Filed: Sep. 09, 2016
Latest Update: Mar. 03, 2020
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT September 9, 2016 _ Elisabeth A. Shumaker Clerk of Court OLOYEA D. WALLIN, Petitioner - Appellant, v. No. 15-1299 (D.C. No. 1:13-CV-01867-MSK-CBS) MICHAEL MILLER, Warden of Crowley (D. Colo.) County Correctional Facility, Respondent - Appellee. _ ORDER DENYING CERTIFICATE OF APPEALABILITY _ Before LUCERO, MATHESON, and BACHARACH, Circuit Judges. _ This order is entered to follow up on our May
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT September 9, 2016 _ Elisabeth A. Shumaker Clerk of Court OLOYEA D. WALLIN, Petitioner - Appellant, v. No. 15-1299 (D.C. No. 1:13-CV-01867-MSK-CBS) MICHAEL MILLER, Warden of Crowley (D. Colo.) County Correctional Facility, Respondent - Appellee. _ ORDER DENYING CERTIFICATE OF APPEALABILITY _ Before LUCERO, MATHESON, and BACHARACH, Circuit Judges. _ This order is entered to follow up on our May 1..
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 9, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
OLOYEA D. WALLIN,
Petitioner - Appellant,
v. No. 15-1299
(D.C. No. 1:13-CV-01867-MSK-CBS)
MICHAEL MILLER, Warden of Crowley (D. Colo.)
County Correctional Facility,
Respondent - Appellee.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY
_________________________________
Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
_________________________________
This order is entered to follow up on our May 12, 2016 order, which was entered
both in this case and in number 15-1301, also captioned as Wallin v. Miller. The May 12
order denied petitioner’s request for a certificate of appealability on all claims applicable
to this 28 U.S.C. § 2241 proceeding. As a result, this proceeding should have been
terminated when the May 12 order was entered, but due to a clerical error it was not.
This order supplements our original order and acts to deny Mr. Wallin’s certificate
of appealability and to dismiss this matter. We incorporate the May 12 order by reference
and attach it to this order.
Although this case termination order is effective May 12, 2016, we will grant the
petitioner’s “Motion for extension of time to file Petition for Panel Rehearing and
Rehearing in Banc.” Any petition for rehearing from the petitioner addressing this
particular case must be filed on or before October 7, 2016. Any pleading filed should be
clearly marked with the case number for this matter.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
by: Lara Smith
Counsel to the Clerk
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FILED
United States Court of
UNITED STATES COURT OF APPEALS Appeals
Tenth Circuit
TENTH CIRCUIT
May 12, 2016
Elisabeth A. Shumaker
OLOYEA D. WALLIN, Clerk of Court
Petitioner - Appellant,
v. Nos. 15-1299 & No. 15-1301
(D.C. Nos. 1:13-CV-01867-MSK-CBS
and 1:14-CV-01968-MSK)
MICHAEL MILLER, Warden of
Crowley County Correctional
Facility; et al.,
Respondents - Appellees.
ORDER
Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
While on parole, Mr. Oloyea D. Wallin was convicted in a Colorado
state court of second-degree assault and sentenced to fourteen years in
prison. He filed one habeas petition under 28 U.S.C. § 2254 and another
under 28 U.S.C. § 2241. The federal district court rejected all of the claims
in both petitions, and Mr. Wallin wants to appeal. We can entertain an
appeal only if Mr. Wallin is entitled to a certificate of appealability. See
28 U.S.C. § 2253(c)(1)(A).
Appellate Case: 15-1299 Document: 01019618994 Date Filed: 05/12/2016 Page: 2
In the first habeas petition, Mr. Wallin invokes § 2254 and alleges
numerous errors. We grant Mr. Wallin a certificate of appealability on five
of these claims of error:
1. Error in allowing expert testimony on domestic violence.
2. Error in allowing use of unsubstantiated testimony by Mr.
Lehmann that he had spoken to Mr. Wallin.
3. Prosecutorial misconduct.
4. Error in the use of the alleged victim’s confidential medical
information.
