Allen v. People of the State of CO
697 F. App'x 604
10th Cir.2017Background
- Allen was convicted in Colorado state court in 1994 of third-degree sexual assault.
- He has repeatedly pursued federal collateral attacks and filed the § 2254 petition at issue here.
- The district court concluded Allen’s filing was an unauthorized second or successive § 2254 petition and dismissed for lack of jurisdiction because Allen had not obtained Tenth Circuit authorization.
- Allen sought a certificate of appealability (COA) to appeal the district court’s procedural dismissal and also sought leave to proceed in forma pauperis (IFP) on appeal.
- The district court denied a COA, certified the appeal was not taken in good faith, and denied IFP; Allen renewed those requests on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court had jurisdiction to consider Allen’s § 2254 petition | Allen implicitly contends the petition should proceed (seeks COA) | District court: petition is an unauthorized second/successive § 2254 without appellate authorization | Court held petition is an unauthorized second/successive petition; district court lacked jurisdiction |
| Whether Allen is entitled to a COA to appeal the procedural dismissal | Allen sought COA but did not identify procedural error or constitutional claim | Respondent argues dismissal was proper and not debatable | Court denied COA because Allen failed to show debatable procedural or constitutional issues |
| Whether Allen may proceed IFP on appeal after certification of not taken in good faith | Allen moved to proceed IFP and renewed after certification | Court required both inability to pay and nonfrivolous argument on law/facts | Court denied IFP because Allen failed to show a reasoned, nonfrivolous argument |
| Appointment of counsel on appeal | Allen moved for appointment of counsel | No basis shown for appointment given lack of debatable issues | Court denied second motion for appointment of counsel |
Key Cases Cited
- In re Cline, 531 F.3d 1249 (10th Cir.) (district court lacks jurisdiction over unauthorized second/successive § 2254 petitions)
- Slack v. McDaniel, 529 U.S. 473 (U.S.) (COA standards where dismissal is on procedural grounds)
- Rolland v. Primesource Staffing, L.L.C., 497 F.3d 1077 (10th Cir.) (procedures for seeking IFP after certification appeal not in good faith)
- DeBardeleben v. Quinlan, 937 F.2d 502 (10th Cir.) (IFP on appeal requires inability to pay and a nonfrivolous, reasoned argument)