Coulthrust v. Wells

F I L E D
United States Court of Appeals
Tenth Circuit
June 5, 2007
UNITED STATES CO URT O F APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
DO RRELL R. CO ULTH RU ST,
Petitioner-A ppellant, No. 07-2038
v. (D.C. No. CIV-06-984-M CA /AC T)
(D. New M exico)
W ALT W ELLS,
Respondents-Appellees.
OR DER AND JUDGM ENT *
Before LUC ER O, HA RTZ, and GORSUCH, Circuit Judges.
Although it is difficult to discern from the scant materials he has provided,
construing those materials as liberally as possible, see Andrews v. Heaton, 483
F.3d 1070, 1076 (10th Cir. 2007), Dorrell Coulthrust indicates that he was twice
convicted of possession with intent to distribute cocaine, first in 1990 and then
again in 1991; after his second conviction, apparently in federal court,
M r. Coulthrust received a sentence of 240 months’ imprisonment which he is
currently serving in a New M exico facility. In separate proceedings, an
*
This order is not binding precedent except under the doctrines of law of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.
immigration judge in April 2003 ordered M r. Coulthrust deported to Barbados at
the conclusion of his prison term. M r. Coulthrust sought to overturn the
immigration judge’s order but his efforts to date seem to have proven
unsuccessful. See Coulthrust v. Attorney General, 177 Fed. Appx. 234 (3d Cir.)
(unpub.), cert. denied, 127 S.Ct. 293 (2006).
Having failed to defeat the immigration judge’s deportation order through
conventional channels, and shortly after receiving the Third Circuit’s decision on
his immigration appeal, M r. Coulthrust filed this pro se habeas petition in federal
court in New M exico pursuant to 28 U.S.C. § 2241. As best w e can tell, this
petition also purports to challenge the right asserted by the Department of
Homeland Security (“DHS”) to remove him after he finishes his prison term. The
magistrate judge hearing the petition recommended dismissing it for lack of
jurisdiction. The magistrate judge did so on the basis of M r. Coulthrust’s twin
admissions in his trial court pleadings – namely, that he has been convicted of an
aggravated felony and is not a citizen or national of the United States – as well as
the Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, 310, which provides
in pertinent part that
[n]otwithstanding any other provision of law (statutory or
nonstatutory), including section 2241 of Title 28, or any other habeas
corpus provision, and sections 1361 and 1651 of such title, and except
as provided in subparagraph (D ), no court shall have jurisdiction to
review any final order of removal against an alien who is removable
by reason of having committed a criminal offense covered in section
1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of this title, or any
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offense covered by section 1227(a)(2)(A)(ii) of this title for which
both predicate offenses are, without regard to their date of
commission, otherwise covered by section 1227(a)(2)(A )(i) of this
title.
8 U.S.C. § 1252(a)(2)(C) (emphases added); see M ag. J. Proposed Findings and
Recommend Disposition of Dec. 6, 2006, at 2-3. The Real ID Act made petitions
for review of decisions of the Board of Immigration Appeals the “sole and
exclusive means” for contesting most removal orders in federal court. 8 U.S.C.
§ 1252(a)(5).
The district court rejected M r. Coulthrust’s objections to the magistrate
judge’s recommendation and dismissed M r. Coulthrust’s habeas petition for lack
of jurisdiction on December 28, 2006. M r. Coulthrust thereafter requested
permission to proceed on appeal in form a pauperis, which the district court denied
on M arch 2, 2007, on the ground that M r. Coulthrust’s proposed appeal presented
no reasoned argument in law or fact.
In his papers before us, M r. Coulthrust appears to argue that removal would
be inappropriate because he “ow[e]s permanent allegiance to N ew York state[,] a
Republic.” Pet’r’s Resp. to M ag. J. Findings and Recommendations at 3. On this
basis, M r. Coulthrust also appears to assert he is not an alien, as that term is
defined in 8 U.S.C. § 1101(a)(3), and therefore his habeas petition is not subject to
the Real ID Act’s jurisdictional restrictions contained in 8 U.S.C. § 1252(a)(2)(C).
See Appellant’s Br. at 4.
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M r. Coulthrust’s arguments falter on many fronts. 1 By way of example, he
appears to believe that New York state can, and has, established separate
procedures for the naturalization of new citizens; however, the United States
Constitution grants this authority exclusively to the federal government. See U.S.
Const. Art. I § 8 (“Congress shall have Power . . . [t]o establish a uniform Rule of
Naturalization . . . .”). Further, as the magistrate judge observed, M r. Coulthrust
repeatedly concedes that he is “a citizen of a foreign state,” Pet’r’s Habeas
Petition at 1, a native of Barbados, id. at 21, and “NOT A FED ERAL U .S.
CITIZEN i.e. 14th Amendment Citizen,” Pet’r’s Resp. to M ag. J. Findings and
Recommendations at 4. Accordingly, he is, by his own admission, an “alien”
subject to the jurisdictional restrictions contained in Section 1252(a)(2)(C). See
8 U.S.C. § 1101(a)(3) (“The term ‘alien’ means any person not a citizen or
national of the United States.”). Even assuming M r. Coulthrust had presented a
colorable claim that he is a citizen or national of the United States, moreover, any
challenge to a removal order generally should be filed in connection with his
immigration proceedings, 8 U.S.C. § 1252(a)(5), and should be filed “with the
1
Because he claims to be a federal prisoner challenging a federal order
under Section 2241, M r. Coulthrust does not need to obtain a certificate of
appealability prior to obtaining an appellate disposition on the merits of his
petition. Aguilera v. Kirkpatrick, 241 F.3d 1286, 1292 (10th Cir. 2001) (when
petitioner seeks review of deportation order under Section 2241, a court “need not
. . . grant a certificate of appealability as is required in some habeas cases”).
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court of appeals for the judicial circuit in which the immigration judge completed
the proceedings,” 8 U.S.C. § 1252(b)(2). At least from the limited set of
materials provided by M r. Coulthrust, it appears the appropriate circuit to hear
such a challenge would be the Third Circuit, not our own.
Accordingly, we dismiss M r. Coulthrust’s petition for lack of jurisdiction
and, concurring with the district court’s assessment that he lacked a reasoned
argument to pursue on appeal and therefore that his appeal was not taken in good
faith, see 28 U.S.C. § 1915(a)(3), we deny his request for leave to proceed before
this court in form a pauperis.
ENTERED FOR THE COURT
Neil M . Gorsuch
Circuit Judge
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