5. Abuse of subpoena power.
We decline to grant Mr. Wallin a certificate of appealability on his
remaining § 2254 claims, in which he alleges
• error in allowing introduction of a recorded telephone
message into evidence,
• error in denying Mr. Wallin pre-sentence confinement
credit,
• error in allowing use of the alleged victim’s involuntary
statements,
• ineffective assistance of counsel,
• error in allowing the jury to consider the victim’s
affliction with battered-person syndrome without any
expert evaluation,
• error in allowing a prosecution witness to testif y after
observing every prior witness testif y,
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• insufficient evidence of guilt,
• error in striking of a venireperson based on minority
status,
• inadequacy of the jury instructions,
• irregularities in the preliminary hearing,
• failure to dismiss the Information even though it was
based on inadmissible statements,
• imposition of an excessive sentence based on
inadmissible evidence,
• violation of the U.S. Constitution in applying a Colorado
statute,
• error in denying a postconviction hearing,
• error by the trial judge in declining to recuse,
• error in allowing testimony that Mr. Wallin had been in
prison,
• inadequacy of the state postconviction review process,
and
• error in allowing introduction of a witness’s advice to the
jury.
In the second habeas petition, Mr. Wallin invokes § 2241 and alleges
• intentional use of false information to deny parole to Mr.
Wallin and
• inadequate staffing of the parole hearing.
We deny a certificate of appealability on all of these claims.
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I. Mr. Wallin’s § 2254 Petition
The district court addressed the merits of only three of Mr. Wallin’s
claims under 28 U.S.C. § 2254. The district court determined that Mr.
Wallin’s other habeas claims were subject to procedural default or were
not cognizable in a federal habeas action.
We believe that reasonable jurists could debate whether Mr. Wallin
procedurally defaulted on five of these claims:
1. error in allowing expert testimony on domestic violence,
2. error in allowing use of unsubstantiated testimony by Mr.
Lehmann that he had spoken to Mr. Wallin,
3. prosecutorial misconduct,
4. error in the use of the alleged victim’s confidential medical
information, and
5. abuse of subpoena power.
On these claims, we grant Mr. Wallin’s request for a certificate of
appealability. For Mr. Wallin’s other claims under § 2254, however, all
reasonable jurists would view the district court’s analysis as undebatable.
Thus, Mr. Wallin is not entitled to a certificate of appealability on the
other claims.
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A. Mr. Wallin must show a reasonably debatable appeal point.
To obtain a certificate of appealability, Mr. Wallin must make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). Mr. Wallin can meet this standard only “by demonstrating
that jurists of reason could disagree with the district court’s resolution of
his constitutional claims or that jurists could conclude the issues presented
are adequate to deserve encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003).
B. Mr. Wallin’s claims are not reasonably debatable regarding
the improper introduction of a recorded telephone message,
the state trial court judge’s failure to recuse herself, and the
erroneous calculation of credits for pretrial confinement.
Mr. Wallin alleges error in allowing introduction of a recorded
telephone message, failure of the trial judge to recuse herself, and
miscalculation of credits for pretrial confinement. These challenges are not
reasonably debatable.
1. Mr. Wallin is not entitled to appeal the introduction of the
recorded telephone message.
While Mr. Wallin was paroled for a prior offense, he allegedly
assaulted his ex-wife. After learning of the incident, a parole officer
directed Mr. Wallin to go to a police station and speak with a detective.
Mr. Wallin did not visit the station. Instead, he called the station and left a
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recorded message for the detective. In his message, Mr. Wallin said,
“[T]hey were trying to make it domestic violence.” Mr. Wallin explained
that (1) his ex-wife’s injuries were the result of an accident and (2) he
wanted to resolve the matter.
Over Mr. Wallin’s objection, the state trial court allowed the
prosecution to use the recording, holding that Mr. Wallin’s statements were
voluntary and that the parole officer had not compelled Mr. Wallin to
incriminate himself. The state appeals court affirmed.
Mr. Wallin challenges the rulings, contending that
• he was compelled to provide the statement and
• his parole status rendered the exchange a custodial
interrogation, triggering his Fifth Amendment privilege
against self-incrimination.
All reasonable jurists would reject these contentions.
First, under our precedents, the statements were clearly voluntary.
Although the exchange was initiated by a parole officer, the parole
officer’s instruction is not considered coercive. See Minnesota v. Murphy,
465 U.S. 420, 427 (1984) (stating that a probation officer’s authority to
compel a parolee’s attendance is not inherently coercive). Mr. Wallin was
not questioned; he simply left a message for the police department and the
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substance of his statements was not directed or suggested by a law
enforcement officer. As a result, Mr. Wallin’s statements were voluntary.
