510 F. App'x 761
10th Cir.2013Background
- Roque Aranda Tercero, a Mexican national, is subject to a final deportation order and is detained in Chaparral, NM.
- Tercero challenged a Texas criminal conviction used to remove him, filing petitions under 28 U.S.C. §2254 and §2241 in the district court.
- The district court applied Trujillo factors to decide whether to transfer the case to Texas or dismiss; it dismissed the §2254 claims without prejudice.
- The district court also held the §2241 claims barred as abuse of the writ, noting prior petitions and numerous filings.
- On appeal, Tercero challenges the district court’s rulings on COA, §2254, and §2241, and seeks relief including remand and relief from El Paso detention; the court denies COA, affirms dismissal, and dismisses the §2241 issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| COA on §2254 claims | Tercero argues COA should issue to appeal district court rulings | Court should deny COA given lack of substantial showing | COA denied; §2254 claims dismissed |
| Transfer vs dismissal under Trujillo | District court should have transferred for convenient Texas forum | Factors weigh in favor of dismissal without prejudice | District court properly dismissed (Trujillo factors). |
| Abuse of the writ for §2241 claims | Not abuses; claims timely and properly raised | Second/successive petition raising new claims is abusive | Claims dismissed as abuse of the writ |
| Jurisdiction over habeas petition challenging detention location | Detention location and forum raise due process concerns | Detention location decisions are discretionary and not reviewable in habeas | Petition dismissed for lack of jurisdiction |
| IFP on Appeal (Appeal No. 12-2175) | Should be allowed to proceed in forma pauperis | Appeal feasible only if proper jurisdiction exists | IFP denial affirmed; appeal dismissed |
Key Cases Cited
- Lambros v. Booker, 216 F.3d 1087 (10th Cir. 2000) (second or subsequent §2244 petition requires cause and prejudice or fundamental miscarriage of justice)
- Trujillo v. Williams, 465 F.3d 1223 (10th Cir. 2006) (factors for transfer vs dismissal in interstate habeas petitions)
- Miller-El v. Cockrell, 537 U.S. 322 (2003) (COA showing standard for §2253(c))
- Slack v. McDaniel, 529 U.S. 473 (2000) (standard for granting COA on procedural/constitutional issues)
- Toevs v. Reid, 685 F.3d 903 (10th Cir. 2012) (liberal pleading standards followings in Haines; pro se pleadings)
- Watkins v. Leyba, 543 F.3d 624 (10th Cir. 2008) (application of liberal construction to petitions)