of
Corrections. His § 2241 petition asserts that he is being denied due process because he is
subject to an unlawful detainer issued by the Idaho Department of Corrections that “is
preventing the progression to a lower custody facility and elig[ibi]lity to go to a half-way
house.” ROA at 5. While Mr. Maurer’s petition does not provide specific information
regarding the detainer, he does allege that he has filed a “Motion to Enter Plea by
Mail/Disposition by Mail” in Idaho state court pertinent to the detainer, and Mr. Maurer
attached a copy of that motion to his petition. Id. at 9. In that motion, Mr. Maurer
indicates he is willing to plead guilty to an Idaho parole violation charge. Id. The relief
Mr. Maurer seeks in his petition is for the court “to vacate the detainer due to its burden
and prejudice in allowing progression while in custody in the Colorado Department of
Corrections.” Id. at 7.
The magistrate judge construed Mr. Maurer’s claim liberally as being asserted
pursuant to the Interstate Agreement on Detainers Act (IADA) and concluded the claim
lacked merit because the IADA does not apply to detainers based upon parole violations.
Id. at 14 (citing Carchman v. Nash, 473 U.S. 716, 727–28 (1985)). The magistrate judge
also noted that Mr. Maurer is not entitled to a parole revocation hearing until he is taken
into custody by the paroling authority and that the adverse consequences he faces as a
result of the Idaho detainer do not trigger any due process concerns. Id. (citing
McDonald v. New Mexico Parole Bd., 955 F.2d 631, 633–64 (10th Cir. 1991)).
Mr. Maurer objected to the magistrate judge’s recommendation, contending that
he is asserting a due process claim rather than a claim under the IADA and that
McDonald is distinguishable because he “is entitled to conditional liberty created by the
removal of the unlawful detainer.” Id. at 16–17. The district court overruled Mr.
Maurer’s objections, concluding that Mr. Maurer failed to demonstrate that McDonald is
distinguishable or that his due process claim has merit. Id. at 21. The district court
adopted the magistrate judge’s recommendation, denied Mr. Maurer’s § 2241 petition,
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and dismissed the action. Id. The district court also denied a COA and in forma pauperis
status on appeal, certifying that any appeal from the dismissal would not be taken in good
faith. Id. at 21–22. Mr. Maurer timely filed a notice of appeal.
II
To obtain appellate review of the district court’s dismissal of his petition, Mr.
Maurer must acquire a COA. Montez v. McKinna, 208 F.3d 862, 869 (10th Cir. 2000).
To acquire a COA, Mr. Maurer must make a “substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Specifically, he must demonstrate “that
reasonable jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Even construing Mr.
Maurer’s pro se request liberally, see Childs v. Miller, 713 F.3d 1262, 1264 (10th Cir.
2013), we conclude that he has failed to make this showing.
Mr. Maurer concedes on appeal that the IADA “does not provide relief” but
persists in his argument that “the detainer must be removed due to the due process being
violated.” Aplt. Br. at 3. Mr. Maurer claims that “[t]he detainer violated [his] right to
liberty and parole with fair notice of the detainer and a remedy to dispose of the detainer
being non-existent.”1 Id.
1
Mr. Maurer also makes a vague equal protection argument, which he raised for
the first time in his objections to the magistrate judge’s recommendation. See ROA at 18.
We decline to address this argument because “[i]ssues raised for the first time in
objections to the magistrate judge’s recommendation are deemed waived.” Marshall v.
Chater, 75 F.3d 1421, 1426 (10th Cir. 1996). Even if Mr. Maurer had properly raised
this argument, he does not cite a single case involving an equal protection claim, and he
has not alleged that he was “treated differently from others who were similarly situated.”
3
Rather than attempting to distinguish McDonald, Mr. Maurer now cites McDonald
to argue that his “liberty interest[s]” were violated. Id. But McDonald rejected the
precise argument Mr. Maurer makes here, holding that a petitioner’s right to a parole
revocation hearing and other “due process safeguards” do not attach until the petitioner’s
intervening sentence has been completed, and he has been taken into custody by the
paroling authority. 955 F.2d at 633–64. McDonald explained,
The hearing requirements and time limitations must be
adhered to only after the parolee is taken into a custody as a
parole violator. New Mexico[, the paroling authority,] did
not execute the warrant, and Petitioner[, a Texas state
prisoner,] was not taken into custody by the New Mexico
authorities. Until he is, he has not been deprived of a liberty
interest by New Mexico state action, and is not entitled to the
due process safeguards set forth in Morrissey [v. Brewer, 408
U.S. 471 (1972)].
Id. (emphasis added) (citation omitted). Mr. Maurer has not been taken into custody by
the Idaho authorities. Thus, he has not been deprived of a liberty interest by Idaho state
action and is not entitled to the due process safeguards he seeks.
Mr. Maurer also relies on Young v. Harper, 520 U.S. 143 (1997), to argue that his
due process rights have been violated. The petitioner in Young, however, was not serving
an intervening sentence and had been taken into custody by the paroling authority. Id. at
146. In addition, Mr. Maurer cites Trigg v. Moseley, 433 F.2d 364 (10th Cir. 1970),
and Campbell v. Commonwealth of Virginia, 453 F.2d 1230 (10th Cir. 1972), but
those cases involve detainers stemming from untried criminal charges, not parole
Barney v. Pulsipher, 143 F.3d 1299, 1312 (1998) (discussing elements of “a viable equal
protection claim”). As such, we decline to grant a COA on this basis.
4
violations. McDonald applies when, like here, a parole violation detainer is lodged
against a petitioner while he is serving an intervening sentence. Accordingly, we
conclude no reasonable jurist would find the district court’s assessment debatable or
wrong, and we deny Mr. Maurer’s request for a COA.
Mr. Maurer has also filed a motion to proceed in forma pauperis. Because Mr.
Maurer has not provided a “reasoned, nonfrivolous argument on the law and facts in
support of the issues raised on appeal,” his motion is denied. DeBardeleben v.
Quinlan, 937 F.2d 502, 505 (10th Cir. 1991).
III
We DENY Mr. Maurer’s request for a COA and DISMISS the matter. We also
DENY Mr. Maurer’s request to proceed in forma pauperis on appeal.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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