Hunter v. Moorhead

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 15, 2018
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Elisabeth A. Shumaker
Clerk of Court
STEVEN M. HUNTER,
Petitioner - Appellant,
v. No. 18-1077
(D.C. No. 1:16-CV-02680-MJW)
MOORHEAD, Warden, (D. Colo.)
Respondent - Appellee.
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ORDER DENYING CERTIFICATE OF APPEALABILITY
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Before HOLMES, O’BRIEN, and CARSON, Circuit Judges.
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Pro se petitioner Steven Hunter, a prisoner in the custody of the Federal Bureau of
Prisons, seeks a certificate of appealability (COA) to appeal the dismissal of his
28 U.S.C. § 2241 habeas petition. Hunter’s confinement arises from a conviction entered
by the District of Columbia Superior Court; therefore, he is considered a state prisoner
and must be granted a COA before he can appeal the denial of his § 2241 petition. See
Eldridge v. Berkebile, 791 F.3d 1239, 1243 (10th Cir. 2015) (stating a state prisoner must
obtain a COA to appeal the denial of a § 2241 petition, while a federal prisoner does

This order is not binding precedent except under the doctrines of law of the case,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.
not).1 We deny Hunter’s request for a COA, deny his request to proceed in forma
pauperis (IFP) on appeal, and dismiss this matter.
I. BACKGROUND
In 1996 the District of Columbia Superior Court convicted Hunter of assault, first
degree burglary, assault with a dangerous weapon, aggravated assault while armed, and
possession of a firearm during a crime of violence, and sentenced him to 31 years in
prison. On February 3, 2014, the United States Parole Commission (Commission)
released Hunter on parole. Seven months later, he was charged with stalking, cyber
stalking, and making a harassing phone call while he was on parole. At his parole
revocation hearing, Hunter, represented by counsel, admitted to violating the conditions
of his parole. The Commission initially determined the offense category to be four, with
an incarceration guideline range of 20 to 26 months, but on remand from the National
Appeals Board, the Commission lowered the offense category to one, with an
incarceration guideline range of 0 to 8 months. Nevertheless, on remand the Commission
again imposed a sentence of 60 months because Hunter presented a more serious risk
than indicated by the guidelines, there was a reasonable likelihood he would violate the
law if released, and his incarceration was necessary to protect the public.
1
At the time he filed his § 2241 petition, Hunter was housed at the United States
Penitentiary in Florence, Colorado. He was subsequently transferred to the Federal
Correctional Institution in Memphis, Tennessee. This circuit has jurisdiction based on his
placement at the time he filed is petition. Santillanes v. U.S. Parole Comm’n, 754 F.2d
887, 888 (10th Cir. 1985).
2
In his habeas petition, Hunter asserted twelve claims for relief. The parties
consented to proceed before a magistrate judge. See 28 U.S.C. § 636(c). The magistrate
judge denied habeas relief, denied a COA, denied leave to proceed IFP on appeal, and
dismissed the case. Hunter now seeks a COA on two claims: (1) the Commission
erroneously applied the 2000 version of the re-parole guidelines instead of the 1987
version, which resulted in a longer re-parole sentence in violation of the Ex Post Facto
Clause; and (2) the Commission’s imposition of the same sentence after remand
demonstrated vindictiveness in violation of his due process rights. He further asserts the
magistrate judge was biased against him. He has abandoned all other claims.
II. DISCUSSION
A COA is a jurisdictional prerequisite to our review of a petition for a writ of
habeas corpus. Miller–El v. Cockrell, 537 U.S. 322, 336 (2003). We will issue a COA
“only if the applicant has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). Where, as here, “a district court has rejected the
constitutional claims on the merits, the showing required to satisfy § 2253(c) is
straightforward: The petitioner must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
We have thoroughly reviewed the record, Hunter’s pro se appellate briefs, and the
magistrate judge’s thorough and cogent order; he has failed to make the applicable
showing. In particular, he has not demonstrated how or why the magistrate judge erred;
he merely speculates, saying if the Commission had applied the 1987 version of the
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re-parole guidelines, the result of his re-parole proceedings would have been more
favorable. Making a case for a COA is difficult. It requires specific reasons, supported
by specific authority, detailing how the judge erred. Simply restating the arguments
raised in the district court and spouting platitudes and generalities falls far short. Because
no jurist of reason could reasonably debate the correctness of the result reached by the
magistrate judge, we deny a COA and dismiss this matter.
Hunter asserts the magistrate judge was prejudiced against him because he issued
rulings adverse to him. “Adverse rulings alone do not demonstrate judicial bias.” Bixler
v. Foster, 596 F.3d 751, 762 (10th Cir. 2010). His argument is not even debatably
correct.
III. CONCLUSION
We DENY the request for a COA and DISMISS this matter.
The magistrate judge denied Hunter’s request to proceed on appeal without
prepayment of fees, a privilege extended only to those who qualify for in forma pauperis
(IFP) status, to wit, impecunious circumstances and the presentation of non-frivolous
issues. Hunter has here renewed his desire to proceed without prepayment of fees, again
claiming IFP status, but he fails to qualify. We deny his IFP request. The case is closed
and the relevant statute, 28 U.S.C. § 1915(a), does not waive payment of fees, only
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prepayment of fees. All filing and docketing fees ($505.00) are due and payable to the
Clerk of the District Court.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
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