Montero v. Bush

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 11 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
MANUEL RAUL REYO PENA
GARCIA MONTERO,
Petitioner - Appellant, No. 04-5022
(D.C. No. 04-CV-49-EA)
v. (N.D. Okla.)
GEORGE BUSH,
Respondent - Appellee.
MANUEL RAUL REYO PENA
GARCIA MONTERO,
Petitioner - Appellant, No. 04-8032
(D.C. No. 04-CV-45-CAB)
v. (D. Wyo.)
GEORGE BUSH,
Respondent - Appellee.
ORDER AND JUDGMENT *
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before KELLY, HENRY, and TYMKOVICH, Circuit Judges. **
Petitioner-Appellant Manuel Raul Reyo Pena Garcia Montero, a federal
prisoner appearing pro se, seeks to appeal the denial of his two petitions for
habeas corpus, 28 U.S.C. § 2241. We have consolidated these two appeals on our
own motion. See Fed. R. App. P. 3(b)(2).
In No. 04-5022, Mr. Montero appeals from an order of the United States
District Court for the Northern District of Oklahoma, dismissing his § 2241
petition. In order to appeal the district court’s dismissal of his petition, Mr.
Montero requests that this court grant him leave to proceed in forma pauperis
(IFP). Mr. Montero is required to demonstrate not only a financial inability to
pay the required fees, but also “a reasoned, nonfrivolous argument on the law and
facts in support of the issues raised on appeal.” McIntosh v. United States Parole
Comm’n, 115 F.3d 809, 812 (10th Cir. 1997) (internal quotation marks omitted).
Although a § 2241 petition is not a “civil action” for purposes of § 1915(a)(2) and
(b), a petitioner still must comply with the good faith requirements of 28 U.S.C.
§ 1915(a)(3) and Fed. R. App. P. 24(a)(3)(A), and the appeal is subject to
dismissal if shown to be frivolous. 28 U.S.C. § 1915(e)(2)(B)(i); McIntosh, 115
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
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F.3d at 112.
Despite finding Mr. Montero’s claims “fantastic and delusional,” the
district court, in an abundance of caution, granted Mr. Montero IFP status and
then summarily dismissed his claims on the merits. R. (04-5022) Doc. 3 at 2.
The district court then certified that the appeal was not taken in good faith and
denied IFP on appeal.
We also deny IFP and dismiss the appeal because Mr. Montero has failed to
show the existence of a nonfrivolous argument on the law and facts in support of
the issues raised on appeal and the appeal is frivolous. The underlying claims are
clearly “fantastic and delusional” and factually frivolous. Denton v. Hernandez,
504 U.S. 25, 32 (1992).
In No. 04-8032, the United States District Court for the District of
Wyoming dismissed Mr. Montero’s § 2241 petition, finding that the court lacked
jurisdiction because Mr. Montero is neither incarcerated in Wyoming nor
incarcerated pursuant to an order of any court in the State of Wyoming. See R.
(No. 04-8032) Doc. 2 at 1-2; Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.
1996) (“A petition under 28 U.S.C. § 2241 attacks the execution of a sentence
rather than its validity and must be filed in the district where the prisoner is
confined.”). Because Mr. Montero has submitted the identical materials in
support of this appeal as he submitted in support of the appeal discussed above,
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we likewise deny IFP status and dismiss the appeal.
APPEALS DISMISSED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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