Jiron v. Swift

ORDER DENYING CERTIFICATE OF APPEALABILITY Harris L Hartz Circuit Judge This is the second occasion on which we have been asked to review the denial of relief under 28 U.S.C. § 2254 for Christina Jirón with respect to her Colorado conviction and sentence. On the prior occasion we considered a challenge to the district court’s dismissal without prejudice of a § 2254 application filed on her behalf by her father, Michael Jirón. See Jiron ex rel. Jiron v. Rio Grande Cty., 599 Fed.Appx. 339 (10th Cir. 2015). We dismissed the appeal as to Ms. Jirón because she did not file a notice of appeal (the one signed by her father on her behalf was not effective as to her) and denied Mr. Jiron’s request for a certificate of appealability (COA), see 28 U.S.C. § 2253(c)(1)(A) (requiring COA to appeal denial of § 2254 relief), because he failed to satisfy the prerequisites for “next friend” standing. See Jiron, 599 Fed.Appx. at 340. Mr. Jirón has once again filed an application under 28 U.S.C. § 2254 challenging his daughter’s conviction and sentence. And once again the district court dismissed the § 2254 application without prejudice because Ms. Jirón failed to cure its deficiencies and Mr. Jirón failed to establish “next friend” standing. The only difference in this court this time around is that both Ms. Jirón and Mr. Jirón have requested a COA to appeal the dismissal. We deny both requests and dismiss both appeals. 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(e)(2). This standard requires “a demonstration that ... includes showing 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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (internal quotation marks omitted). If the application was denied on procedural grounds, the applicant faces a double hurdle. Not only must the applicant make a substantial showing of the denial of a constitutional *706 right, but he must also show “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.”- Id. We deny Mr. Jiron’s request for a COA because reasonable jurists would not find it debatable whether the district court was correct in concluding that he failed to establish “next friend” standing. To establish such standing, Mr. Jirón had the burden to (1) “provide an adequate explanation— such as inaccessibility, mental incompetence, or other disability—-why [Ms. Jir-ón could not] appear on [her] own behalf to prosecute the action,” and (2) show that he was “truly dedicated to [her] best interests.” Whitmore v. Arkansas, 495 U.S. 149, 163, 164, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). In both his submissions to the district court and to this court, Mr. Jirón offers nothing more than eonclusory assertions that Ms. Jirón is unable to protect her interests, that he is truly dedicated to her best interests, and that he has been the only one representing her since January of 2014. Giving his submissions a liberal construction, see Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005), it appears that his most specific assertion is that he has standing because Ms. Jirón did not receive certain documents from the district court and she could not respond to the court because she is incarcerated. But Ms. Jirón was able to file her own request for a COA and Mr. Jirón does not explain how her incarceration interfered with her ability to communicate with the district court. We also deny Ms. Jiron’s request. She did not respond when the district court pointed to deficiencies in her application that needed to be cured. And in this court her brief does not address the grounds for the district court’s dismissal and describes her claim as proceeding under 42 U.S.C. § 1983. Even though we are lenient with pro se litigants, we will not construct arguments for her. See id. (“[T]he court cannot take on the responsibility of serving as the litigant’s attorney in constructing arguments.”). We DENY both requests for a CÓA and DISMISS the appeals. Ms. Jiron’s motion to proceed in forma pauperis is DENIED. All other pending motions are DENIED.