Salgado v. Folk, et al
Filing
6
ORDER of Dismissal. ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 5 is denied for lack of jurisdiction, and the action is dismissed. No certificate of appealability shall issue. Leave to proceed in forma pauperis on appeal is denied, by Judge Lewis T. Babcock on 3/18/13. (sgrim)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00282-BNB
RAMON ORTIZ SALGADO,
Applicant,
v.
MR. POLK, Warden, S.C.F., and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.
ORDER OF DISMISSAL
Applicant, Ramon Ortiz Salgado, is in the custody of the Colorado Department of
Corrections and currently is incarcerated at the correctional facility in Sterling, Colorado.
On February 1, 2013, Applicant, acting pro se, initiated this action by filing a Letter with
the Court. Magistrate Judge Boyd N. Boland reviewed the Letter, determined that
Applicant was challenging the validity of his state conviction, and directed Applicant to
submit his claims on a Court-approved from used in filing a 28 U.S.C. § 2254 action.
Magistrate Judge Boland further instructed Applicant either to pay the $5.00 filing fee or
to submit a motion requesting leave to proceed pursuant to 28 U.S.C. § 1915. Applicant
complied with the order by paying the $5.00 fee and submitting his claims on a proper
Court-approved form.
The Court must construe the Application liberally because Applicant is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The Court, however, should not act as
an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, the Court will dismiss the instant action.
After review of Ortiz-Salgado v. Watkins, et al., No. 01-cv-00012-WYD (D. Colo.
Jan. 8, 2002), appeal dismissed, No. 02-1044 (10th Cir. June 25, 2002), the Court finds
Applicant filed a prior § 2254 action that challenged the same state criminal conviction
as this action. Case No. 01-cv-00012-WYD was dismissed on the merits with prejudice.
Therefore, the instant § 2254 action is a second or successive motion and will be
dismissed for the following reasons.
Pursuant to 28 U.S.C. § 2244(b)(3), Applicant must obtain an order from the
United States Court of Appeals for the Tenth Circuit authorizing this Court to consider a
second or successive § 2254 action. See Case v. Hatch, No. 11-2094, 2013 WL
675175, at *8 (10th Cir. Feb. 26, 2013) (under the two-step “gate-keeping” mechanism
the court of appeals must review a successive habeas and then authorize a review by a
district court if necessary). In the absence of such authorization, this Court lacks
jurisdiction to consider the merits of the claims asserted in a second or successive
§ 2254 action. In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008).
The Court must either dismiss the § 2254 action for lack of jurisdiction or, if it is in
the interest of justice, transfer the matter to the Tenth Circuit pursuant to 28 U.S.C.
§ 1631. Id. at 1252. The factors for considering whether a transfer is in the interest of
justice include:
whether the claims would be time barred if filed anew in the
proper forum, whether the claims alleged are likely to have
merit, and whether the claims were filed in good faith or if, on
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the other hand, it was clear at the time of filing that the court
lacked the requisite jurisdiction.
Id. at 1251.
In the Application, under Section “F. Timeliness of Application,” Applicant wrote
“newly discovered evidence.” Nothing Applicant asserts in the twenty-four claims,
however, supports this conclusory statement. All of Applicant’s claims could have been
discovered at the time of the criminal proceeding. Applicant, therefore, fails to
demonstrate that the claims are based on newly discovered evidence. Also, Applicant
does not contend that his claims are based on a new rule of constitutional law, or were
untimely due to a state caused impediment. See 28 U.S.C. § 2244(d). It is clear that
when this action was filed the Court lacked jurisdiction and the claims were not
presented to this Court in good faith. Also, timeliness is not at issue and it is not clear
that the claims are likely to have merit. A transfer of this action to the Tenth Circuit is
not in the interest of justice. The Application, therefore, will be denied for lack of
jurisdiction.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this Order is not taken in good faith, and, therefore, in forma pauperis status will be
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Applicant files a notice of appeal he must pay the full $455 appellate filing fee
or file a motion to proceed in forma pauperis in the United States Court of Appeals for
the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
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ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254, ECF No. 5, is denied for lack of jurisdiction, and the action is
dismissed. It is
FURTHER ORDERED that no certificate of appealability shall issue because
Applicant has not made a substantial showing that jurists of reason would find it
debatable whether the procedural ruling is correct and whether the underlying claim has
constitutional merit. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this
18th
day of
March
, 2013.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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