Thorpe v. Raemisch

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 22, 2017
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Elisabeth A. Shumaker
Clerk of Court
KARL RICHARD THORPE,
Petitioner - Appellant,
v. No. 17-1290
(D.C. No. 1:17-CV-01670-LTB)
RICK RAEMISCH, Director; MATTHEW (D. Colo.)
HENSEN; CYNTHIA COFFMAN, The
Attorney General of the State of Colorado,
Respondents - Appellees.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before KELLY, HARTZ, and BACHARACH, Circuit Judges.
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Karl Richard Thorpe, a Colorado prisoner appearing pro se, seeks a certificate of
appealability (COA) to challenge the district court’s denial of his application for a writ of
habeas corpus under 28 U.S.C. § 2254. We deny a COA and dismiss this matter.
After his convictions in state court for burglary, sexual assault, theft, and
menacing, and his adjudication as a habitual criminal, Thorpe was sentenced to two
consecutive fifty-year terms of imprisonment. The district court dismissed his previous
§ 2254 application as time-barred and procedurally barred, and we denied a COA. See
Thorpe v. Soares, 182 F.3d 933, 1999 WL 314636 (10th Cir. May 19, 1999) (unpublished
*
This order is not binding precedent except under the doctrines of law of the case,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.
table decision). The district court dismissed his most recent § 2254 application for lack
of jurisdiction because he did not obtain authorization from this court to file a second or
successive application. Thorpe now seeks a COA to appeal that ruling.
To establish his entitlement to a COA, Thorpe must make “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, a district
court denies a § 2254 application on procedural grounds, a COA may issue only if “the
prisoner shows, at least, 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Based on our review of Thorpe’s application for a COA and the record on appeal,
we conclude he has failed to establish his entitlement to a COA. Thorpe does not address
the district court’s determination that his application was second or successive, let alone
persuade us that jurists of reason would find that determination debatable.
Accordingly, we deny a COA. We also deny Thorpe’s motion to proceed in forma
pauperis because he has not shown “the existence of a reasoned, nonfrivolous argument
on the law and facts in support of the issues raised” in his application. Buchheit v. Green,
705 F.3d 1157, 1161 (10th Cir. 2012) (internal quotation marks omitted).
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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