Lee v. Cozza-Rhodes ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS December 10, 2013
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
BRANDON CHE LEE,
Petitioner - Appellant,
v. Nos. 13-1303, 13-1341
(D.C. Nos. 1:13-CV-01504-LTB and
COZZA-RHODES, 1:13-CV-01901-LTB)
(D. Colo.)
Respondent – Appellee.
__________________________
BRANDON CHE LEE,
Petitioner – Appellant,
v. No. 13-1329
(D.C. No. 1:13-CV-01640-LTB)
ERIC HOLDER, (D. Colo.)
Respondent – Appellee.
ORDER AND JUDGMENT*
*After examining the briefs and appellate record, this panel has determined
unanimously to grant the party’s request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G. The cases are therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App.
Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.
Brandon Che Lee, a federal inmate proceeding pro se, brings separate appeals
from district-court orders dismissing three applications for writs of habeas corpus
under 28 U.S.C. § 2241. The United States District Court for the District of Colorado
dismissed the first application (13-1303, Lee v. Cozza-Rhodes) without prejudice because
Mr. Lee failed to file the application on the proper court form; dismissed the second
application (13-1329, Lee v. Holder) without prejudice because he failed to use the
proper court form and because he failed to pay the filing fee or file a motion to proceed in
forma pauperis; and denied the third application (13-1341, Lee v. Cozza-Rhodes) with
prejudice, rejecting Mr. Lee’s arguments that he was not lawfully incarcerated because he
had not been provided certified copies of the judgment against him and his presentence
report (PSR). Exercising jurisdiction under 28 U.S.C. § 1291, we consolidate the appeals
and affirm all three dismissals.
We review de novo the district court’s dismissal of Mr. Lee’s § 2241 applications.
See Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). Because Mr. Lee is acting pro
se, we construe his pleadings liberally. See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir.
2007). For a writ to be granted, the applicant must show that “[h]e is in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
P. 32.1 and 10th Cir. R. 32.1.
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§ 2241(c)(3). “A habeas corpus proceeding attacks the fact or duration of a prisoner’s
confinement and seeks the remedy of immediate release or a shortened period of
confinement.” McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997)
(internal quotation marks omitted).
There is no merit to any of Mr. Lee’s claims. Thus we need not address his
allegation that he actually paid the filing fee in 13-1329 or address his challenges to the
dismissals of two of his claims because they were on a 2011 form from the
Administrative Office of the Courts rather than on the district court’s 2004 form. We can
consider together all of Mr. Lee’s remaining alleged grounds for relief raised in his three
briefs.
As we understand his briefs, those grounds are: (1) prison officials will not
provide administrative-remedy forms, (2) prison officials have threatened him, (3) prison
officials are detaining him without a certified copy of his judgment or PSR, (4) his
indictment and the grand jury transcript are not authenticated with the court’s filing
stamp, (5) his indictment was not signed by the grand jury, and (6) the Department of
Justice failed to send him copies of the indictment, judgment, and grand-jury transcript in
response to his request under the Freedom of Information Act.
None of Mr. Lee’s complaints would be ground for releasing him from custody
sooner than otherwise. His conviction has been affirmed by the Ninth Circuit, see United
States v. Brandon Che Lee, 465 F. App’x 627, 628 (9th Cir. 2012), and Mr. Lee has not
suggested that any of the challenged conduct has increased his imprisonment beyond the
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period in the original judgment of conviction. Any challenges to his indictment come too
late. See Fed. R. Crim. P. 12(b)(3)(B). And he cites no authority (nor do we think he
could find any) granting relief from incarceration on any other ground he raises. See
Munn v. Peterson, 156 F. App’x 85, 87 (10th Cir. 2005) (absence of a certified copy of
judgment did not undermine the legitimacy of confinement of § 2241 applicant).
We AFFIRM the district court’s dismissals, DENY Mr. Lee’s motions to proceed
in forma pauperis, and DENY Mr. Lee’s motions for release.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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