FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 18, 2011
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
RONALD HUTCHINSON,
Petitioner - Appellant,
v. No. 11-1022
(D. Colo.)
KEVIN MILYARD, Warden; THE (D.C. No. 1:08-CV-00797-CMA-BNB)
ATTORNEY GENERAL OF THE STATE
OF COLORADO,
Respondents - Appellees.
ORDER DENYING LEAVE TO PROCEED
ON APPEAL IN FORMA PAUPERIS,
DENYING CERTIFICATE OF APPEALABILITY,
AND DISMISSING APPEAL
Before O'BRIEN, McKAY, and TYMKOVICH, Circuit Judges.
Ronald Hutchinson, a Colorado state prisoner proceeding pro se,1 wants to appeal
from the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition. He alleged his
sentence (which was enhanced because the legislature determined the crime for which he
was convicted presented an “extraordinary risk of harm to society”) and the application
of mandatory parole violated his constitutional rights under Apprendi v. New Jersey, 530
1
We liberally construe Hutchinson’s pro se filings. See Ledbetter v. City of
Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). The district court
concluded he did not make “a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). Because its decision is not debatably incorrect we deny his
request for a Certificate of Appealability (COA).
I. BACKGROUND
Hutchinson pled guilty to the distribution of drugs (a class three felony).2 A class
three felony in Colorado ordinarily carries a sentence of imprisonment ranging from four
to twelve years plus five years of mandatory parole. Colo. Rev. Stat. § 18-1.3-
401(1)(a)(V)(A) (2005). However, the Colorado Legislature designated certain class
three felonies as “extraordinary risk” crimes and increased the maximum presumptive
range of imprisonment by four years. Colorado Revised Statutes § 18-1.3-401(10)
(2005). The offense to which Hutchinson pled guilty is one such crime and the range of
imprisonment was, therefore, four to sixteen years. He was sentenced to sixteen years
imprisonment followed by five years of mandatory parole.
Hutchinson filed a state petition for post-conviction relief claiming the applicable
Colorado statutes imposed a sentencing enhancement based on facts not contained in the
indictment or the jury’s verdict in violation of Apprendi and Blakely. The state district
court denied relief and the Colorado Court of Appeals affirmed in an unpublished
opinion. The Court of Appeals stated:
Because the extraordinary risk designation is an inherent part of the
2
In a separate case, Hutchison pled guilty to drug possession (a class four felony).
The sentence in that case is irrelevant to this appeal.
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governing statutory scheme, any increase in the presumptive range flows
automatically from the fact of conviction. Therefore, contrary to his
assertion, defendant is not entitled to a jury determination on the issue of
whether the offense posed an extraordinary risk of harm to society. See
People v. Kendrick, 143 P.3d 1175, 1176 (Colo. App. 2006).
(R. Vol. 1 at 17.)
Hutchinson further argued the imposition of mandatory parole caused his sentence
to exceed the statutory maximum. The court relied on Kendrick to reject this claim as
well. In Kendrick, the Colorado Court of Appeals explained that mandatory parole in
addition to a defendant’s sentence does not violate either Apprendi or Blakely because
“the use of the term ‘maximum sentence’ [under Colorado law] is intended to refer only
to the length of imprisonment, separate from any period of parole.”3 Kendrick, 143 P.3d
at 1177. Following the Colorado Supreme Court’s denial of his request for certiorari,
Hutchinson filed this § 2254 petition.
The district court, adopting the recommendation of the magistrate judge (over
Hutchinson’s objections), concluded the determination of the Colorado Court of Appeals
was not contrary to or an unreasonable application of Supreme Court precedent. It also
denied a COA and his subsequent request to proceed in forma pauperis (ifp) on appeal
because he failed provide a verified prisoner trust account statement. Rather than
correcting his deficient request in the district court Hutchinson filed a request to proceed
3
Colorado’s mandatory parole is different than parole under traditional sentencing
schemes. Under traditional sentencing schemes, an inmate who is released on parole
“exchanges a certain portion of his or her prison term for a period of non-imprisonment
custody.” Craig v. People, 986 P.2d 951, 958 n.3 (Colo. 1999) (emphasis omitted). In
Colorado, however, even a prisoner who serves an entire prison sentence is still subject to
the conditions of parole for the additional mandatory period. Id.
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ifp with this Court. We deny his ifp request because his application for a COA is
frivolous.4
II. DISCUSSION
A COA is a jurisdictional prerequisite to our review of a petition for a writ of
habeas corpus. Miller–El v. Cockrell, 537 U.S. 322, 336 (2003). We will issue a COA
“only if the applicant has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). To make such a showing, an applicant must demonstrate
“that 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.” Slack v. McDaniel, 529 U.S.
473, 484 (2000) (quotations omitted).
In Blakely, the Supreme Court reiterated the holding of Apprendi that “‘[o]ther
4
Hutchinson provided the necessary income certification in his ifp application to
this Court within ten days of receiving the district court’s order denying permission to
proceed ifp on appeal. He does not explain why he could not have presented the same
excuses and cured this deficiency in the district court. A motion to proceed ifp on appeal,
supported by required documents, must be made in the first instance to the district court,
thereby giving it the opportunity to decide if “it is not taken in good faith.” 28 U.S.C.
1915 § (a)(3); see also Fed. R. App. P. 24(a)(1). Only if that motion is denied is there
occasion to file an ifp motion with this Court. See Fed. R. App. P. 24(a)(5). The filing
must be made within thirty days after notice of a district court’s denial. Id. Our
consideration of an appropriate and timely motion is not a review of the district court’s
denial, but an original consideration. Boling–Bey v. U.S. Parole Comm'n, 559 F.3d 1149,
1154 (10th Cir. 2009). Hutchinson failed to properly request to proceed ifp on appeal in
the district court. His motion was not decided on the merits; rather he failed to supply the
required information. He should have, as a pre-condition to filing an ifp motion with this
Court, submitted the appropriate documentation to the district court to allow it an
opportunity to decide his request on the merits. Nevertheless, solely in the interest of the
expeditious processing of appeals, we will consider his ifp motion.
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than the fact of a prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.’” Blakely, 542 U.S. at 301 (quoting Apprendi, 530 U.S. at 490). In
applying this holding to the State of Washington’s determinate sentencing scheme,
Blakely clarified that the “statutory maximum” is “not the maximum sentence a judge
may impose after finding additional facts, but the maximum he may impose without any
additional findings.” Id. at 303-04.
As the state district court, the Colorado Court of Appeals, and the federal district
court explained this is not an Apprendi or Blakely issue as no judicial fact finding was
involved. Hutchinson’s sentence was based solely on the charge to which he pled guilty,
a pure statutory classification. The Colorado Court of Appeals’ conclusion is not
contrary to established federal law.
To proceed ifp on appeal, Hutchinson “must show a financial inability to pay the
required filing fees and the existence of a reasoned, nonfrivolous argument on the law
and facts in support of the issues raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d
502, 505 (10th Cir. 1991) (emphasis added). We have solicitously reviewed his filings.
He has failed to pass the threshold. An appeal on a matter of law is frivolous where
“[none] of the legal points [are] arguable on their merits.” Anders v. California, 386 U.S.
738, 744 (1967). Hutchinson’s arguments are contrary to settled law; and he makes no
reasoned argument for modification of that law.
Hutchinson’s application for a COA and his motion to proceed ifp on appeal are
DENIED. This matter is DISMISSED. Hutchinson must pay the filing and docket fees
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in full to the clerk of the district court. See Kinnell v. Graves, 265 F.3d 1125, 1129 (10th
Cir. 2001).
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
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