Similarly, no jurist could reasonably consider the parole officer’s
instruction as a violation of Mr. Wallin’s right against self-incrimination.
Mr. Wallin was not “in custody” when he made the potentially
incriminating statements. Thus, the parole officer had no constitutional
obligation to warn Mr. Wallin against self-incrimination. Roberts v. United
States, 445 U.S. 552, 560-61 (1980).
Mr. Wallin has not shown a violation of his rights under the Fifth and
Fourteenth Amendments, and no reasonable jurist would disagree with the
district court’s legal analysis regarding introduction of the recorded
telephone message. Thus, Mr. Wallin is not entitled to a certificate of
appealability on this claim.
2. Mr. Wallin is not entitled to appeal the trial judge’s refusal
to recuse herself.
At trial, Mr. Wallin moved for disqualification of the trial judge,
arguing that she had displayed bias by delaying the proceedings. This
motion was denied, and the ruling is not subject to reasonable debate.
Due process requires “an absence of actual bias in the trial of cases.”
In re Murchison, 349 U.S. 133, 136 (1955). A judge’s recusal may be
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appropriate when the source of the judge’s bias arises from an extrajudicial
source. Liteky v. United States, 510 U.S. 540, 554-55 (1994). Rulings,
however, do not ordinarily provide grounds for recusal. See
id. at 555
(“[J]udicial remarks during the course of a trial that are critical or
disapproving of, or even hostile to . . . the parties, or their cases,
ordinarily do not support a bias or partiality challenge.”). Recusal is
necessary only when judges display bias in their rulings that is “so extreme
as to display clear inability to render fair judgment.”
Id. at 551.
Mr. Wallin relies on the state trial judge’s rulings delaying the trial.
But even if the trial judge had erred in delaying the trial, the rulings
allowing the delays were not sufficiently extreme to require the judge’s
recusal or to constitute a denial of due process. Only seven months elapsed
between Mr. Wallin’s arraignment and his sentencing. 1 Cf. Doggett v.
United States, 505 U.S. 647, 652 (1992) (holding that an 8.5-year delay
between an arrest and indictment did not deprive the defendant of due
process).
1
A postconviction matter was delayed six years. But that delay cannot
show the judge’s need to recuse prior to entry of a judgment.
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Because no reasonable jurist could debate the validity of the due
process claim, Mr. Wallin is not entitled to a certificate of appealability to
appeal the trial judge’s denial of the motion to recuse.
3. Mr. Wallin is not entitled to appeal the calculation of
credits for pretrial confinement.
During the time that Mr. Wallin spent in custody awaiting sentencing
on an assault charge, he was still on parole for an earlier offense. The state
court applied confinement credit for that time to his earlier sentence but
not to his new sentence for the assault. This allocation of credit was
required under Colorado law. Colo. Rev. Stat § 18-1.3-405.
Mr. Wallin moves for habeas relief under § 2254, claiming that he
could not post bail and arguing that application of the Colorado statute
required him to serve more time than another prisoner who had been able
to post bail. According to Mr. Wallin, the difference in prison time
resulted in a denial of equal protection.
Mr. Wallin’s challenge is not cognizable under § 2254 because the
calculation of credits did not affect the validity of his conviction or
sentence. Typically we consider this kind of challenge under § 2241. See,
e.g., Hamm v. Saffle, 300 F.3d 1213, 1216 (10th Cir. 2002). But even if we
were to recharacterize the claim as one brought under § 2241, Mr. Wallin
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could appeal only if we issue a certificate of appealability. Montez v.
McKinna, 208 F.3d 862, 867-69 (10th Cir. 2000).
We rejected a virtually identical claim in Vasquez v. Cooper, 862
F.2d 250, 251-55 (10th Cir. 1988). Under Vasquez, Mr. Wallin’s claim is
not reasonably debatable. Thus, we decline to issue a certificate of
appealability on this claim.
C. Mr. Wallin is entitled to appeal the disposition of his
challenges to his conviction involving introduction of expert
testimony, involuntariness of the alleged victim’s
statements, confidentiality of medical information, abuse of
subpoena power, and prosecutorial misconduct.
