Frazier v. People of the State of CO , 405 F. App'x 276 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 14, 2010
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
KEITH E. FRAZIER,
Petitioner - Appellant,
v.
No. 10-1389
(D.C. No. 1:08-CV-02427-CMA)
PEOPLE OF THE STATE OF
(D. Colorado)
COLORADO; THE ATTORNEY
GENERAL OF THE STATE OF
COLORADO,
Respondents - Appellees.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.
This matter is before the court on Keith Frazier’s pro se requests for a
certificate of appealability (“COA”) and to proceed on appeal in forma pauperis.
Frazier seeks a COA so he can appeal 1 the district court’s dismissal, on the basis
of lack of subject matter jurisdiction, 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
1
Upon review of the parties’ jurisdictional submissions, it is clear that
Frazier placed his notice of appeal in the prison mail system within thirty days of
the entry of the district court’s judgment. Accordingly, Frazier’s notice of appeal
is timely filed pursuant to the prison mailbox rule. Fed. R. App. P. 4(c)(1);
Prince v. Philpot, 420 F.3d 1158, 1163-64 (10th Cir. 2005).
in a habeas corpus 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. McKinna, 208 F.3d 862, 869 (10th Cir. 2000) (holding that § 2253(c)(1)(A)’s
requirements apply when a state habeas petitioner is proceeding under § 2241).
We grant Frazier’s motion to proceed on appeal in forma pauperis. Because,
however, Frazier has not “made a substantial showing of the denial of a
constitutional right,” id. § 2253(c)(2), this court denies his request for a COA and
dismisses this appeal.
In 1997 Frazier pleaded guilty, in Colorado state court, to two misdemeanor
counts of indecent exposure to a person under the age of fifteen, in violation of
Colo. Rev. Stat. § 18-7-203. By operation of Colorado law, Frazier’s convictions
for indecent exposure required that he register as a sex offender and comply with
the provisions of the Colorado Sex Offender Registration Act. Id. §§ 16-22-103, -
108. Frazier completed his sentence on the indecent exposure convictions and
was released from incarceration on July 3, 2001. Shortly thereafter, however, he
was convicted of additional crimes and is currently serving a term of
incarceration in the custody of the Colorado Department of Corrections.
On July 6, 2006, Frazier filed in county court for Weld County, pursuant to
Colo. Rev. Stat. § 16-22-113(1)(c), 2 a petition to discontinue sex offender
2
Section 16-22-113(1)(c) provides as follows:
(continued...)
-2-
registration. The county court denied Frazier’s petition. Frazier then appealed to
the Weld County District Court. The district court affirmed the denial of
Frazier’s petition, concluding it was based on a misreading of § 16-22-113(1)(c).
In particular, the district court interpreted § 16-22-113(c)(1) as requiring a
registrant to be out of prison and living as a member of the community for five
years as a prerequisite to petitioning the trial court to discontinue the registration
requirement. Thus, the district court concluded, in essence, that the five-year
period to discontinue registration set out in § 16-22-113(1)(c) was tolled during
the time of Frazier’s current incarceration and would not begin to run until
Frazier finished his current, unrelated period of incarceration.
Frazier then filed the instant § 2241 petition in Federal district court,
asserting the state court’s refusal to discontinue his registration requirement
2
(...continued)
(1) . . . [A]ny person required to register pursuant to section
16-22-103 . . . may file a petition with the court that issued the order
of judgment for the conviction that requires the person to register for
an order that discontinues the requirement for such registration . . .
as follows:
(c) . . . if the offense that required such person to
register constituted or would constitute a misdemeanor
other than the class 1 misdemeanor of unlawful sexual
contact, . . . after a period of five years from the date of
such person’s final release from the jurisdiction of the
court for such offense, if such person has not
subsequently been convicted of unlawful sexual
behavior or of any other offense, the underlying factual
basis of which involved unlawful sexual behavior.
-3-
violated his rights under the Eighth and Fourteenth Amendments. The district
court dismissed Frazier’s petition for lack of subject matter jurisdiction,
concluding that Frazier did not satisfy § 2241’s “in custody” requirement. See
28 U.S.C. § 2241(c)(3) (providing that the “writ of habeas corpus shall not
extend” unless the petitioner “is in custody in violation of the Constitution or
laws or treaties of the United States”). In so concluding, the district court noted
that courts had consistently held that being subject to a sex offender registration
scheme did not amount to custody.
The granting of a COA is a jurisdictional prerequisite to Frazier’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, Frazier 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 motion on procedural grounds, a movant 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). In
evaluating whether Frazier has satisfied his burden, this court undertakes “a
-4-
preliminary, though not definitive, consideration of the [legal] framework”
applicable to each of his claims. Miller-El, 537 U.S. at 338. Although Frazier
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.This court need not decide whether the district court’s jurisdictional ruling
is debatable because reasonable jurists would not find it debatable whether
Frazier’s § 2241 petition stated a valid constitutional claim. See Gibson v.
Klinger, 232 F.3d 799, 803 (10th Cir. 2000) (noting in similar procedural context
that this court “will only take a quick look at the federal habeas petition to
determine whether [the petitioner] has facially alleged the denial of a
constitutional right” (quotation and alteration omitted)). At their bases, all of
Frazier’s claims for relief rely on the following necessary assertion: the Colorado
state courts misinterpreted § 16-22-113(1)(c) in concluding the five-year period
therein does not run while a registrant is incarcerated. This pure matter of state
law is simply not cognizable in habeas. Johnson v. Mullin, 505 F.3d 1128, 1141
(10th Cir. 2007). Furthermore, because Frazier’s “constitutional” claims all
depend entirely on his assertion Colorado courts have misinterpreted Colorado
law, it is simply not debatable that those claims are facially invalid.
Because Frazier asks this court to examine a question of state law, he does
not make a “substantial showing of the denial of a constitutional right.” 28
-5-
U.S.C. § 2253(c)(2). Accordingly, this court DENIES Frazier’s request for a
COA and DISMISSES this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
-6-