Hodson v. Colorado Mental Health Inst.

FILED
United States Court of Appeals
Tenth Circuit
October 9, 2015
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
TRAVIS HODSON,
Petitioner - Appellant,
v.
No. 15-1182
(D.C. No. 1:14-CV-02879-LTB)
COLORADO MENTAL HEALTH
(D. Colorado)
INSTITUTE AT PUEBLO; THE
ATTORNEY GENERAL OF THE
STATE OF COLORADO,
Respondents - Appellees.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before MATHESON, MURPHY, and PHILLIPS, Circuit Judges.
This matter is before the court on Travis Hodson’s pro se request for a
certificate of appealability (“COA”). This appeal had its genesis in a 28 U.S.C.
§ 2254 habeas petition Hodson filed in federal district court on October 22, 2014.
On February 6, 2015, the district court dismissed Hodson’s habeas petition for
lack of jurisdiction, concluding Hodson was not “in custody” on the conviction he
was attempting to challenge. See McCormick v. Kline, 572 F.3d 841, 847-48
(10th Cir. 2009) (“The first showing a § 2254 petitioner must make is that he is in
custody pursuant to the judgment of a State court. . . . Section 2254’s in-custody
requirement is jurisdictional.” (quotations and citations omitted)). This court
dismissed Hodson’s appeal from that ruling as untimely. Hodson v. Colo. Mental
Health Inst., No. 15-1101 (10th Cir. May 29, 2015). In the meantime, Hodson
filed in the district court a “Motion for Relief From Judgment” pursuant to Fed.
R. Civ. P. 60(b). The district court denied that motion, concluding Hodson had
failed to come forward with any reason to doubt the previous jurisdictional ruling.
Hodson seeks a COA so he can appeal the district court’s denial of his Rule 60(b)
motion. Spitznas v. Boone, 464 F.3d 1213, 1217-18 (10th Cir. 2006) (holding that
when a district court denies a “true” 60(b) motion, this court “will require the
movant to obtain a [COA] before proceeding with his . . . appeal”).
This court denies Hodson’s request for a COA because the district court’s
conclusion that Hodson was not in custody is not reasonably subject to debate. A
COA will issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When the decision
appealed from involves a procedural ruling, this court will not issue a COA unless
“the prisoner shows, at least, 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.” Spitznas, 464 F.3d at 1225 (quotation omitted).
Because Hodson has failed to cast any doubt whatsoever on the district court’s “in
custody” determination, he is not entitled to a COA.
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For those reasons set out above, this appeal is hereby dismissed.
Furthermore, because Hodson has not advanced a “reasoned, nonfrivolous
argument” on appeal, see Lister v. Dep’t of the Treasury, 408 F.3d 1309, 1312
(10th Cir. 2005), his request to proceed in forma pauperis is also denied.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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