FILED
United States Court of Appeals
Tenth Circuit
March 4, 2014
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
LAWRENCE M. JIRON,
Petitioner - Appellant,
v. No. 13-1524
(D.C. No. 1:13-MC-00193-LTB)
DAVID M. THORSON; MICHAEL L. (D. Colo.)
PIRRAGLIA, II; THOMAS K.
LE DOUX; RICK RAEMISCH;
JAMES FALK; JANICE B.
DAVIDSON; JOHN W.
HICKENLOOPER,
Respondents - Appellees.
ORDER DENYING
CERTIFICATE OF APPEALABILITY *
Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.
State prisoner Lawrence M. Jiron, proceeding pro se, seeks to “appeal” the
dismissal of his action purporting to criminally prosecute numerous Colorado
state officials. 1 The district court dismissed the action because Mr. Jiron “lacks
*
This order is not binding precedent, except under the doctrines of law of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.
1
This case is virtually identical to another case filed by Mr. Jiron against
other Colorado state officials. See Jiron v. Davidson, No. 14-1004 (10th Cir.
(continued...)
standing to file and prosecute a criminal action.” Order of Dismissal at 2; R. Vol.
1 at 46.
The district court considered this case to be a “miscellaneous case.” The
gist of Mr. Jiron’s action against the Defendants is that he (Mr. Jiron) was
prosecuted, convicted and sentenced pursuant to Colorado statutes which he
claims are “worthless,” invalid, and fail “to carry any force of law” because they
do not “have an attached enacting clause” under the Colorado Constitution.
Complaint at 2; R. Vol. 1 at 4. Throughout his somewhat rambling pleadings,
Mr. Jiron repeatedly seeks to “be released to a location of his choice.” Order of
Release at 1; R. Vol. 1 at 14. Thus, his complaint should have been brought as an
application for a writ of habeas corpus under 28 U.S.C. § 2241 because it is an
attack on the execution of his sentence. See Montez v. McKinna, 208 F.3d 862,
865 (10th Cir. 2000); McIntosh v. United States Parole Comm’n, 115 F.3d 809,
812 (10th Cir. 1997) (“A habeas corpus proceeding attacks the fact or duration of
a prisoner’s confinement and seeks the remedy of immediate release or a
shortened period of confinement. In contrast, a civil rights action . . . attacks the
conditions of the prisoner’s confinement and requests monetary compensation for
such conditions.” (quotation omitted)).
1
(...continued)
March _, 2014). While the two cases were filed separately in the district court
and on appeal, we treat them identically, as did the district court.
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A state prisoner must obtain a certificate of appealability (“COA”) before
pursuing a habeas petition. Allen v. Zavaras, 568 F.3d 1197, 1199 (10th Cir.
2009); 28 U.S.C. § 2253(c)(1)(A). We accordingly construe Mr. Jiron’s “appeal”
as a request for a COA. A COA will issue “only if the applicant has made a
substantial showing of the denial of a constitutional right,” 28 U.S.C.
§ 2253(c)(2), which is accomplished when an applicant shows “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) (internal quotation marks omitted). We note also that, in
1998, Mr. Jiron was permanently enjoined from filing pro se civil complaints in
the District Court for the District of Colorado without first seeking leave of court.
Mr. Jiron’s claims are completely frivolous. We accordingly deny his
request for a COA and dismiss this matter. We directed Mr. Jiron to file an
application under 28 U.S.C. § 1915 seeking to proceed on appeal without
prepayment of fees. To proceed on appeal without prepayment of fees (that is, in
forma pauperis), “an appellant 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). An argument “is frivolous where it lacks an
arguable basis in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
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So is an appeal. As stated, Mr. Jiron’s appeal is frivolous, as were his claims in
district court. He must immediately pay the full amount of fees to the clerk of the
district court. We caution Mr. Jiron that further frivolous filings in this court may
result in sanctions, as have already been imposed on him in the district court.
For the foregoing reasons, a COA is DENIED and this matter is
DISMISSED. Mr. Jiron’s request to proceed on appeal in forma pauperis is
DENIED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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