616 F. App'x 391
10th Cir.
2015

Vivian L. RADER, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.; Steven R. RADER, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.

Nos. 15-9000, 15-9001

United States Court of Appeals, Tenth Circuit

Oct. 14, 2015

625 F. Appx 391

Before KELLY, BALDOCK, and GORSUCH, Circuit Judges.

beas relief under 28 U.S.C. § 2241 because he was wrongfully denied parole. He also brought a variety of claims challenging the conditions of his confinement. Pursuant to 28 U.S.C. § 636(b)(1), the petition was referred to a magistrate judge for initial processing. As to Mr. Parrish-Parrado‘s habeas claims, the magistrate judge determined that the petition failed to demonstrate Mr. Parrish-Parrado had exhausted his state court remedies. See Wilson v. Jones, 430 F.3d 1113, 1118 (10th Cir.2005) (holding that a state prisoner “seeking relief under 28 U.S.C. § 2241 is generally required to exhaust state remedies” or demonstrate that exhaustion would be futile). The magistrate judge directed Mr. Parrish-Parrado to file a supplemental petition addressing the exhaustion issue.

Regarding the challenges to the conditions of confinement, the magistrate judge determined that the claims were not properly brought pursuant to a habeas petition. See Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir.2012) (“In this circuit, a prisoner who challenges the fact or duration of his confinement and seeks immediate release or a shortened period of confinement, must do so through an application for habeas corpus. In contrast, a prisoner who challenges the conditions of his confinement must do so through a civil rights action.” (citation omitted)). The magistrate judge issued an order to show cause why Mr. Parrish-Parrado‘s remaining claims should not be dismissed from the habeas action.

Mr. Parrish-Parrado filed an amended petition, which was considered by the district court. Despite the magistrate judge‘s instruction to address the issue of exhaustion of state court remedies, the amended petition failed to do so. Accordingly, the district court dismissed Mr. Parrish-Parrado‘s habeas claims without prejudice. In addition, the district court dismissed the remaining claims because they were not cognizable in a habeas petition. Mr. Parrish-Parrado now appeals.

On appeal, Mr. Parrish-Parrado pursues both his habeas and civil rights claims. As we understand his petition, he again challenges the denial of parole, as well as certain conditions of his confinement. But Mr. Parrish-Parrado has again failed to address the required exhaustion of his state court remedies. See Wilson, 430 F.3d at 1118. As such, we cannot grant him habeas relief. See Thacker v. Workman, 678 F.3d 820, 838-39 (10th Cir.2012). Moreover, we agree that Mr. Parrish-Parrado‘s remaining challenges to the conditions of his confinement cannot properly be brought in a habeas petition. See Palma-Salazar, 677 F.3d at 1035. Instead, Mr. Parrish-Parrado must bring these claims as a civil rights action. Id.

Because Mr. Parrish-Parrado has failed to demonstrate that he exhausted his state court remedies for his habeas claims and because his remaining claims are not properly brought in a habeas action, we deny his request for a COA and dismiss the appeal.

Vivian L. Rader, Pagosa Springs, CO, pro se.

Steven R. Rader, Pagosa Springs, CO, pro se.

Douglas Campbell Rennie, U.S. Department of Justice, Washington, DC, for Respondent-Appellee.

ORDER AND JUDGMENT*

NEIL M. GORSUCH, Circuit Judge.

Steven Rader came to the Internal Revenue Service‘s attention after he purchased materials from a well-known tax protestor who was in the business of deliberately evading the tax laws and helping others do the same. In the end, the United States Tax Court determined that Mr. Rader was liable for unpaid taxes and penalties of nearly a million dollars.

Mr. Rader‘s spouse, Vivian, seeks to appeal this result. But the Tax Court did not find any liability on her part. Neither is there any evidence in this record, as she asserts, suggesting that the judgment against Mr. Rader created clouds on titles to properties the Raders sold many years ago. Despite being challenged to do so in this appeal, then, Ms. Rader has not identified any personal and direct injury she suffered from the judgment below. And without that she lacks standing to appeal. United States v. Ramos, 695 F.3d 1035, 1046 (10th Cir.2012).

To be sure, Mr. Rader also seeks to overturn the Tax Court‘s decision and he has standing to do so. But even construing his pro se complaint liberally and reviewing the Tax Court‘s application of law de novo and its findings of facts for clear error, we can find no fault with the Tax Court‘s disposition. See Mitchell v. Comm‘r, 775 F.3d 1243, 1246 (10th Cir.2015). For example, Mr. Rader contends that the substitute returns the Commissioner rendered in place of his own were defective. But Mr. Rader has failed to show how the returns were invalid under 26 U.S.C. § 6020, which specifies when and how the IRS may prepare substitute returns. Mr. Rader argues he was entitled to a credit for money withheld and remitted to the IRS from the proceeds of real estate sales. But we can find no flaw in the Tax Court‘s analysis explaining why the money withheld may not be credited under 26 U.S.C. § 6211(b)(1). Mr. Rader seems to take issue with several of the Tax Court‘s evidentiary rulings, including in response to his Fifth Amendment objection. But he offers few record citations that might allow this court to identify and consider his complaints in a meaningful way and, beyond that, he offers only conclusory arguments that are themselves insufficient to facilitate review by this court. See, e.g., United States ex rel. Boothe v. Sun Healthcare Grp., Inc., 496 F.3d 1169, 1175 (10th Cir.2007). Finally, Mr. Rader has forfeited his argument that the Notice of Deficiency was itself defective, for he failed to raise this argument in the Tax Court in the first instance. See Mitchell, 775 F.3d at 1248 n. 3.

Beyond his challenge to the merits of the Tax Court‘s disposition, Mr. Rader challenges its decision to sanction him under 26 U.S.C. § 6673(a)(1). But here again Mr. Rader fails to offer this court any reasoned ground on which it might hold the Tax Court abused its discretion when determining that his arguments on the merits were largely frivolous.

Ms. Rader‘s appeal (15-9001) is dismissed for lack of jurisdiction. The judgment against Mr. Rader (15-9000) is affirmed.

NEIL M. GORSUCH

CIRCUIT JUDGE

Notes

*
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are therefore ordered submitted without oral argument. This order and judgment 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.
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