McMullin v. Bravo

FILED
United States Court of Appeals
Tenth Circuit
July 24, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
BOBBIE MCMULLIN,
Petitioner - Appellant,
v.
No. 12-2144
(D.C. No. 1:11-CV-01112-JCH-WDS)
E. BRAVO, Warden, Guadalupe
(D.N.M.)
County Correctional Facility;
ATTORNEY GENERAL FOR THE
STATE OF NEW MEXICO,
Respondents - Appellees.
ORDER DENYING CERTIFICATE
OF APPEALABILITY *
Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.
Bobbie McMullin was convicted in two separate but related cases in New
Mexico state court in 2009 and 2010 of numerous offenses of promoting
prostitution. After unsuccessfully seeking relief in the state system, Mr.
McMullin initiated this action by filing a pro se 1 habeas petition under 28 U.S.C.
*
This order is not binding precedent except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
1
Because Mr. McMullin is proceeding pro se, we construe his filings
(continued...)
§ 2254. The district court dismissed the petition with prejudice and denied Mr.
McMullin a certificate of appealability (“COA”). He now seeks a COA from our
court to appeal from this dismissal. Additionally, Mr. McMullin has filed a
“Motion for Court Investigation of GCCF 2 Prison Mail Facility” (“Motion for
Investigation”). See Mot. for Investigation, filed Dec. 21, 2012. Although this
motion is far from pellucid, insofar as we are able to discern its substance, we
conclude that the factual foundation for any relief is wanting and deny the
motion. Further, we deny Mr. McMullin’s request for a COA and dismiss this
matter.
I
In 2009, Mr. McMullin was convicted, following a jury trial, of numerous
counts of promoting prostitution and was sentenced to thirteen and one-half years’
incarceration. In 2010, he pleaded no contest to additional charges of promoting
prostitution, racketeering, money laundering, extortion, and false imprisonment.
For these offenses, he received a thirty-year partially suspended sentence that was
to run concurrently with the sentence imposed from his 2009 conviction.
Represented by counsel, Mr. McMullin unsuccessfully appealed his 2009
1
(...continued)
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v.
Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).
2
Mr. McMullin is currently incarcerated in the Guadalupe County
Correctional Facility (“GCCF”) in Santa Rosa, New Mexico.
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conviction. Additionally, proceeding pro se, he requested that the state courts
provide him with a copy, free of charge, of the majority of (if not the entirety of)
the record in both his 2009 and 2010 convictions. The state courts denied these
requests. Mr. McMullin then turned to the federal district court for relief.
In his § 2254 petition before the district court, Mr. McMullin sought three
forms of relief: “(1) to compel the state to provide him with ‘all requested
records, files and transcripts at no cost to the Petitioner’; (2) ‘restitution’; and
(3) to vacate both convictions and bar the state ‘from any additional attempts to
prosecute Petitioner with materials contained in the requested files, records and
transcripts.’” R. at 249 (Magistrate Judge’s Proposed Findings & Recommended
Disposition, filed Apr. 25, 2012) [hereinafter Recommendation] (quoting id. at 11
(Pet. Under 28 U.S.C. [§] 2254, filed Dec. 19, 2011)). The district court referred
Mr. McMullin’s habeas petition to a magistrate judge who recommended that it be
denied and that the case be dismissed with prejudice. Mr. McMullin filed
objections; the district court overruled them. The district court adopted the
recommendation, dismissed Mr. McMullin’s claims with prejudice, and denied
Mr. McMullin a COA.
II
Mr. McMullin now seeks a COA from our court so that he may appeal the
district court’s dismissal of his petition. A state prisoner seeking “to appeal the
denial of a habeas petition . . . [that] was filed pursuant to § 2254” must first
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obtain a COA “whenever the detention complained of . . . arises out of process
issued by a State court.” Davis v. Roberts, 425 F.3d 830, 833 (10th Cir. 2005)
(quoting Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000)) (internal
quotation marks omitted); see 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell,
537 U.S. 322, 335–36 (2003). We will not issue a COA unless “the applicant has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2); accord Harris v. Dinwiddie, 642 F.3d 902, 906 (10th Cir. 2011).
