Pavlov v. Smelzer

FILED
United States Court of Appeals
Tenth Circuit
June 16, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
STANIMIR GEORGIEV PAVLOV,
a/k/a Atanas Velichkov Yordanvo,
Petitioner - Appellant,
v. No. 11-1211
(D. Colorado)
WARDEN SMELZER (sic), Crowley (D.C. No. 1:10-CV-01723-PAB)
County Correctional Facility;
JOHN W. SUTHERS, Attorney
General of the State of Colorado,
Respondents - Appellees.
ORDER DENYING
CERTIFICATE OF APPEALABILITY *
Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this matter. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order is not binding precedent except under the doctrines of law of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.
Petitioner and appellant Stanimir Georgiev Pavlov, proceeding pro se,
seeks a Certificate of Appealability (“COA”), to enable him to appeal the
dismissal of his 18 U.S.C. § 2254 petition. Concluding that he has not satisfied
the requirements for issuance of a COA, we deny his request for a COA and
dismiss this matter.
BACKGROUND
Mr. Pavlov was convicted by a jury in Mesa County, Colorado, on charges
of third-degree burglary and theft. In January 2007, he was sentenced to six years
of imprisonment for the burglary charge and six months for the theft charge, to be
served concurrently. On March 5, 2007, the Colorado Court of Appeals (“CCA”)
granted Mr. Pavlov an extension of time (until April 11, 2007) to file a notice of
appeal. It appears he never filed one. Accordingly, on May 10, 2007, the CCA
ordered the file to be closed. On April 23, 2007, Mr. Pavlov filed a motion for
reconsideration of sentence, which the court denied on May 2, 2007. Mr. Pavlov
did not appeal that denial.
On May 17, 2007, Mr. Pavlov filed a motion for postconviction relief under
Colo. R. Crim. P. 35(c). He subsequently filed an addendum to the motion and a
request for counsel. On August 14, 2007, the trial court ordered Mr. Pavlov to
file his motion on the proper form, and denied his request for counsel “at this
time.” On September 26, 2007, Mr. Pavlov filed an order requesting more time.
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On November 13, 2007, he filed a petition for postconviction relief. On
January 3, 2008, the court denied Mr. Pavlov’s motion for counsel and on
January 7, 2008, the court denied his motion for postconviction relief. He did not
appeal from that denial. Rather, on February 22, 2008, he filed a motion to obtain
the original trial court record or a copy of the record, at the state’s expense. The
court denied his motion.
On March 10, 2008, Mr. Pavlov filed a motion for a new trial “pursuant to
ineffective assistance of counsel.” On April 7, 2008, he filed another motion for
a new trial. A few days later, the motion for a new trial was denied, without any
indication whether it was denying both motions, including the one for new
counsel.
On April 21, 2008, Mr. Pavlov filed an amended motion for a new trial,
which the court denied on April 22. It appears that Mr. Pavlov filed a notice of
appeal on July 7, 2008. The CCA ordered him to show cause why the appeal
should not be dismissed as untimely. The CCA affirmed. On June 21, 2010, the
Colorado Supreme Court denied certiorari review.
Meanwhile, on June 6, 2008, Mr. Pavlov had filed an original proceeding in
the Colorado Supreme Court, which that court denied on June 13.
On August 4, 2009, while his state postconviction appeal was pending,
Mr. Pavlov filed a 28 U.S.C. § 2254 petition. This petition was dismissed for
failure to exhaust state remedies. Mr. Pavlov did not appeal that dismissal.
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On July 21, 2010, Mr. Pavlov timely submitted the instant § 2254 petition.
On August 25, he cured a deficiency by filing an amended application that named
the proper respondents. His petition alleged that (1) the State of Colorado lacked
personal jurisdiction over him; (2) the State of Colorado lacked subject matter
jurisdiction over his case; and (3) government officials and corrections officers
involved in his case failed to present certain documents, including oaths of office,
affidavits, and a surety and/or fidelity bond(s). On February 9, 2011, the district
court issued an order dismissing the third claim as procedurally barred and
directing the respondents to file an answer to the remaining claims.
On April 20, 2011, after consideration of the respondents’ answers and
Mr. Pavlov’s replies, the district court issued an order dismissing the remaining
claims, denying Mr. Pavlov’s habeas petition, and dismissing the action with
prejudice. Mr. Pavlov seeks a COA to enable him to appeal that dismissal.
DISCUSSION
Pursuant to 28 U.S.C. § 2253(c)(2), a prisoner seeking a COA must make
“a substantial showing of the denial of a constitutional right.” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003). He may do so by “showing that reasonable
jurists could debate whether . . . the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
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(internal quotation marks omitted). Thus, when the district court has ruled on the
merits of the prisoner’s claims, he must show that “reasonable jurists could find
the district court’s assessment of the constitutional claims debatable or wrong.”
Id. Where the district court ruled on procedural grounds, a COA may be granted
when the petitioner shows “that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional right and . . .
whether the district court was correct in its procedural ruling.” Id.The district court began by carefully stating the standards applicable to a
federal district court under the Antiterrorism and Effective Death Penalty Act
(“AEDPA”) when it reviews a state court decision. Thus, under AEDPA, when a
petitioner has had a claim adjudicated, he may obtain federal review of the claim
only if he can show the state decision was “contrary to, or involved an
unreasonable application of clearly established Federal law, as determined by the
Supreme Court” or was “based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” See 28 U.S.C.
§ 2254(d); Williams v. Taylor, 529 U.S. 362, 402 (2000); Bunton v. Atherton, 613
F.3d 973, 977-78 (10th Cir. 2010). When the state court applies the correct law
to deny relief, a federal habeas court may only consider whether the state court
applied the federal law in an objectively reasonable manner. Bunton, 613 F.3d at
978-79. Finally, a “determination of a factual issue made by a State court shall be
presumed to be correct. The applicant shall have the burden of rebutting the
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presumption of correctness by clear and convincing evidence.” 28 U.S.C.
§ 2254(e)(1).
The district court thereafter examined each of Mr. Pavlov’s issues and
carefully addressed them in light of the AEDPA standards. With respect to
Mr. Pavlov’s jurisdictional claims, the district court observed that the CCA
“applied black-letter state law in analyzing Mr. Pavlov’s jurisdictional claims.”
Order of Dismissal at 10, R. Vol. 1 at 288. We find nothing debatable or
questionable in the district court’s careful and thoughtful determinations. No
jurist of reason would question the correctness of the district court’s decision.
Accordingly, we deny a COA and dismiss this matter.
CONCLUSION
For the foregoing reasons, we DENY a COA, deny his motion to proceed in
forma pauperis, and DISMISS this matter.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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