Mr. Wallin also sought habeas relief under § 2254 based on alleged
errors involving
• introduction of an expert witness’s opinion testimony on
the impact of domestic violence,
• introduction of involuntary statements by the alleged
victim,
• misconduct by the prosecutor,
• use of the alleged victim’s confidential medical
information, and
• abuse of subpoena power.
The federal district court held that Mr. Wallin had procedurally defaulted
on these claims. In light of this ruling, we can grant a certificate of
appealability only if reasonable jurists could debate (1) the applicability of
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procedural default and (2) the merits. See Frost v. Pryor, 749 F.3d 1212,
1230 n.11 (10th Cir. 2014) (procedural default); Slack v. McDaniel,
529
U.S. 473, 484 (2000) (merits). Given the sparse record and insufficient
adversarial briefing, we believe that the issues involving procedural
default and the merits are reasonably debatable.
After Mr. Wallin was convicted, he filed two motions in state court:
a motion for a new trial and a motion for postconviction relief. Under state
law, the court would ordinarily bear an obligation to deny postconviction
relief if the same claim (1) had been previously rejected in a direct appeal
or postconviction proceeding or (2) could have been presented in a prior
appeal or postconviction proceeding. Colo. R. Crim. P. 35(c)(3)(VI)-(VII).
Exceptions exist, but none would even arguably apply here. See Colo. R.
Crim. P. 35(c)(3)(VI)(a)-(b), VII(a)-(e).
In light of the state law governing postconviction relief, a federal
appellate panel considering procedural default would need to begin with
the state appellate court’s rationale. The state appeals court held that under
state law, the motion for a new trial constituted a motion for
postconviction relief. On that basis, the state appeals characterized Mr.
Wallin’s arguments as “successive” on the ground that they were or could
have been presented earlier in the direct appeal or the motion for a new
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trial. Thus, the state appeals court declined to consider the merits of any of
the arguments presented in Mr. Wallin’s subsequent motion for
postconviction relief.
In light of the state appeals court’s characterization of Mr. Wallin’s
arguments as successive, the federal district court concluded that Mr.
Wallin had procedurally defaulted on the habeas claims because they were
based on an adequate and independent state procedural ground. This
conclusion does not distinguish between two types of successive claims:
(1) those that had been asserted earlier and (2) those that could have been
presented earlier.
The state appeals court’s refusal to consider the postconviction
claims could have been based on the fact that these claims
• had already been decided in connection with the direct
appeal or the motion for a new trial or
• could have been presented earlier but weren’t.
But which was it? To the state appeals court, the difference would not have
mattered because either way, Mr. Wallin’s claims would not have been
cognizable in postconviction proceedings. For purposes of federal habeas
relief, however, the difference might be significant because the habeas
claims would not be procedurally barred if they had already been presented
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in the motion for a new trial. See Cone v. Bell, 556 U.S. 449, 467 (2009)
(“When a state court refuses to readjudicate a claim on the ground that it
has been previously determined, the court’s decision . . . provides strong
evidence that the claim has already been given full consideration by the
state courts and thus is ripe for federal adjudication.” (emphasis in
original)); see also Davis v. Workman,
695 F.3d 1060, 1072 (10th Cir.
2012) (“A state court’s invocation of res judicata does not . . . create a
procedural bar to relief under § 2254.”).
The federal district court did not distinguish between Mr. Wallin’s
claims that were raised earlier and those that could have been raised
earlier, but we must draw this distinction to determine whether Mr. Wallin
is entitled to an appeal.
For example, it is apparent from the record that Mr. Wallin’s direct
appeal included a challenge to the admissibility of expert testimony on
domestic violence. This issue was properly raised in the direct appeal, and
the Colorado Court of Appeals decided this issue on the merits. See R. at
73-77 (opinion); id. at 354-59 (Mr. Wallin’s opening brief in the direct
appeal). Thus, on this claim, the federal district court’s invocation of
procedural default is at least reasonably debatable.
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The same is true of Mr. Wallin’s habeas claims involving
involuntariness of the victim’s statements, use of the victim’s confidential
medical information, abuse of subpoena power, and prosecutorial
misconduct. The Colorado Court of Appeals rejected these claims in Mr.
Wallin’s postconviction appeal, reasoning that the gist of these claims had
already been decided through the motion for a new trial. R. at 59-60; see
also id. at 60 (explaining that some of the arguments for Mr. Wallin’s
prosecutorial misconduct claim had been previously raised, but the
“remaining arguments” for this claim had not been previously raised). In
these circumstances, reasonable jurists could debate the federal district
court’s finding of a procedural default.
