Trujillo v. Archuleta

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 3, 2015
Elisabeth A. Shumaker
Clerk of Court
JOHN TRUJILLO,
Petitioner - Appellant,
v. No. 15-1326
(D.C. No. 1:15-CV-01061-LTB)
LOU ARCHULETA; THE ATTORNEY (D. Colo.)
GENERAL OF THE STATE OF
COLORADO,
Respondents - Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before LUCERO, O’BRIEN, and GORSUCH, Circuit Judges.
John Trujillo, a state prisoner proceeding pro se, seeks a certificate of
appealability (COA) to appeal from the district court’s determination that his most
recent 28 U.S.C. § 2254 application is an unauthorized second or successive § 2254
application that it lacked jurisdiction to consider. See 28 U.S.C. § 2253(c)(1)(A).
We deny a COA and dismiss this matter.
Mr. Trujillo was convicted of first degree murder in 1995. He filed his first
§ 2254 habeas action in 2004, which was dismissed for lack of merit. Most recently,
*
This order is not binding precedent except under the doctrines of law of the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. P. 32.1 and 10th Cir. R. 32.1.
he filed another § 2254 action that was dismissed by the district court for lack of
jurisdiction. Trujillo v. Archuleta, No. 15-CV-1061-LTB, slip op. at 4 (D. Colo.
Aug. 14, 2015). The court recognized that Mr. Trujillo had not obtained
authorization from this court to file a second or successive application and his
application should either be dismissed for lack or jurisdiction or transferred to this
court. The court examined Mr. Trujillo’s claim that a secret plea agreement between
the prosecution and the key witnesses against him at trial allegedly tainted his
conviction and concluded the claim lacked merit. See § 2244(b)(2)(A),(B) (requiring
a second or successive applicant to demonstrate that his claim is based on either a
new rule of constitutional law or newly discovered evidence that establishes by clear
and convincing evidence that he is not guilty). It thus declined to transfer the
application to this court. See In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008)
(per curiam) (one factor to consider in deciding whether to transfer an action is
whether the claim is likely to have merit).
To obtain a COA, Mr. Trujillo must show “that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Reasonable jurists could not debate the district court’s decision to dismiss.
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We deny a COA and dismiss this matter. We grant Mr. Trujillo’s motion to
proceed in forma pauperis without prepayment of costs or fees and remind him that
he is obligated to make monthly payments until the filing and docket fees are paid in
full.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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