Saenz-Jurado v. Suther, No. 10-1170 (10th Cir. 2010)
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FILED United States Court of Appeals Tenth Circuit September 17, 2010 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court ABEL SAENZ-JURADO, Petitioner - Appellant, v. JOHN W. SUTHERS, The Attorney General of the State of Colorado, No. 10-1170 (D. Colorado) (D.C. No. 1:09-CV-03018-ZLW) Respondent - Appellee. ORDER DENYING CERTIFICATE OF APPEALABILITY Before MURPHY, GORSUCH, and HOLMES, Circuit Judges. This matter is before the court on Abel Saenz-Jurado s pro se requests for a certificate of appealability ( COA ) and for permission to proceed on appeal in forma pauperis. Saenz-Jurado seeks a COA so he can appeal the district court s dismissal, on timeliness grounds, 1 of his 28 U.S.C. § 2241 petition. See 28 U.S.C. § 2253(c)(1)(A) (providing no appeal may be taken from a final order in a habeas proceeding in which the detention complained of arises out of process issued by a State court unless the petitioner first obtains a COA); Montez v. 1 28 U.S.C. § 2244(d)(1) (setting out a one-year statute of limitations on habeas petitions running from the date on which the conviction became final). McKinna, 208 F.3d 862, 867 n.6 (10th Cir. 2000) ( [A] federal prisoner seeking to challenge a detainer arising out of process issued by a state court must obtain a COA in order to appeal a district court order denying relief. ). We grant SaenzJurado s request to proceed on appeal in forma pauperis. Because he has not, however, made a substantial showing of the denial of a constitutional right, 28 U.S.C. § 2253(c)(2), this court denies Saenz-Jurado s request for a COA and dismisses this appeal. The granting of a COA is a jurisdictional prerequisite to Saenz-Jurado s appeal from the denial of his § 2241 petition. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). To be entitled to a COA, Saenz-Jurado must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make the requisite showing, he must demonstrate reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Id. (quotations omitted). When a district court dismisses a § 2241 petition on procedural grounds, a petitioner is entitled to a COA only if he shows both that reasonable jurists would find it debatable whether he had stated a valid constitutional claim and debatable whether the district court s procedural ruling was correct. Slack v. McDaniel, 529 U.S. 474, 484-85 (2000). Each component of [this necessary] showing is part of a threshold inquiry, and a court may find that it can dispose of the application in a -2- fair and prompt manner if it proceeds first to resolve the issue whose answer is more apparent from the record and arguments. Id. at 485. In evaluating whether Saenz-Jurado has satisfied his burden, this court undertakes a preliminary, though not definitive, consideration of the [legal] framework applicable to each of his claims. Miller-El, 537 U.S. at 338. Although he need not demonstrate his appeal will succeed to be entitled to a COA, he must prove something more than the absence of frivolity or the existence of mere good faith. Id. Saenz-Jurado is currently in the custody of the United States Bureau of Prisons serving a 159-month sentence for conspiracy to possess with intent to distribute 500 grams or more of cocaine. In his § 2241 motion, Saenz-Jurado challenges a detainer lodged against him by Colorado state officials. SaenzJurado asserts that Colorado s refusal to timely adjudicate his parole-revocation petition violates his Sixth Amendment right to a speedy trial. In resolving the § 2241 petition, the federal district court first set out at length the numerous procedural machinations surrounding Saenz-Jurado s attempts to have the Colorado state courts adjudicate his parole revocation proceedings. The district court ultimately concluded Saenz-Jurado s petition was time barred pursuant to § 2244(d). This court need not determine whether the district court s procedural ruling is correct because Saenz-Jurado has not stated a debatable constitutional claim. Slack, 529 U.S. at 485. -3- By its very terms, the Sixth Amendment applies only to criminal prosecutions. U.S. Const. amend. VI ( In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . . ). The Supreme Court has made clear that parole revocation is not a stage of a criminal prosecution. Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973). Accordingly, courts have uniformly concluded the Sixth Amendment right to a speedy trial does not apply to parole revocation hearings. See, e.g., Bennett v. Bogan, 66 F.3d 812, 818 (6th Cir. 1995); United States v. Williams, 558 F.2d 224, 226 (5th Cir. 1977); Moultrie v. Georgia, 464 F.2d 551, 552 (11th Cir. 1972); Kartman v. Parratt, 535 F.2d 450, 455 (8th Cir. 1976). Nor can Saenz-Jurado make out a due process claim under the facts of this case. Moody v. Daggett, 429 U.S. 78, 86-91 (1976) (holding under circumstances remarkably similar to those in instant case that parole commission was under no constitutional duty to adjudicate a parolerevocation warrant until that warrant was executed and the parolee taken into custody as a parole violator). Because Saenz-Jurado has not stated a debatable constitutional claim in his habeas petition, he is not entitled to a COA. Slack, 529 U.S. at 485. -4- Accordingly, this court DENIES Saenz-Jurado s request for a COA and DISMISSES this appeal. ENTERED FOR THE COURT Michael R. Murphy Circuit Judge -5-
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