To obtain a certificate of appealability, Mr. Wallin must also show
that reasonable jurists “would find it debatable whether the petition states
a valid claim of the denial of a constitutional right.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). But we have little information with which to
assess the merits of these habeas claims. For example, our record on appeal
does not include the trial transcript or meaningful adversarial briefing on
Mr. Wallin’s habeas claims.
When the record is too sparse for meaningful evaluation, a
reasonable jurist might conclude that the habeas claims are at least
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debatable. As a result, we grant a certificate of appealability on Mr.
Wallin’s challenges to the introduction of expert testimony, introduction of
the alleged victim’s statements, use of confidential medical information,
use of subpoena power, and conduct of the prosecutor.
D. Mr. Wallin is not entitled to appeal the remaining
challenges to his conviction under § 2254.
In the § 2254 habeas petition, Mr. Wallin also alleges
• error in allowing introduction of unsubstantiated
testimony by Mr. Lehmann that he had spoken to Mr.
Wallin,
• ineffective assistance of counsel,
• error in allowing the jury to consider the victim’s
affliction with battered-person syndrome without any
expert evaluation,
• error in allowing a prosecution witness to observe the
trial proceedings before testif ying,
• insufficient evidence of guilt,
• striking of a venireperson based on minority status,
• inadequacy of the jury instructions,
• irregularities in the preliminary hearing,
• failure to dismiss the Information even though it was
based on inadmissible statements,
• imposition of an excessive sentence,
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• violation of the U.S. Constitution in applying a Colorado
statute,
• violation of the U.S. Constitution in allowing
introduction of testimony that Mr. Wallin had been in
prison, and
• error in allowing a witness to advise the jury.
The federal district court regarded these habeas claims as procedurally
barred. In doing so, the court again did not distinguish between
• Mr. Wallin’s claims that were rejected in state
postconviction proceedings because the claims had been
decided earlier and
• Mr. Wallin’s claims that were rejected in state
postconviction proceedings because the claims could have
been presented earlier.
See Colo. R. Crim. P. 35(c)(3)(VI)-(VII). Nonetheless, all reasonable
jurists would agree with the federal district court because these claims
were not timely raised in state court.
Even now, Mr. Wallin has never presented the state appeals court
with his claims involving
• inadequacy of the jury instructions,
• constitutional error in applying a Colorado statute,
• error in allowing introduction of testimony by Mr.
Lehmann that he had spoken to Mr. Wallin, and
• imposition of an excessive sentence.
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These claims were omitted in the direct appeal, the motion for a new trial,
and the motion for postconviction relief.
Mr. Wallin could theoretically return to state district court to exhaust
these claims. If he did so, however, the state courts would decline to
consider the claims because they could have been presented earlier. See
Colo. R. Crim. P. 35(c)(3)(VII). In these circumstances, we would consider
the habeas claims subject to an “anticipatory procedural default.” See
Moore v. Schoeman, 288 F.3d 1231, 1233 n.3 (10th Cir. 2002)
(“‘Anticipatory procedural bar’ occurs when the federal courts apply
procedural bar to an unexhausted claim that would be procedurally barred
under state law if the petitioner returned to state court to exhaust it.”).
To avoid the anticipatory procedural default, Mr. Wallin would need to
show either (1) “cause” for failing to present the claims in earlier
proceedings and resulting “prejudice” or (2) a fundamental miscarriage of
justice based on a credible showing of actual innocence. Frost v. Pryor,
749 F.3d 1212, 1231 (10th Cir. 2014).
Mr. Wallin has not attempted to make either showing. Thus, any
reasonable group of appellate jurists would reject Mr. Wallin’s claims
based on anticipatory procedural default. In these circumstances, we
decline to issue a certificate of appealability on Mr. Wallin’s claims
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involving inadequacy of the jury instructions, constitutional error in
application of a Colorado statute, error in allowing testimony by Mr.
Lehmann about a conversation with Mr. Wallin, and imposition of an
excessive sentence.