“To make such a showing, an applicant must demonstrate ‘that 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.’” Harris, 642 F.3d at 906 (quoting
Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
III
Construing Mr. McMullin’s briefing liberally, there are three issues before
us: first, whether he is entitled to a COA regarding the denial of his claims in his
original habeas petition; second, whether he is entitled to a COA regarding the
wide range of alleged trial and appellate errors raised in his objections and in his
opening brief before us; and third, whether he has presented a cognizable claim
for relief in his Motion for Investigation. We briefly address each of these issues
in turn.
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A
As we noted above, Mr. McMullin sought three forms of relief in his
habeas petition and the magistrate judge recommended denying relief as to all
three forms. Although Mr. McMullin filed objections to the magistrate judge’s
Recommendation, he did not make specific objections. 3 Thus, the district court
deemed him to have waived de novo review. Mr. McMullin does not challenge
this conclusion in his application for a COA.
Under the firm waiver rule, the failure to file timely and specific objections
“to a magistrate’s recommendations ‘waives appellate review of both factual and
legal questions.’” Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008)
(quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)); see United
States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996) (“[A] party’s
objections to the magistrate judge’s report and recommendation must be both
timely and specific to preserve an issue for de novo review by the district court or
for appellate review.”); see also Wing v. Janecka, --- F. App’x ----, 2013 WL
2933852, at *2 (10th Cir. 2013); United States v. Green, 444 F. App’x 246, 248
(10th Cir. 2011); Gallegos v. Bravo, 437 F. App’x 624, 625–26 (10th Cir. 2011).
Mr. McMullin has thus waived appellate review of the challenges asserted in his
3
Mr. McMullin’s “objections” to the Recommendation consisted of
several alleged trial and appellate errors. We address these, and the similar
assertions in his briefing before us, infra in Part III.B.
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habeas petition. See, e.g., Duffield, 545 F.3d at 1237. More to the point, in the
COA context, he is not entitled to a COA on any of these challenges. Cf., e.g.,
Wing, 2013 WL 2933852, at *2. Given his waiver, and his complete failure to
challenge such waiver, he has not come close to showing that “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.” Harris, 642 F.3d at 906 (quoting
Slack, 529 U.S. at 484) (internal quotation marks omitted).
B
In his objections and in his brief before us, Mr. McMullin asserts various
alleged trial and appellate errors. Some of these alleged errors overlap, and some
do not. Procedurally, these errors can be broken down into three categories:
(1) those raised only before the district court in Mr. McMullin’s objections to the
Recommendation, (2) those raised for the first time before us, and (3) those raised
in the objections and in Mr. McMullin’s opening brief before us. However, none
of these errors were raised in his original habeas petition. All of these claims are
therefore waived. See Parker v. Scott, 394 F.3d 1302, 1327 (10th Cir. 2005)
(“[The petitioner] raises several [assertions of error], all of which he has waived
by failing to assert them in his district court habeas petition.”); see also Mays v.
Dinwiddie, 441 F. App’x 575, 578 (10th Cir. 2011) (“As a general rule, we will
not consider issues on appeal that were not raised before the district court as part
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of the habeas petition.” (emphasis added)); Thompkins v. McKune, 433 F. App’x
652, 658–59 (10th Cir. 2011) (holding that the petitioner had “waived this
argument by failing to assert it in his federal habeas petition” and collecting
cases); cf. Rule 2(c) of the Rules Governing Section 2254 Cases in U.S. Dist. Cts.
(“The petition must . . . specify all the grounds for relief available to the
petitioner . . . .”). To the extent that Mr. McMullin is requesting a COA so that
we may review these alleged errors on appeal, we deny his request.
C
Finally, in his Motion to Investigate, Mr. McMullin asserts that he “has
experienced many improper issues involving his US Postal communications with
this court and previous courts.” Mot. to Investigate, at 1. He also claims that,
because the Tenth Circuit does not waive copying fees for indigents, he is “forced
to proceed with out [sic] the necessary notifications and documents due to his
extended impoverishment,” which “is a clear violation of his rights to due process
and fair and equal treatment under the law, United States Constitution.” Id. at 5.
However, he fails to allege any facts sufficient to support either of these claims
and thus is not entitled to relief. We deny the Motion to Investigate.
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IV
Accordingly, we deny Mr. McMullin’s request for a COA, deny his Motion
to Investigate, and dismiss this matter.
Entered for the Court
JEROME A. HOLMES
Circuit Judge
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