FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 13, 2012
Elisabeth A. Shumaker
Clerk of Court
CALVIN KARL CHEEKS,
Petitioner-Appellant,
v. No. 12-1183
(D.C. No. 1:12-CV-00695-LTB)
DAVID ZUPAN; THE ATTORNEY (D. Colo.)
GENERAL OF THE STATE OF
COLORADO,
Respondents-Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before KELLY, EBEL, and HOLMES, Circuit Judges.
Calvin Karl Cheeks, a state prisoner proceeding pro se, seeks a certificate of
appealability (COA) to challenge the district court’s order dismissing his petition for
habeas relief as an unauthorized second or successive 28 U.S.C. § 2254 application.
We DENY a COA and DISMISS this appeal.
BACKGROUND
Mr. Cheeks was convicted in 2007 on aggravated-robbery and other charges,
and sentenced to sixteen years’ imprisonment. He appealed, arguing that the trial
*
This order is not binding precedent except under the doctrines of law of the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.
court erroneously denied his motion to suppress. Specifically, he claimed that the
search warrant for his residence was invalid because it identified his address as “3040
South Academy Boulevard,” which was “a multi-commercial use building within a
shopping complex,” rather than “3044” South Academy Boulevard, which was one of
the building’s units. R. at 29 (quotations omitted). The Colorado Court of Appeals
determined that the search of Mr. Cheeks’s residence was constitutional because the
police obtained a second search warrant identifying the residence’s correct address
number, 3044, upon learning of the mistake. The Court of Appeals explained that the
initial entry under the first warrant’s authority did not taint the second search warrant
because the latter was not “dependent on observations made during the execution of
the first warrant. The only new information involved facts relevant not to probable
cause but only to the correctness of [Mr. Cheeks’s] address on the first warrant.” Id.
at 37. Accordingly, the court affirmed Mr. Cheeks’s conviction, with one judge
dissenting. The Colorado Supreme Court denied certiorari.
In May 2011, Mr. Cheeks filed his first petition for federal habeas relief, again
attacking the search warrants’ constitutionality. The district court denied relief,
ruling that he had already litigated his Fourth Amendment claim in state court.
Mr. Cheeks then appealed to this court, but we denied a COA and dismissed
the appeal, noting that “‘[w]here the State has provided an opportunity for full and
fair litigation of a Fourth Amendment claim, a state prisoner may not be granted
federal habeas corpus relief on the ground that evidence obtained in an
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unconstitutional search or seizure was introduced at his trial.’” Cheeks v. Smelser,
448 F. App’x 848, 850 (10th Cir. 2011) (quoting Stone v. Powell, 428 U.S. 465, 494
(1976)).
In March 2012, Mr. Cheeks filed another § 2254 habeas petition in federal
district court, arguing that the police knew before entering his residence that the
“warrant was overly broad in that it authorized the search of the entire building
designated 3040 S. Academy rather than specifying the smaller subunit . . . belonging
to petitioner.” R. at 15. The district court dismissed the petition, concluding that it
lacked jurisdiction to consider Mr. Cheeks’s second or successive habeas claim
because he had not sought authorization to file such a claim from this court. And the
district court declined to transfer the claim to this court, finding that a transfer would
not promote the interest of justice. Finally, the district court declined to issue a COA
and it denied Mr. Cheeks’s motion for leave to proceed in forma pauperis (IFP) on
appeal.
Mr. Cheeks now seeks a COA and IFP status from this court.
DISCUSSION
To obtain a COA, Mr. Cheeks must make “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard is met by
“demonstrat[ing] that reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). But when the district court’s decision rests on procedural grounds, such as a
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determination that a pleading presents unauthorized second or successive habeas
claims, “the applicant faces a double hurdle.” Coppage v. McKune, 534 F.3d 1279,
1281 (10th Cir. 2008). Specifically, the applicant must show both “that jurists of
reason would find it debatable whether the petition states a valid claim of the denial
of a constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Slack, 529 U.S. at 484.
Mr. Cheeks does not address the district court’s ruling that it lacked
jurisdiction to consider his latest habeas claim. We conclude that no reasonable jurist
could debate the district court’s ruling. See In re Cline, 531 F.3d 1249, 1251
(10th Cir. 2008) (“A district court does not have jurisdiction to address the merits of
a second or successive . . . 28 U.S.C. § 2254 claim until this court has granted the
required authorization.”).
Nor has he demonstrated any debatability in the district court’s decision to not
transfer his latest habeas claim to this court. When a prisoner files a second or
successive habeas application without first obtaining authorization from the court of
appeals, the district court has two options: dismiss it for lack of jurisdiction or
transfer it to the court of appeals if it is in the interest of justice. See In re Cline,
531 F.3d at 1252-53.
The interest of justice is not served by transferring a meritless claim. Id.
at 1251. Here, Mr. Cheeks’s latest habeas claim appears to be nothing more than a
reformulation of his Fourth Amendment challenge to the search warrants’
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identification of his address. The claim does not rely on either a new rule of
retroactive constitutional law or a previously undiscoverable factual predicate so as
to qualify for second or successive consideration. See 28 U.S.C. § 2244(b)(2).
Rather, he advances only a different interpretation of the testimony at the state-court
suppression hearing, claiming that police knew their warrant was overbroad before
they entered his residence.
Further, the Colorado Court of Appeals provided a full and fair opportunity for
litigation of Mr. Cheeks’s claim. Indeed, that court rejected even the current
formulation of Mr. Cheeks’s claim by determining that the police discovered the
initial warrant’s overbreadth after they entered Mr. Cheeks’s residence. Thus, as we
said in Mr. Cheeks’s first habeas appeal, the re-litigation of a search-and-seizure
claim will not garner habeas relief. See Cheeks, 448 F. App’x at 849-50 (citing
Powell, 428 U.S. at 494).
Finally, because Mr. Cheeks’s first habeas petition was clearly denied by the
district court and followed by an unsuccessful appeal, he “should have realized that
the forum in which he . . . filed [his second or successive claim without prior
authorization] was improper.” In re Cline, 531 F.3d at 1252 (quotation omitted);
see id. at 1251-52.
Consequently, no reasonable jurist could disagree with the district court’s
decision to dismiss, rather than transfer, Mr. Cheeks’s claim to this court.
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CONCLUSION
Mr. Cheeks’s application for a COA is DENIED and this appeal is
DISMISSED. The request for leave to proceed IFP is DENIED.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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