We can tell from the record that the state appeals court reasoned that
Mr. Wallin could have presented the remainder of his § 2254 claims earlier
but didn’t. For example, the Colorado Court of Appeals held that
• the ineffective assistance claim could have been brought
in Mr. Wallin’s motion for a new trial and
• Mr. Wallin could have argued in the direct appeal that the
evidence of guilt had been insufficient, the prosecutor
had improperly stricken a venireperson based on minority
status, the preliminary hearing had involved
irregularities, and the Information had been deficient.
R. at 59, 61, 63.
E. Mr. Wallin is not entitled to appeal on his habeas claims
involving deficiencies in the state postconviction
proceedings.
Mr. Wallin alleges irregularities in the state postconviction
proceedings. But our precedents are clear: challenges involving state
postconviction proceedings are not cognizable in a federal habeas action
because challenges of this type do not involve a constitutional violation in
the underlying conviction. See Hopkinson v. Shillinger, 866 F.2d 1185,
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1219 (10th Cir. 1989) (“The presence of a procedural deficiency in a
state’s scheme for postconviction relief . . . does no violence to federal
constitutional rights.”), overruled on other grounds as stated in Phillips v.
Ferguson, 182 F.3d 769, 772-73 (10th Cir. 1999).
Under these precedents, no reasonable jurist would credit Mr.
Wallin’s challenge to the denial of postconviction relief. As a result, Mr.
Wallin is not entitled to a certificate of appealability on his habeas claims
involving irregularities in the state postconviction proceedings.
II. Mr. Wallin’s § 2241 Petition
Mr. Wallin also brings challenges under 28 U.S.C. § 2241, arguing
that his sentence was improperly executed. According to Mr. Wallin, the
Parole Board
• denied him parole and community-corrections placement
based on incorrect information and
• staffed his parole hearing with only a single member of
the Parole Board.
We must again determine if these challenges are reasonably debatable. See
28 U.S.C. § 2253(c)(2). In our view, they are not.
If Mr. Wallin were allowed to appeal, the appellate panel would
engage in de novo review of the federal district court’s legal analysis.
Wilson v. Jones, 430 F.3d 1113, 1117 (10th Cir. 2005).
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In the § 2241 petition, Mr. Wallin requests removal of erroneous
information from his file, a new parole hearing, and reconsideration of the
parole board’s denial of community placement. But before these claims
were adjudicated in federal district court, Mr. Wallin obtained parole. With
the grant of parole, the claims in Mr. Wallin’s § 2241 petition became
moot.
An appeal ordinarily becomes moot under Article III of the U.S.
Constitution when a petitioner no longer suffers “actual injury that can be
redressed by a favorable judicial decision.” Iron Arrow Honor Soc’y v.
Heckler, 464 U.S. 67, 70 (1983). An exception exists when the challenged
sentence creates collateral consequences. Rhodes v. Judiscak,
676 F.3d
931, 933 (10th Cir. 2012).
Even if Mr. Wallin were to prevail on the merits, he has already
obtained his requested relief and we cannot shorten his parole term in an
attempt to “make up” for a longer term of incarceration. See id. Because
Mr. Wallin’s unexpired sentence cannot be reduced or eliminated by a
ruling in his favor, his habeas claims are now moot.
Mr. Wallin contends that the allegedly erroneous information
remaining in his prison record represents an ongoing injury because he may
eventually return to prison and, if he does, that information would again be
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held against him. But that risk is speculative; we assume that Mr. Wallin
will not re-offend. Id., Spencer v. Kemna,
523 U.S. 1, 16 (1998). If Mr.
Wallin does not return to criminal activity and return to prison, he will not
face any consequences as a result of the alleged errors contained in his
prison file.
Because the § 2241 claims are moot, we conclude that no reasonable
jurist would entertain these claims. Therefore, Mr. Wallin is not entitled to
a certificate of appealability on the claims in his § 2241 petition.
III. Disposition
We grant a certificate of appealability on Mr. Wallin’s claims
involving the admissibility of expert testimony, involuntariness of his
statements, use of confidential medical information, abuse of subpoena
power, and prosecutorial misconduct. We direct the respondent to file a
response brief on these claims within 21 days. With the response brief, the
respondent shall supplement the record on appeal with all material
evidence relating to these claims.
We deny a certificate of appealability on all of Mr. Wallin’s other
claims.
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IV. Motion for Leave to Proceed in Forma Pauperis
Mr. Wallin seeks leave to proceed in forma pauperis. This request is
granted.
Entered for the Court
Robert E. Bacharach
Circuit Judge
22
