James Morales Hicks v. Bill Elder; Commander Gillespie

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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JAMES MORALES HICKS,
Petitioner - Appellant,
v.
BILL ELDER; COMMANDER
GILLESPIE,
Respondents - Appellees.
No. 22-1165
(D.C. No. 1:22-CV-00654-LTB-GPG)
(D. Colo.)
_________________________________________
ORDER DENYING A CERTIFICATE OF APPEALABILITY
__________________________________________
Before BACHARACH, BALDOCK, and McHUGH, Circuit Judges.
___________________________________________
The State of Colorado had charged Mr. James Morales Hicks in
multiple criminal cases. While waiting for trial, Mr. Hicks petitioned for
habeas relief. The district court denied habeas relief, and Mr. Hicks wants
to appeal. To do so, he needs a certificate of appealability. 28 U.S.C.
§ 2253(c)(1)(A).
1. Request for a Certificate of Appealability
We can issue a certificate only upon the presentation of a reasonably
debatable appeal point. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
The district court identified four defects in the habeas petition:
(1) Mr. Hicks failed to allege facts showing a constitutional violation;
FILED
United States Court of Appeals
Tenth Circuit
November 3, 2022
Christopher M. Wolpert
Clerk of Court
Appellate Case: 22-1165 Document: 010110762934 Date Filed: 11/03/2022 Page: 1

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(2) Mr. Hicks’s request for pretrial release was not an available remedy in
this habeas action; (3) abstention would have been preferable to
intervention in the state-court proceeding; and (4) Mr. Hicks had failed to
exhaust state-court remedies.
Mr. Hicks’s threshold burden was to “explain to us why the district
court’s decision was wrong.” Nixon v City & Cnty. of Denver, 784 F.3d
1364, 1366 (10th Cir. 2015). Mr. Hicks doesn’t satisfy that burden because
he hasn’t mentioned or challenged the district court’s four reasons for
denying his request for habeas relief. Because Mr. Hicks does not explain
why the district court’s reasoning is wrong, we deny his request for a
certificate of appealability.
2. Request for Leave to Proceed in Forma Pauperis
Because Mr. Hicks cannot afford the filing fee, we grant leave to
proceed in forma pauperis.
3. Request for a Stay
After appealing, Mr. Hicks requested a stay while the district court
considered a motion entitled “Motion to Discharge by Recourse to Law.”
But the district court had denied this motion before Mr. Hicks requested
the stay. So we deny this request for a stay based on mootness.
Entered for the Court
Robert E. Bacharach
Circuit Judge
Appellate Case: 22-1165 Document: 010110762934 Date Filed: 11/03/2022 Page: 2

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