F IL E D
United States Court of Appeals
Tenth Circuit
U N IT E D ST A T E S C O U R T O F A PP E A L S
May 29, 2007
T E N T H C IR C U IT
Elisabeth A. Shumaker
Clerk of Court
D A RIEL H O U G H,
Plaintiff-Appellant,
No. 06-1509
v. (D.C. No. 06-cv-1695-ZLW )
(D . Colo.)
JIM A LD ER DEN , Sheriff, TA D
M ENERT, County Attorney, and DAVID
A Y RO U D,
Defendants-Appellees.
------------------------------------------------
D A RIEL H O U G H,
No. 07-1023
Petitioner-A ppellant, (D.C. No. 06-cv-1947-ZLW)
(D. Colo.)
v.
C OLO RA D O D EPA RTM EN T OF
CO RR ECTIONS,
Respondent-Appellee.
O R D E R A N D JU D G M E N T *
*
After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G ).
This case is 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judgment is not binding precedent except under the doctrines of law of the case,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.
Before L U C E R O , H A R T Z, and G O R SU C H , Circuit Judges.
Dariel Hough, currently in custody in a M ichigan correctional facility,
appeals the dismissal of his most recent habeas petition, 07-1023, as well as the
dismissal of a civil rights complaint for damages under 28 U.S.C. § 1983, 06-
1509. These two matters are the latest in a series of suits brought by M r. Hough in
this circuit. This court has previously dismissed two prior habeas appeals brought
by M r. Hough, 02-1423 and 02-1460, for failure to exhaust state remedies and a
third, 04-1438, for failure to prosecute. In addition to these three prior habeas
appeals, M r. Hough had another habeas petition dismissed by the district court for
failure to exhaust state court remedies, 05-cv-10446-LTB-BNB, which he did not
appeal.
Assessing M r. Hough’s latest habeas petition, the district court found it
repetitive of the claims it had already dismissed in 05-cv-10446-LTB-BNB. The
district court also denied M r. Hough’s petition for a certificate of appealability
(“COA”). Turning to M r. Hough’s Section 1983 damages action, the court found
those claims frivolous, assessed him a strike under 28 U.S.C. § 1915(e)(2)(B),
and, for this reason, denied M r. Hough leave to proceed in form a pauperis on
appeal pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rule Appellate Procedure
24. Because he proceeds pro se, we review M r. Hough’s appeals with special
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leniency. Andrews v. Heaton, ___ F.3d ___, 2007 W L 1180423, *3 (10th Cir.
2007). Even when viewed through that lens, however, we agree with the district
court that dismissal was appropriate for substantially the reasons it provided.
Appeal No. 07-1023. Under the Antiterrorism and Effective Death Penalty
Act of 1996 (“A EDPA”), we may issue a COA only if a petitioner “make[s] a
substantial showing of the denial of a constitutional right, a demonstration that . . .
includes showing that reasonable jurists could debate w hether (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.’”
Slack v. M cDaniel, 529 U.S. 473, 483-84 (2000) (quoting Barefoot v. Estelle, 463
U.S. 880, 893 & n.4 (1983)).
M r. H ough fails to satisfy these prerequisites. He seeks to challenge two
detainers filed against him by Colorado criminal justice agencies; 1 liberally
construed, we understand M r. Hough’s challenge as suggesting that these
detainers are illegal under the Colorado statutory provisions codifying the
Interstate Agreement on Detainers (“IA D”), see Colo. Rev. Stat. Ann. §§
24-60-501 to 24-60-507. B ut, as the district court found, nothing in the IAD
1
“A detainer is a request filed by a criminal justice agency
with the institution in which a prisoner is incarcerated, asking the institution
either to hold the prisoner for the agency or to notify the agency when release
of the prisoner is imminent.” Carchm an v. Nash, 473 U.S. 716, 719 (1985).
