Joshua David Gess v. Churnet; Winstead, Ausa; 10th Circuit District Court; Usms

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_______________________________________
JOSHUA DAVID GESS,
Petitioner - Appellant,
v.
CHURNET; WINSTEAD, AUSA;
10TH CIRCUIT DISTRICT COURT;
USMS,
Respondents - Appellees.
No. 21-1141
(D.C. No. 1:20-CV-03431-LTB)
(D. Colo.)
_______________________________________
ORDER
_______________________________________
Before BACHARACH, MURPHY, and CARSON, Circuit Judges.
_______________________________________
This matter involves the basic obligation of an appellant to say how
the district court erred. Nixon v. City & Cnty. of Denver, 784 F.3d 1364,
1366 (10th Cir. 2015). 1 The district court ordered dismissal without
prejudice for failure to prosecute, and the petitioner requested
reconsideration. When this request was denied, the petitioner said that he
wanted to appeal. To appeal, though, he needs a certificate of
1 Though the petitioner is pro se, he bears the same obligation. See
Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840–41 (10th Cir.
2005) (stating that even unrepresented litigants must present an argument
with citation of the record and supporting legal authority).
FILED
United States Court of Appeals
Tenth Circuit
September 17, 2021
Christopher M. Wolpert
Clerk of Court
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appealability. 28 U.S.C. § 2253(c)(1)(B). We decline to issue a certificate
of appealability and dismiss the matter.
I. Failure to Cure Defects in the Motion for Leave to Proceed in
Forma Pauperis
Every appellant must prepay the district court’s filing fee or obtain
leave to proceed in forma pauperis. See Greene v. Access Servs., Inc., 808
F. App’x 685, 687 (10th Cir. 2020) (unpublished). Here the filing fee was
$5. 28 U.S.C. § 1914(a). Rather than prepay the $5, the petitioner moved
for leave to proceed in forma pauperis.
For this motion, the district court’s local rules required the use of a
particular form. D.C.COLO.LCivR 5.1(c). The form required prisoners to
attach their account statements. See U N ITED S TATES D ISTRICT C OURT FOR
THE D ISTRICT OF C OLORADO , P RISONER ' S M OTION AND A FFIDAVIT FOR
L EAVE TO P ROCEED P URSUANT TO 28 U.S.C. § 1915 IN A H ABEAS C ORPUS
A CTION (Apr. 15, 2002), available at
http://www.cod.uscourts.gov/Portals/0/Documents/Forms/CivilForms/Moti
on_Pursuant_to_1915-Waive_Fee-Habeas_Corpus.pdf (last visited Aug. 26,
2021).
The petitioner used another form, which stated that he’d attached a
copy of his account statement. But no such statement was attached. The
court thus ordered the petitioner to file the request on a court-approved
form and submit a prison account statement with his current balance.
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Despite this order, the petitioner didn’t use the court-approved form
or submit the prison account statement. 2 So the district court again ordered
the petitioner to cure these defects within 30 days, warning that failure to
timely comply would result in dismissal without prejudice.
The petitioner tried to comply, submitting a new motion for leave to
proceed in forma pauperis. But the new motion contained the same defects:
It was not on the correct form, and the petitioner did not include a prison
account statement. 3
The petitioner said that he couldn’t obtain the account statement. So
the court directed him to submit copies of his request to prison authorities
and their refusal to provide the form. In addition, the court reminded the
petitioner to submit the motion on the court-approved form, stating that
(1) he had 30 days to comply and (2) a failure to timely comply would lead
to dismissal without prejudice.
The petitioner did not timely comply, and the district court ordered
dismissal without prejudice for failure to prosecute the action. When the
2 The form stated that he had no assets. Within five days of filing the
motion, he received $100 in his prison account.
3 The form stated that (1) the filing fee was $350 and (2) an account
statement was attached. Because the petitioner used the wrong form, he
incorrectly stated the filing fee. The district court had twice informed the
petitioner that the filing fee was only $5.
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action was dismissed, the petitioner had $99.44 in his prison account 4—
more than enough to pay the $5 filing fee.
The petitioner wants a certificate of appealability to allow an appeal
of this dismissal. We can grant a certificate only upon the presentation of a
reasonably debatable appeal point. Laurson v. Leyba, 507 F.3d 1230, 1232
(10th Cir. 2007). But the petitioner doesn’t say what the district court did
wrong. So we lack any basis to find a reasonably debatable appeal point.
See Reedy v. Werholtz, 660 F.3d 1270, 1275 (10th Cir. 2011) (stating that
we do not address the matter when the appellant’s opening brief doesn’t
challenge the district court’s reasoning).
II. Denial of Reconsideration
The petitioner moved for reconsideration, stating that prison
authorities had been slow in providing the required account statement. The
district court declined reconsideration for two reasons:
4 After the action was dismissed, the petitioner submitted the account
statement. It showed that
• within ten days of filing the habeas petition, he received $100
and
• one day before the dismissal, he had $99.44 in his account.
The filing fee was only $5. See 28 U.S.C. § 1914(a). The record does not
suggest any reason that the petitioner couldn’t pay the filing fee. And the
district court had no way of knowing the petitioner’s ability to pay the
filing fee because he didn’t submit the account statement until the action
had already been dismissed.
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1. The petitioner didn’t act diligently in responding to the prior
orders.
2. He pleaded guilty, waiving his claim to violation of the Speedy
Trial Act.
The petitioner again fails to say how either rationale is wrong. So we have
no basis to find a reasonably debatable appeal point with respect to the
order denying reconsideration. See id.
* * *
With no reasonably debatable appeal point, we
• decline to issue a certificate of appealability and
• dismiss this matter. 5
Entered for the Court
Robert E. Bacharach
Circuit Judge
5 The petitioner also seeks leave to proceed in forma pauperis during
the appeal. The filing fee on appeal is much larger ($505) than the filing
fee in district court ($5). From his previous account statement, we
conclude that the petitioner can’t afford to prepay the $505 filing fee. We
thus grant his appellate request to proceed in forma pauperis.
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