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applies to the detainers at issue here: “‘The detainers lodged against M r. Hough
appear to [be] . . . for an outstanding parole-violation charge and for an additional
sentence already imposed against [him]. . . . The [IAD and its implementing
legislation] by its terms, only applies to detainers based upon outstanding criminal
charges, i.e., an untried indictment, information, or complaint, and, therefore, is
not applicable to M r. Hough’s detainers.’” D ist. Ct. Order of Jan. 5, 2007, at 2-3
(quoting M ag. J.’s Show Cause Order of Nov. 8, 2006, at 2-3).
The district court correctly indicated that its decision on this score was
controlled by our opinion in M cDonald v. New M exico Parole Board, where we
rejected a nearly identical challenge on the ground that the IAD “only applies to
detainers lodged on untried criminal charges and has no application to probation
or parole revocation detainers.” 955 F.2d 631, 633 (10th Cir. 1991) (citing
Carchm an v. Nash, 473 U.S. 716, 725-28 (1985)). The district court added that it
was unaware of any other controlling authority that would support the removal of
the detainers at issue, Dist. Ct. Order of Jan. 5, 2007, at 3, and, although we are
supplied with a less than ideal record, we likewise can discern none. 2
2
For example, w ith respect to a possible due process challenge, we
explained in M cDonald that a probationer’s or parolee’s liberty interest is not
implicated until he or she is taken into custody on a warrant for the alleged
probation or parole violation. 955 F.2d at 633 (citing M oody v. Daggett, 429 U.S.
78, 86 n.7 (1976)). Only then is the individual entitled to a hearing and
constitutional time limits begin to apply. Id. An individual in M r. Hough’s
(continued...)
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Appeal No. 06-1509. In this appeal, M r. Hough contends that, during a
period when he was incarcerated in a Colorado state detention center, the legal
supplies and resources he w as provided were deficient. But, as the district court
noted, “M r. Hough does not assert that a lack of legal resources hindered his
efforts to pursue” any of his then-ongoing litigation. Dist. Ct. Order of Nov. 3,
2006, at 3. 3 This is dispositive. The Supreme Court has instructed us that, in
order to present a valid claim for denial of access to the courts, an inmate must
establish a “relevant actual injury” by “demonstrat[ing] that the alleged
shortcomings in the library or legal assistance program hindered his efforts to
pursue a legal claim.” Lewis v. Casey, 518 U.S. 343, 351 (1996). Accordingly,
we must agree with the district court’s assessment that this appeal is not well
taken, that it should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and
(ii), and that the issuance of a “strike” for M r. Hough’s trial court filings was
proper under Section 1915(e)(2)(B). W e further conclude that, under our case
2
(...continued)
situation does not receive these constitutional protections, however, because his
“present confinement and consequent liberty loss derive not in any sense from the
outstanding parole violator w arrant, but from his [separate state law]
convictions.” M oody, 429 U.S. at 86.
3
Although M r. Hough did have one of the appeals he was pursuing in
M ichigan state court dismissed because he was unable to file the correct number
of copies of his brief, he expressly concedes that he was able to get that appeal
reinstated, and he has not identified for us any resulting injury to him in that or
any other matter as a result of the deficiency he alleges.
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law, this appeal requires the issuance of a second strike against M r. H ough. See
Jennings v. Natrona County D et. Ctr. M ed. Facility, 175 F.3d 775, 780 (10th Cir.
1999) (“If w e dismiss as frivolous the appeal of an action the district court
dismissed under 28 U.S.C. § 1915(e)(2)(B), both dismissals count as strikes.”).
To summarize, in Appeal No. 07-1023, we deny the application for a
certificate of appealability and thus dismiss the appeal; we also agree with the
district court’s order denying M r. Hough leave to proceed in form a pauperis. In
Appeal No. 06-1509, we likewise deny leave to proceed in form a pauperis,
dismiss pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii), affirm the district
court’s issuance of a strike under 28 U.S.C. § 1915(e)(2)(B), and add a second
strike with respect to M r. H ough’s appeal. So ordered.
ENTERED FOR THE COURT
Neil M . Gorsuch
Circuit Judge
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